penn-and-teller

Teller of Penn and Teller magic act sues over trick theft

April 16, 2012 at 8:31 AM ET

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Penn & Teller

Teller of Penn & Teller fame is suing Dutch entertainer Gerard Dogge for allegedly ripping off his copyrighted magic piece called "Shadows."

Dogge, whose stage name is Gerard Bakardy, has showcased his own illusion entitled "Rose & Her Shadow" in a YouTube video and allegedly offered to reveal the secrets for $3,050. Teller says he realized that it was a copy of "Shadows," called Dogge up on the phone and offered money if Dogge didn't disclose the mechanics of the illusion. The two couldn't come to an agreement, however, so Teller is now suing in a case that could help determine the level of protection that magicians have over their magic tricks.

The lawsuit was filed on Wednesday in federal court in Nevada, where Penn & Teller live and perform. Teller sues as "Teller, an individual" in the lawsuit and doesn't give his full name, although records attached to the complaint break some of the mystery by showing the action was brought by Raymond Teller.

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Here's a description of the magic act that Teller is attempting to protect:

“'Shadows' essentially consists of a spot light trained on a bud vase containing a rose. The light falls in a such a manner that the shadow of the real rose is projected onto a white screen positioned some distance behind it. Teller then enters the otherwise still scene with a large knife, and proceeds to use the knife to dramatically sever the leaves and petals of the rose’s shadow on the screen slowly, one-by-one, whereupon the corresponding leaves of the real rose sitting in the vase fall to the ground, breaking from the stem at exactly the point where Teller cut the shadow projected on the screen behind it. Upon information and belief, the magic trick “Shadows” was the first illusion of its kind."

Magic tricks are indeed copyrightable as "pantomimes," and the magician's chief challenge in this regard is making sure the works are "fixed in a tangible medium of expression from which the work can be performed," as the U.S. Copyright Office requires.

To make that happen, magicians need to figure out some sort of notation system or at least have recorded video of their work. It's not so different than, say, choreography. (See our post, Why an Allegation That Beyoncé Plagiarized Dance Moves Is Truly Unique.)

But if it's merely a video, alleging substantially similar expression -- not just a similar idea -- often becomes the pitfall. Robert Rice, a.k.a. the "Mystery Magician," learned this the hard way in 2003 when he sued Fox over its "Breaking the Magician's Code" specials, which he alleged infringed his own act. The 9th Circuit wrote:

"The mere fact that both The Mystery Magician and the Specials reveal the secrets behind magic tricks does not by itself constitute infringement. Rice's claim, therefore, may only succeed if the Specials infringed upon the presentation and stylistic elements of The Mystery Magician."

The appellate circuit confirmed the specials hadn't.

Fortunately, Teller has a potentially more potent arrow in his quiver. He actually wrote down the details of his performance, included a cute picture, and registered it with the U.S. Copyright Office in 1983. Here's a look at an excerpt of Teller's copyright registration, which doesn't even include his very funny "historical note" elsewhere in the copyright filing that says, "This Gothic pantomime has been performed by its creator over 1100 times since 1976. It's about time he registered a copyright, don't you think?"...

In Teller's lawsuit, the "Shadows" magic trick is described as having an "iconic quality" and being the "oldest, most venerated piece of material in continuous use in Penn & Teller's Show, and while other material has come and gone, it has remained as a universal favorite."

Now enter Dogge.

The Dutchman is said to have recorded a video of himself performing his work entitled "The Rose & Her Shadow" and posted it on YouTube. Underneath the text of the video, the defendant admits he has “seen the great Penn & Teller performing a similar trick and now I’m very happy to share my version….”

The YouTube video was posted with an advertisement offering to sell the magic trick to consumers.

Teller says he became aware of it on March 15 and instructed his attorneys to send YouTube a DMCA takedown notice. A week later, Teller contacted Dogge by phone and requested that he cease all use and offers to sell the work. Teller offered to pay, but Dogge allegedly refused the terms, counter-offering a larger sum, which Teller rejected.

So now Teller is suing for copyright infringement and unfair competition, seeking a declaration that the work is infringing, a permanent injunction against Dogge's use, and demanding damages. He is being represented by Mark Tratos at Greenberg Traurig.

Will Teller win? Hard to say. Showing substantial similarity in Dogge's act to what he wrote down nearly three decades ago will be a chore. But at least he had the foresight to make the effort of fixing his work in a tangible medium of expression and filing a formal registration, which is probably more than what 99 percent of other magicians out there do. Surely there are plenty of folks who believe magic shouldn't be copyrighted. But If he's successful here, it might be the best trick he's ever pulled off.

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