Glenn Peterson, attorney, has long assisted his clients in their cases regarding intellectual property law. Some cases are easier to represent than others, though, due to the nature of the objects or processes that clients are looking to protect. A wonderful example of this comes from an article that was recently published by Wired, in which Rick Lax calls attention to the ways in which intellectual property laws are failing to meet the needs of magicians who are finding their tricks purloined and exploited by peers within the industry.
Ultimately, Lax asserts that copyright protections and trade secret laws do not cover the actual tricks that are developed by hardworking magicians, that instead they can only protect the choreography and props associated with it. Additionally, under the trade secret law, the improper sharing of secrets is prohibited while, for example, audience members are able to figure out the trick and then reproduce it on their own.
A former amateur illusionist and enthusiast of magic, as well as a highly regarded legal professional, attorney Glenn Peterson has released a statement to the press that highlights the ways in which intellectual property law impacts the magic industry. His statement is printed below.
“First and foremost, it is a common misunderstanding that IP law protects one’s ideas and punishes those who might steal them. Not so. On the contrary, IP law does nothing to protect an idea in the strict sense of the word. An idea itself is not protectable. What IP law protects are certain embodiments of an idea. Patents protect the practice of a novel, useful idea that is sufficiently described so as to be executable. Copyrights, on the other hand, protect the expression of an idea. Trademark and trade dress laws protect one’s commercial identity. Trade secret law protects information that is kept confidential and has economic value from the fact that it is not generally known or known to one’s competitors. Google’s search engine algorithm is a now familiar example that probably rivals the recipe to Coca-Cola in its notoriety. No doubt, there are many business people who would pay a princely sum to obtain the specifics of Google’s algorithm. The value is in its secrecy.”
Peterson continues: “But it seems to me that Mr. Lax gave short shrift to the idea of secrecy protecting magic tricks. After all, the magician’s code of secrecy is universally known, second only perhaps to the secrecy for which the Masonic Lodge is known. Magicians (performers) know most if not all of the same secrets known by their brothers and sisters in the Lodge (read ‘industry’).
“But the bottom line with IP law is that there are only certain ways to monetize (and protect) a good idea. This general proposition of IP law applies with no less relevance to the magic industry and to magic tricks specifically.”
Attorney Glenn Peterson goes on to explain that performance quality, not necessarily the tricks themselves, is what drives success for illusionists: “In the magic industry, one way to monetize a good idea for a trick is to perform it and make it your own. The other way to monetize a trick is to enable others to perform it by offering it for sale. And that is the hinge point of the dilemma. It seems simple enough to monetize a good trick by performing it, keeping it secret, and making it one’s own. And the quality of performance has a lot to do with how successful one’s efforts to monetize may be. Performance quality is what explains the success of Copperfield, Angel, and Penn and Teller, for example. Many of the tricks performed by them are known (or readily deducible) by their brothers and sisters in the Lodge. But it is the quality of performance that sets them apart.
“When one chooses to monetize a trick by selling it to others, he assumes the same enterprise risks that product manufacturers in other industries embrace every day. One of those risks is that your product will be imitated by competitors. There is no getting around this. It is a simple reality of being in business. So, like everyone else, the purveyor of a magic trick must find a way to protect his product by making it fit into one of the embodiments covered by IP law. If the trick involves a gimmick, it might be patented. If the trick involves protectable elements of expression, copyrights might be used. These are the same rules that apply to any product purveyor.”
Glenn Peterson, attorney, states: “But with magic tricks, isn’t the value really in their secrecy? Isn’t the thrill of seeing an illusion performed really about having your mind blown (or bent) by marveling at how it was done? In increasing numbers, the magician’s code of secrecy is being compromised online (sometimes by attention seekers, sometimes by those who wish to create ad space). So what the industry needs to be more concerned about is how to keep the performance of magic alive and relevant, not how to make it fit into a retail business model.”
Ultimately, the practice of magic is protected by its age-old code of secrecy. Those who wish to protect the retail business of magic must confront the same realities of business competition that apply to any other retail model.
Glenn Peterson, attorney, encourages anyone who has questions about intellectual property law to contact a legal representative to learn more.
Glenn Peterson, attorney, earned his law degree from the Pepperdine University School of Law in Malibu, California. He also holds a bachelor of arts in psychology from the University of California, Los Angeles. Now the owner of a boutique legal firm in Sacramento, California, Peterson provides legal guidance to clients regarding trademark, business litigation, business torts, intellectual property, franchise, and copyright cases. Aside from the representation of clients, Peterson is also active as a writer who has published numerous articles in highly regarded industry journals and he performs pro bono work to give back to the Sacramento community.