The silent half of Penn & Teller is an amazing writer, fine magic historian and incredible inventor of magic effects. You put those three talents together and you have someone you do not want on the other side of a lawsuit.
Beginning with the premise that a magic trick is not per se protectable by the Copyright Act, certain aspects of the magical presentation may be. Most lawyers would attempt to dissuade a client hoping to sue another performer over an alleged copyright infringement. The burden of proof is tough, the case law does not support that type of claim (in most cases) and because the case will rise or fall based on the facts developed through litigation, it will be expensive to pursue.
U.S. District Judge James Mahan of Nevada agreed that in most cases a magic trick is not subject to copyright protection but, he observed in his ruling on Teller’s behalf, pantomimes are explicitly protected by the Copyright Act.
The effect at the center of the dispute is Teller’s famous and baffling Shadows. Teller even registered “Shadows” with the U.S. Copyright Office in 1983.
Shadows essentially consists of a spotlight 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.
Gerard Dogge offered to sell the secret behind Shadows via an advertisement on YouTube for $3,500.00 and included plenty of Penn & Teller keywords to lure the curious to his page. Mr. Dogge claimed Teller’s copyright is not valid “because (A) it is registered as a dramatic work rather than a magic routine, (B) Teller abandoned his copyright, (C) Teller ‘openly challenged others to copy’ the work, and (D) Teller did not inform the public that Shadows is copyrighted.”
The judge wasn’t buying such foolishness. The court wrote, “despite Dogge’s numerous attempts to utter an incantation to make the copyright disappear, the court finds that Teller maintains a valid interest as the creator and owner of Shadows.”
And as we wrote, do not mess with Teller. He hired a private investigator to serve Mr. Dogge personally. Mr. Dogge tried to hide and allegedly evaded service in Belgium, Spain and other locations on the continent. Mr. Teller finally convinced the judge that Mr. Dogge had at least opened an email containing the service of process and complaint. That was sufficient for jurisdiction and Mr. Dogge was forced to answer the complaint.
The best line of the court’s opinion granting Teller summary judgment against Mr. Dogge came near the end:
Dogge contends that the works are not substantially similar because his secret to performing the illusion differs from Teller’s, and because he uses a clear glass bottle instead of a vase in his However the court finds that these reaching arguments by Dogge exceed his limited grasp of copyright law. By arguing that the secret to his illusion is different than Teller’s, Dogge implicitly argues about aspects of the performance that are not perceivable by the audience. In discerning substantial similarity, the court compares only the observable elements of the works in question. Therefore, whether Dogge uses Teller’s method, a technique known only by various holy men of the Himalayas, or even real magic is irrelevant, as the performances appear identical to an ordinary observer.
The judge got it exactly right.
It is rare that being a copyright lawyer / magician gives us a chance to write about a combination of our favorite subjects, but this case did it for us.
And now, as we say, it is all over but the shouting. By winning on summary judgment, Teller will be able to try the case solely on the issues of damages. He will not need to prove that Mr. Dogge infringed his valid copyright. If Teller can prove that Mr. Dogge willfully infringed, he could be entitled to statutory damages of $150,000.00. But, if he fails to prove wilful infringement (and it is a tough standard), he can still recover actual damages. We are confident it is not the money that matters – although it does not hurt – but the principle.
Congratulations to Teller and to the court. They came together to make good law, bring justice to an injustice situation and preserve the great tradition of creativity in magic.
We will post the order in The Inside Magic Library for those curious about the court’s ruling.