It is a short answer and gets us out of writing a big, long-winded piece on the legalities but perhaps inadequate.
The BBC’s homepage today features Magician and Lawyer Guy Hollingworth to entertain and teach on the issue of what the law has to say about an art designed to avoid laws of nature. (They call him a “Barrister” – we presume that is the metric equivalent of our “Lawyer”)
It is comforting to see that the country from which we have derived the greater part of our legal system, has not backslid into the easy but philosophically unsound world where an idea can be protected. The United Kingdom wants to encourage innovation but draws understands it must draw the line somewhere.
In the case of magic tricks, one can patent the method to perform the effect or even copyright the patter used to describe and deceive; but one may not protect the idea behind the trick itself.
For instance, the secret behind our now-classic Marked One-Way Forcing Deck can be stolen by just about anyone. Of course, some print critics of our invention have suggested “[w]hy would anyone want to steal the idea of a One-Way Forcing Deck that is marked as well?” Regardless, it is not being knocked-off or copied by folks looking to cash in on our genius. We like to think that is because our brothers and sisters in Magic are ethical folk.
By the way, we will soon announce the follow-up to the Marked One-Way Forcing Deck, The Inside Magic Marked Billiard Balls. No longer will you have to guess about the location of any particular billiard ball whilst you make them appear or disappear.
Mr. Hollingworth, like us, works as an intellectual property attorney and magician. He just does it with more charm and better suits. Still his legal advice is almost identical to what we would counsel a brother or sister magician.
Yes, it is possible to patent a magic trick or copyright the presentation, but why would you want to?
We note Mr. Hollingworth would not likely end his sentence with a preposition.
“The kind of magic that has been patented tends to be the species of detailed large scale illusions practised by the likes of David Blaine and David Copperfield,” says Hollingworth.
“That’s perhaps a hangover from the hey day of the grand illusion where magicians would travel the globe performing stage spectaculars at which it was not unknown for other magicians to attend, watch, and even jump up on stage, run around the back, and see just how the illusion was created.”
Indeed, we have had many an audience member suddenly stand and run during our shows. They rarely run towards the stage, however.
The downside of patenting a magic trick, Mr. Hollingworth observes, is that a patent must expose the secret the magician desires to protect. Our magician-side sees the patenting process as long, expensive, and ultimately counter-productive. And yet, our lawyer-side would be happy to bill you per hour to process the patent application.
Our best defense to exposure is our unity against exposure. Since the law will not sufficiently protect a magic secrets, magicians have been forced to take the law into their own hands. Or maybe a better way to put it: magicians were forced to make up their own law and enforce it amongst themselves.
Yes, you can learn a secret or two out of a magic book but you need to go to the trouble of finding the book, opening it up, sounding out the words, not be distracted by the pictures, and remember what you read. That is a rare skill set these days.
Mr. Hollingworth notes, “most people aren’t sufficiently motivated to go and find out how they are done. But it is difficult to for a magician to argue that they have maintained a trade secret.”
A true trade secret — at least in U.S. law — is actually entitled to some protection in the courts. To be a trade secret, it has to be kept truly secret and among only a few individuals who have an absolute need to know. So Colonel Sanders’ Secret 11 Herbs and Spices, or the Coca-Cola formula are closer to trade secrets than, say, The Pea Can or TV Magic Cards.
(Legal Note: Neither are actually trade secrets in the truest sense. Chances are, we will never know true trade secrets — hence the name “trade secret.”)
Colonel Sanders and Dr. Pemberton of Coca-Cola never intended for competitors to learn their secrets. They took steps to prevent disclosure and even instituted process controls to limit the number of individuals within their respective organizations with knowledge.
The legal model of a trade secret is 179 to 181 degrees opposite a magic secret. It is tough something is secret if you advertise it on television with the catch-line, “It’s easy, once you know the secret.”
And so, we come full circle. Check out Mr. Hollingworth performing some incredible magic on a television channel — but keeping the secrets well-hidden.