Law & Crime

A US federal court has ruled that magician Teller can maintain his silence on his most famous trick. By Elmo Keep.

Teller wins copyright lawsuit over magic trick ’Shadows’

Teller, half of the magic duo Penn & Teller.
Teller, half of the magic duo Penn & Teller.
Credit: Aurora Photos/Alamy
In March, the American magician Teller won a ruling from the Nevada federal court over copyright infringement of “Shadows”, a famous, original illusion he has been performing since 1976. It had come to Teller’s attention in 2010 that there was someone on YouTube performing his trick, which they had renamed “The Rose and Her Shadow”, offering to sell its secret to anyone who wanted it for $US3050. 

Teller, the professionally mute half of Penn & Teller, issued a takedown notice with YouTube, which complied, and contacted the man in the video directly via the email address he included on the site. Teller tried and failed to get the man, Gerard Dogge of Belgium, to not sell his signature trick. Private negotiations failed and Teller continued with legal action. Dogge then did all he could to avoid being served with a writ until Teller was allowed to serve it in absentia.

In his summary judgement, US District judge James Mahan declared that “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’.” The case is set to go to trial to decide on damages.

It’s easy to imagine Teller patiently and silently pursuing this for years in much the same way he dedicates years to perfecting his illusions. In the case of “Shadows”, long regarded as one of the greatest tricks in all of magic on account of its complexity, Teller had even offered to compensate Dogge for the hours he had spent working on figuring out the trick in an effort to prevent him from selling it to others – as well as to pay him for his work. In 2012, Esquire magazine had quoted the figure at $US100,000, which Dogge refused. When contacted for comment in the wake of the favourable judgement two years later, characteristically Teller replied through his publicist that he would “not be doing any press or making any public statements”. 

Magic tricks, being in essence ideas, cannot be copyrighted. But the expression of the idea as a dramatic work or performance can be. Trying to protect tricks from thieves by enshrining their copyright inside performances goes back to Houdini, who used pantomimes in an effort to stave off imitators by registering the works with the US copyright office. It was a neat trick, borrowed by Teller, and employed in this instance to great effect. He registered “Shadows” as a dramatic work, with illustrations carefully drawn so as not to reveal the mechanics of the trick, in 1983. 

Magic can only be performed by never giving away how it works. This is the literal meaning of occult, or secret knowledge, and to give it away within magic is known as exposure. 

“As a magician you have only one job, which is don’t tell people how it’s done,” says Melbourne magician and author Nicholas Johnson, who specialises in card cheating, swindling and short cons. “But due to the internet and DVD piracy those secrets are scattered in the wind now. So it’s a totally different professional game to what it was even five years ago.”

On the lengths that Teller went to in order to protect “Shadows”, Johnson recalls talking with a friend of the magician’s and admiring the clever way he’d gone about it. “‘Shadows’ in particular, he had such a strong desire to intellectually protect it that he went to those lengths. Unfortunately most of us can’t afford to get lawyers to protect our work, so we have to rely on other means.”

While the magician’s code as such is more myth than reality, it does often fall to social conventions to enforce norms around acceptable behaviour in instances of plagiarism when laws are imperfect for addressing intellectual dishonesties. Comedians who steal jokes, magicians who reveal tricks and writers who pass others’ work off as their own are more often brought into line by the stinging rebuke of public shaming and shunning from their own communities than they are by the letter of the law. It only takes changing the expression of an idea very slightly to skirt copyright infringement legally. It is vital for ideas to fall outside the bounds of copyright in the interest of those ideas being furthered and built on by others. The risk is when an idea isn’t changed significantly or built upon or used to further a field of inquiry or art, but taken verbatim by someone else, usually for their financial gain. 

Then there are the people who just don’t care – either about being shamed or about taking other people’s ideas – and in the case of Dogge, the law found that his performative expression of Teller’s idea was sufficiently similar as to be infringing. Setting aside the elements that aren’t copyrightable, Mahan found: “Teller’s ‘Shadows’ and Dogge’s ‘The Rose and Her Shadow’ are nearly identical twins.”

Where once learning magic was a challenging prospect that required apprenticeship and years scouring libraries for extremely obscure and very old books, searching on YouTube can now lead anyone with even a passing interest in cardistry to pick up a passable trick in less than an hour. It will be done very badly, but the secret to the trick is revealed. There are hundreds of these videos with many thousands of views apiece, for everything from very basic tricks to tremendously complicated ones of which previously few people knew the workings. 

Patented tricks can be bought from makers and in magic shops, or from websites in China where knockoffs are made much more cheaply and with no compensation to the original artist. On the social news site Reddit, two competing magic arts communities exist: one where exposure is strictly forbidden and becoming a member requires passing a series of complicated proofs, and one where anyone can join and all secrets of all tricks are freely discussed in the interest of more people learning how to perform magic. The former is almost exclusively filled with professional magicians, the latter with amateurs. The groups trade insults and regard each other with suspicion. “DO NOT MESSAGE US FOR THEIR ACCESS,” warns the page for anyone who might have strayed incorrectly looking for the private group. 

Penn had once said about “Shadows”, with a magician’s hyperbole, “No one will ever figure it out!” In his defence, Dogge had stated that the declaration was an invitation to master it. Judge Mahan was not persuaded by this reasoning, ruling that it was perhaps an invitation  to work out the trick, but “not perform the work”. 

As is so often a paradox in exposing information, its side effect can be an increase in secrecy. Johnson says that an upside to the way almost everything is freely available now is that it forces true innovation and originality upon artists, in order to stand out from a crowd flooded with poorly performed versions of watered-down tricks. It also means he doesn’t share his work, other than in a live performance setting: the tricks exist only in the time they are performed. 

“I have become more specific in what I do, and I choose things that I know other people are doing and try to do them in a way that they are not,” he says. “Because I don’t want to be competing with all the same guys doing all the same things. 

“There are a lot more amateur magicians out there now. Amateur magicians are the ones who will do 10,000 tricks once, whereas professionals will do one trick 10,000 times,” Johnson says. “Amateurs are so good because they make a larger pool of knowledge to draw from. The problem is that the larger that body of knowledge becomes, the less amazing the magic gets. So something like ‘Shadows’ is so special because so few people know how it’s done and you can’t just Google the answer to figure it out.” 

Johnson says that there is one trick that remains a mystery – the holy grail of magic. It’s a card trick from the 1970s called the “Berglas Effect”, the secret of which is known by only two people. The performer will call up two audience members, one to pick a number (say, 12), and the other any card (say, Queen of Hearts). The cards are then counted off by a third audience member and the 12th card will be the Queen of Hearts. There are no stooges in the audience. The magician never touches the deck. 

The “Berglas Effect” is on YouTube, free to watch again and again. Hundreds of thousands of people have done so, but the magic remains unsolved.

This article was first published in the print edition of The Saturday Paper on June 28, 2014 as "Abuse your illusion".

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Elmo Keep is a writer, broadcaster and digital director with The Lifted Brow.

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