Nyemaster Goode, P.C.

Thorns Accompany the Rose - Teller Files Suit to Prevent Infringement of Copyrighted Magic Trick

By Wendy Marsh

In a lawsuit filed last week in Nevada federal court, Teller, the silent member of the famed magical duo Penn and Teller, sued rival magician Gerald Dogge (stage name Gerald Bakardy) for allegedly stealing one of Teller's most famous illusions known as "Shadows." The lawsuit contends Dogge saw Teller's trick and developed his own version of the magic trick. He then offered to sell the trick on YouTube and in magazine ads for $3,050 as part of a "kit" that included the component parts of the magic trick along with instructions and a DVD. Teller discovered the ads and was able to have the YouTube video taken down through YouTube's complaint procedure. Teller offered to pay Dogge to settle the legal claim, but the parties were unable to agree on a price.

The "Shadows" illusion involves the use of a rose in a vase, which is placed behind a white screen. A spotlight is then shone on the vase so as to cast a shadow on the screen. The magician then uses a dagger to "cut" portions of the shadow rose while the corresponding parts of the real rose are likewise "magically" cut and fall to the ground. Teller alleges in the complaint that his copyright in the magic trick prevents Dogge from selling his version of the trick. Teller applied for and received a copyright registration for his magic trick back in 1983. According to the registration, the trick had been performed numerous times by Penn and Teller since 1976 and is still regularly performed by the duo.

The copyright laws allow for the protection of magical tricks in some instances as a dramatic work where the magician or "author" of the trick provides some type of documentation or video demonstration of the trick. In Teller's case, along with his copyright application he submitted a humorous sketch depicting the mechanics of the trick. Copyright law protects the expression of ideas but not the ideas themselves. As such, the components of the trick, i.e., the rose, vase, shadow effect, and technical details of the trick are not protectable. No doubt a primary issue in the case will be whether the sequence of actions in the trick are sufficiently original so as to qualify for copyright protection. Another likely key issue will be whether Dogge's version of the trick is "substantially similar" to Teller's, as a required element of a claim of copyright violation.


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