Stealing Shadows?

By Professor Jay Dougherty

A complaint filed by the magician Teller of the team Penn & Teller against a Dutch magician has been receiving much press and attention lately. Read more about the case here. It presents some fascinating issues and if they are not resolved on other grounds it could lead to the first decision regarding a category of works added expressly to the 1976 Copyright Act, namely those of "pantomime." I've written the leading article on the subject, "Now You Own It, Now You Don't: Copyright and Related Rights in Magic Productions and Performances," which was published in a book called "Law and Magic: A Collection of Essays." (The book is available on Amazon.) Professor Jim Grimmelman has posted a nice blog about it, hitting some of the issues.

Here's one link to Teller's copyright registration for his illusion, "Shadows." The claim is a "pantomime drama." The registration might have presumptive validity. As discussed more fully in my article, there's no statutory definition of pantomime, but the Compendium II of Copyright Office practices defines "pantomime" in part as: "the art of imitating or acting out situations, characters, or some other events with gestures and body movement." From what I've read of Teller's piece, and the illustrated "script" for it that was attached to his registration, it sounds like that could apply here. If so, copyright law gives him an exclusive right (in the U.S.) to "publicly perform" it, "publicly display" it, or "prepare derivative works" adapted from it. (It's not clear how one would "display" a pantomime, maybe in a still photo? There's a case finding which proves that still photos could infringe a choreographic work.) Of course, a court won't give copyright to the mere "idea" of the illusion, and since the YouTube video of the defendant's act has been removed I haven't compared the two. Also, the "method" or "system" of the illusion--how it is actually effectuated--might not be protected, although this can be a complex issue. There is also the "useful article" problem, but it would be interesting to see how a work that "portrays the appearance" of cutting a rose by cutting its shadow would be assessed. There would probably be some "thin" protection, but if the defendant's work is too similar in its expression, coupled with the presumption of validity, this suggests that Teller has more than a ghost of a chance!