Copyright, Patents

Trick Or Cheat? A Pair Of Magicians Have Their Day In Court

The cases of two magicians who used the legal system to try to take their secrets to the grave.

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In 1926, Harry Houdini did not have a happy Halloween. The world-famous magician and escape artist died on October 31, 1926, at the age of 52. The man who appeared to cheat death countless times died of peritonitis, the last in a month-long series of injuries and ailments that included a ruptured appendix — the result of surprise punches to his stomach from a McGill University student. This week, On Remand looks back at The Great Houdini and the cases of two magicians who used the legal system to try to take their secrets to the grave…

Born in Budapest in 1874, Houdini (born Erik Weisz) immigrated with his family to Appleton, Wisconsin, at the age of four. Five years later, he joined the circus as a trapeze artist, launching his career as a performer. By the age of eighteen, young Erik Weisz had left the circus and his name behind. Adopting the moniker Harry Houdini, he embarked on a career as a professional magician and escape artist. Early in his career, Houdini focused on handcuff and prison escapes. (In 1902, Houdini escaped from the federal prison cell in Washington that once held President Garfield’s assassin, Charles Guiteau.) He then moved on to escapes that were more dramatic — and more dangerous. Houdini’s death-defying escapes included freeing himself from a sealed milk can, “Chinese water torture cell,” and a straightjacket while suspended from a crane. Houdini also performed several variations of a “buried alive” stunt.

In 1933, a few years after Houdini’s death, R.J. Reynolds began a Camel cigarette ad campaign centered on dispelling illusion. “It’s Fun to Be Fooled . . . It’s More Fun To Know,” the ads proclaimed. Each ad in the series tackled one trick, such as “Shooting Through a Woman” or “Dancing on Glass.” Under a cartoon of each trick, the ad revealed the secret, comparing magicians’ illusions to tricks used in cigarette advertising. R.J. Reynolds, however, promised that it used “No Tricks – Just Costlier Tobaccos” in producing Camels. Among the many illusions covered in the campaign were Houdini’s milk can escape and sawing a person in two.

Houdini, permanently six feet under when the campaign ran, couldn’t complain. But another magician, Horace Goldin, sued R.J. Reynolds for unfair competition, claiming this ad revealed how he sawed a person in two. By the time of the ad, Goldin had been performing the trick for over 20 years. He even had a patent for the box used in the trick, and licensed it to another magician.

R.J. Reynolds denied revealing Goldin’s secret. It argued Goldin had done that himself in his 1923 patent for the box (a condition of receiving a patent is providing a detailed public disclosure of the invention). According to Goldin’s patent, the “magic” was that two people, not just one, were in the box:

. . . preparatory to the exhibition, a person is concealed in the lower box . . . A second person may now be lowered in the box in sight of the audience, his or her head projecting from the opening. . .

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The trick had also been revealed by other parties in several publications prior to the R.J. Reynolds ad campaign.

The court made Goldin’s complaint disappear. It agreed with R.J. Reynolds that the company had only repeated publicly available information:

Having patented his apparatus for performing the illusion, [Goldin] published the secret of the illusion. That which up to the time of the issuance of the patent was a secret ceased to be such upon the granting of the patent, for the patent itself is a publication of the secret.

The court also found that the Camel ad merely stated the obvious:

Certainly no one in the audience is naïve enough to believe that the subject is actually severed into two parts. . . .The average person would know that one way of performing the illusion would be to use two girls.

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Goldin was silenced, but in a recent case over a magic trick, Teller, the silent member of the comedy and magic duo Penn & Teller, had the last word. After a Dutch performer named Gerard Dogge (a.k.a. Gerard Bakardy) posted to YouTube “The Rose and Her Shadow,” his version of Teller’s copyrighted illusion “Shadows,” and offered to reveal the secret of the trick, Teller sued him. (As covered in Above the Law, Dogge’s next trick was a disappearing act, attempting to dodge service. He was unsuccessful.)

When Teller filed his 2012 complaint alleging copyright infringement and unfair competition, he had been performing “Shadows” for more than 35 years. As described in Teller’s 1983 copyright application for the “gothic pantomime,” a spotlight projects a shadow of a rose in a vase onto a screen. Using a knife, a character, whom Teller calls “The Murderer,” cuts the leaves and petals of the rose’s shadow on the screen. As The Murderer prunes the shadow, the leaves and petals of the real rose fall.

The illusion concludes when The Murderer pricks his finger with the knife, and the shadow of the finger bleeds. The Murderer then wipes his hand across the screen, leaving a macabre stream of blood. Here, the description of the illusion in Teller’s copyright application ends. He adds only that “The light fades out quickly. THE END.” Teller does not reveal the secret to his illusion.

To prove copyright infringement, Teller had to show that Dogge’s performance of “The Rose and Her Shadow” was substantially similar to “Shadows.” According to the Nevada court, Dogge’s version of the trick was nearly identical, but for slightly different props and a less bloody ending (Dogge poured the water out of the vase). Dogge argued that the works were not substantially similar because his secret was different from Teller’s. However, the court was not fooled by this misdirection:

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.

Consequently, the court ruled that Dogge had infringed Teller’s copyright in “Shadows.” Earlier this month, the court entered default judgment against Dogge, and awarded Teller $530,000 in statutory damages, fees, and costs.

Although long gone, Houdini’s remarkable life and feats still fascinate. In 1920, Funk & Wagnall’s New Dictionary made Houdini’s name a verb; to “houdinize” meant “to release or extricate oneself from confinement, bonds or the like, as by wriggling out.” Houdini himself must have been proud of this accolade, as he included it in his letterhead. (While “houdinize” is no longer found in dictionaries, today the word “Houdini” is a noun meaning “an escape artist or other ingenious person.”) Houdini has also been portrayed in film many times, including by Tony Curtis, Harvey Keitel, Norman Mailer, Guy Pearce, and most recently, Adrien Brody. Dogge and Teller’s dispute appears buried as well.  Although Dogge refused to appear in the Nevada court, he posted a video (see at 7:10) and a website telling his version of the story, concluding that “[t]he litigation about a tiny rose doesn’t smell like a rose.”

Samantha Beckett (not her real name) is an attorney with more than ten years of experience working in Biglaw. When not traveling back in time, she is most likely billing it. Her writing has been featured in state and federal courts across the nation and in the inboxes of countless clients, colleagues, and NSA analysts. She can be reached at OnRemand@gmail.com.

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