The Non-Fixed, Illusional Copyright

CTV published a report today about magic troubles involving the Dutch illusionist, Hans Klok The article explains that Klok was found liable by a Dutch court for copyright infringement of a magic trick developed by his former assistant, Magician Rafael van Herck. The magic trick that is the center of the litigation is described as involving a fight with a stubborn butler, reaching through his body to get a glass of water, and capped by smacking off his head.

Apparently, you need to see it to appreciate it.

The article explains that the Dutch court determined that the magic trick is copyright protectable because the "combination is unique."

Hans Klok

The Dutch decision granting copyright protection to a magic trick addresses an interesting issue under U.S. copyright law. That is, can a magic trick (or any performance art, for that matter) be protected by copyright? The U.S. Copyright Act, of course, establishes fixation as a central tenet of copyright. "Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression * * *." 17 U.S. §102(a). So, the lack of fixation in a tangible medium of a publicly performed magic trick causes any thought of copyright protection to disappear up the sleeve before our very eyes.

But wait.

While there may not be any copyright protection under federal copyright law, there may be protection under a particular state's copyright law. The U.S. Copyright Act preempts any conflicting state law equivalent to "the exclusive rights within the general scope of copyright." But federal preemption exists only as to "works of authorship that are fixed in a tangible medium of expression." 17 U.S. §301(a). There is no preemption under federal law for works not fixed. 17 U.S. §301(b).

Indeed, California has its own version of copyright protection for non-fixed works.Under Cal. Civ. Code §980(a)(1), the state of California grants copyright-like protection to an original work of authorship that is not fixed in a tangible medium of expression. This copyright-like coverage would certainly appear to extend to the public performance of a magic trick, particularly a trick that the Dutch court determined is unique. Indeed, what can be more non-fixed than an act of illusion?

Now you see me, now you ......................................