Create, Consult, Control
News & commentary on intellectual property issues.
Jun172009 | Steve O'Donnell
Patenting illusions II
Do you have an illusion that could be patented? If so, should you patent it?
Magic inventions probably fall into one of two categories, gaffs and methods. Both may be patentable. The first thing to consider is whether your new illusion is really new. A new Topit design might be patentable, but stringing together an old card force with an old billet trick, even though no one has ever thought to do it in that way before, is probably not patentable. That doesn't mean that a patent for a card force is necessarily impossible, but it may be difficult to convince the patent examiner of that. On the other hand, since much of magic is not widely known, it might be difficult for an examiner to find prior art that would kill an application. Keep in mind that hiding information from the patent office may result in a patent that is ultimately unenforceable and expose you to civil liability if you try to enforce it.
If you do get a patent on your trick, what do you do with it? There are a few ways of making money from a patent. One would be if it was such a great trick that people would pay to see you perform that one trick. I have a hard time imagining an act that is one trick long, although shady mentalists have been bilking money out of people with little more for centuries. Another way of making money would be to either license the patent or to sell it outright. Licensing is really similar to what is done already under the Magician's Code model. A person would buy a packet trick and get a license to perform it. Unlike the Magician's Code model though, someone that learns the secret without paying for it may be liable for patent infringement damages and the person that shares the secret could be liable for indirect infringement.
Discovering that someone is infringing a patent is a different issue. A patent covering a intricate gaff is going to be much easier than discovering that someone is infringing a patent covering a method of performing an illusion. The first case likely would involve one of a fairly short list of companies, while the second could be someone performing at a birthday party.
Other than the money that could directly be made from a patent, there might also be a secondary value to a patent on an illusion if it increases the inventor's visibility and reputation in the community. An instructional DVD, seminar, or performance poster will likely get more attention if it rightly declares that the inventor is such a creative innovator that the US has granted a patent to his illusion(s).
Whether or not it makes financial sense to invest in obtaining a patent for an illusion is something that needs to be determined on a case-by-case basis. In addition to getting a patentability opinion from a patent lawyer, the inventor might also want to discuss the plan with a business manager.
I would love to work on magic patents. If you think you have something novel, please let me know and I'll see what I can do for you.
If you are a member of the Magic Cafe [http://www.themagiccafe.com] these is a great list there of magic patents in Secret Sessions, search for “Magic Patents - a list.” You'll need 50 valid posts, I think, to access that forum. . . which if you've read this far probably isn't a problem.
Jun162009 | Steve O'Donnell
Patenting illusions
Remember that “Masked Magician” that showed how a number of illusions were done during a series of specials on Fox a few years ago? He upset a lot of magicians by doing that. Could patenting illusions stop such exposure? Can illusions be patented?
When I was in grade school I had a Marshall Brodine magic kit that I studied tirelessly but eventually lost interest in. Years later, I picked up the magic habit again, and again put it down to chase all the other things that teenage boys chase. Then in graduate school I picked it up again. It was around this time that the Masked Magician made his debut. Fast forward a few years and the time constraints of the practice of law and having two kids has made me put down the hobby again although I do pull out the odd Tenkai palm or card force once in a while.
That aside, are patents a good way of protecting illusions? That depends. A few years ago I probably would have said no for most, but I think that has changed and more magicians should seriously consider patenting their original illusions.
The obvious argument against patenting illusions is that patents are public. That's the deal, you teach the public how to do something and in exchange, you get a temporary monopoly on it. Generally, magicians don't want to share their knowledge with the public at large (at least not until someone buys their instructional DVD). Patent applications are published 18 months after they are filed, so by that time, the cat would be out of the bag. In an attempt to avoid large scale exposure, many simply try to live by or enforce the “Magician's Code,” whereby one doesn't get to freely give away secrets and still be part of the fraternity. Of course, that only works if everyone agrees not to share the information they've obtained from someone else.
The Magician's Code worked fairly well for hundreds of years. Even having books at the public library that freely gave away secrets did not erode the public's general ignorance of how illusions are performed. If anything, it encouraged interested people to join the fraternity and support innovators by buying instructional materials and gaffs.
The internet has changed the game for many industries including the business of magic. Instructional books and DVDs can be found on P2P sites or by downloading a torrent file. This itself is one problem, but a bigger problem might be that it's too easy to find a secret these days. If you can describe a trick, you can probably find an explanation online. If not, one of your Facebook friends or twitter followers will probably tell you how it's done.
A patent won't change that, but the disclosure required to get a patent doesn't matter anymore since the information is going to be available online shortly after the trick is first sold if not earlier.
How would patent protection work? That's for tomorrow.
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