Intellectual Property Protection to Magic Tricks in India
Right from pebbles jumping from one place to another till woman being cut in half, magicians have been involved in taming the laws of nature. These conjurors are the performers of magic tricks such as pulling rabbits from hats, turning a handkerchief into a flower, and disappearing almost everything. Magic tricks derive its roots from ancient history. Magicians used to be the entertainers of those times and generally travel from place to place to entertain public through their performances. Their ideas and methods of trickery make the magic possible.
However, despite having innovative ideas and methodology and such overwhelming response from the audience, these magicians get very little assistance for the protection of their magic tricks. With the development of intellectual property laws, almost everything is protected under the laws. But, the protection of magic tricks under intellectual property laws is still a grey area which needs the consciousness of the lawmakers. They still lack the proprietary or exclusive rights in their methods or ideas.
Magic industry suffers from the everyday risks of stealing and exposure. However, the free flow of innovative ideas amongst the audience gives those magicians an exclusive right at least until the end of the performance. But, the chances of being copied further are very high and this diminishes the zeal of the conjurors. Although magicians seek to maximize the amount of sharing of magic tricks with the magic community but simultaneously seeks protection of their ideas from being stolen.
It is believed that the traditional available IPs which can provide protection not exclusively but to some extent can be patents, copyrights, and trade secrets. But it is not the case.
A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To qualify for a patent, the invention must be novel, non-obvious and should be capable of industrial application. Moreover, to get a patent, technical information about the invention must be disclosed to the public in a patent application.
In the instant case, magic tricks having innovative ideas can be novel and non-obvious but it is nowhere capable of industrial application. Besides, the disclosure of the invention to the public would forfeit the very essence of the magic tricks. Thus, magic tricks are not capable of being patented.
It is the exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material. However, copyright does not protect ideas but an expression of those ideas. Thus, the idea-expression dichotomy clearly specifies that mere ideas are not entitled to copyright protection. But if the magician transcribes his ideas or methods, then it can be a subject matter of copyright.
Furthermore, if anyone infringes the copyright, the matter goes to the court where the parties have to disclose their methodology of magic tricks which makes the secrecy of those tricks futile. Thus, copyright is also not the best way to provide protection to magic tricks.
According to Canadian Intellectual Property Office, Trade secrets include any valuable business information that derives its value from the secrecy. Trade secrets can be very valuable to one who has developed new technology, designed original products, created the perfect recipe, or have a gold mine of customer data. One of the most famous trade secrets is the Coca-Cola formula—a well-guarded secret for over 100 years. The business value of the formula is why the company goes to extremes to keep it confidential.
Likewise, magic tricks ideas and methods can be kept as a trade secret. All the confidential information belonging to the magicians can be protected through Non-Disclosure contracts or confidentiality agreements under Trade secret. The contracts can be released to staff or partners and they shall be obligated to keep it secret under the contract.
Such contracts allow every magician to enforce silence amongst the apprentice and other compeers. In any event of illegal disclosure or data theft by the parties to the contract, magicians can directly approach the court. However, if anyone guesses the idea or methodology behind the magic trick, such persons cannot be penalized or taken to the courts.
Thus, it is deduced from the above discussion that there is no single law which can provide absolute protection to the magic tricks and hence requires significant attention of framers of law.
– Poornika Kumari
Content Writer @ Legal Bites