In law, one of the most difficult kinds of cases to finalize is that of copyright. Such is the case even more so when it comes go magic tricks, a performance art, which is not copyrightable in the US. In a recent copyright lawsuit, however, something magical happened due to the questionable defense of Belgian entertainer Gerard Dogge; magician Teller wins a suit accusing the Belgian man of copying his act Shadows.
Among magic fans, Shadows is arguably one of Teller’s (of Penn and Teller fame) most famous acts. The trick is set up with a flowered vase on a stand in front of a spotlight that has the object silhouetted on a paper tarp behind him. With a knife in hand, the magician stabs the shadow and results in the shadow on the wall being cut to the bottom of the tarp, branch by branch. For the finale, he wipes his bloody hand against the sheet.
Dogge of course mimicked the entire act on his Youtube channel, suspiciously calling it The Rose & Her Shadow. When he posted the video, he stated how he wanted to show the world how to conduct the trick for a sum of $3,050. The latter statement of course is how the Belgian appeared on Teller’s radar, which is why he brought it upon himself to sue for copying his act.
However, bringing about the suit to Dogge was a difficult one considering for the longest time he didn’t have an accurate mailing address. Determined, Teller served him via email, and as a result proved to the judge that Dogge had read and ignored the papers, resulting in the lawsuit being accepted in court.
If Dogge’s evasion wasn’t enough to prove to the judge his knowledge of copying Teller’s act, it got worse for the foreign entertainer.
His first defense was that a magic trick was not copyrightable, which is an understandable defense, because they are not copyrightable in the US — per say. What wins in this copyright lawsuit in the case of Shadows and trumps Dogge’s questionable defense is due to Teller using gestures and theatrics primarily for the filed act. The only piece that is a trick and therefore, not copyrightable is the shadows being cut.
Secondly, the entertainer’s attorney said that his client believed the copyright was abandoned due to many others attempting the same trick, yet Teller didn’t attempt to press copyright charges against them. Without much evidence, this allegation was dismissed by the court.
It was the third defense that led the Belgian down a slippery slope. He believes that by Teller’s partner Penn Jillette proclaiming that no one would ever be able to solve the trick that it was an invitation for Dogge to prove him wrong. After extensive examination of Jillette’s quote, the judge believed it urged people to find out how to accomplish the feat opposed to taking advantage and performing it to a wide audience.
The final point of the defense was the notion that Dogge was able to copy the work due to the originator not stating the act was a copyrighted work. This reasoning was not valid due to Shadows or any particular work not needing a notice prior to performance. Furthermore, evidence was placed showing that Dogge did receive notice when Teller emailed him in March 2012, stating that it was copyrighted, thus proving the defendant wasn’t speaking the entire truth.
While Teller has won on principle, the case isn’t over. Next, the sum of damages will be argued in court. He will be awarded up to $150,000 if the copied act is shown as being created willfully; otherwise, the legendary magician will only receive $30,000.
While not the first magician to win a copyright case, Teller is on a short list with Robert Rice and David Copperfield who have both won their cases. Considering the evidence at hand, it seems due to Dogge’s questionable defense accusations is what wins Teller the copyright lawsuit.
By Simon Mounsey