The Dead Man’s Spells

Magic has a fairly well-known problem with rights. If you are a performer or author, how can you protect your creations from theft? And if you are a publisher, how can you ensure that you follow best practices?

A sad reality is that all magicians with a successful show have to deal with other magicians trying to steal parts of their show. It can be methods, which are not visible to the lay public, effects, what exactly is demonstrated, or even full bits and pieces of the script. Magicians have tried to wrestle with the problem but have found few good solutions:

Patents only apply to methods; in theory, they stop others from using or reselling your methods. However, they require making magic secrets public, and since methods are invisible from the audience’s perspective, they provide very partial protection (a thief can always swear that they are employing a different method).

Copyright applies mostly to written words (we will come back to that later) but can be applied to specific performances (as long as they are recorded and scripted). This is a common approach in theater, but it shields only the script and specific aspects of the performance, not the effect itself (tomorrow all magicians in Paris will still be able to do their own version of your signature effect, “the Mindreading Guinea Pig,” as long as they can defend that the script and blocking are not directly infringing on your copyright).

The result is that magicians steal from each other all the time. There is little honor amongst performers and few ways of getting proper protection for one’s effects.

This extends to authors, magicians publishing effects for other magicians to use. Similarly to a cookbook, the exact wording is protected by copyright (meaning that you would need authorization from its rights owners to republish, translate, or directly draw from it) but the method, the recipe itself, is not covered. If I publish the secrets of “the Mindreading Guinea Pig” for others to learn and use, no one will be allowed to reuse the story of how I came up with the effect by watching my cat hunt a group of guinea pigs, but they will absolutely be allowed to publish an application of the exact same method to a very similar effect. Hell, they could even publish the method itself, alone and with no new application, and still be within their rights to do so.

(Here is a good point to remind you that I am not a lawyer and that you should not follow this advice as if it were legal advice.)

This is where theory and practice diverge. In practice, most magicians who republish existing ideas do it out of ignorance (they did not know that the idea already existed) or belief that their contribution to it constitutes a genuine improvement (a very subjective topic; my policy on the matter is that if you know you are building on an existing idea, then you should make your sources and contributions crystal clear). Magic authors function very much by an unwritten (and thus very variable from individual to individual) honor code that boils down to “following copyright for republication, and asking for permission or waiting for people to die for reuse of the underlying idea unless my contributions are sufficient to consider the release original.”

Publishers, eager to follow the law but also to keep gems from the past alive and accessible to the community, run into a particular difficulty: how to get the rights for republications? This requires the ability to contact the author (if they are alive, have known contact information, and respond to inquiries), their rights owners (usually a previous publisher, if it has not ceased operations, or family, which can usually only be found via close friends of the author who are still active in the magical community), or to wait for the work to fall into the public domain (you, as a publisher, might not live long enough for that: some people wrote early but then went off to survive for close to a century).

This brings me to the Dead Man Switch. My publications (if all co-authors agree to those terms) include a copyright statement that ends with:

"This work shall enter the public domain upon the confirmed death of Nestor Dee and his co-authors, at which time all rights herein described shall cease."

This is my best effort to lend a hand to future publishers and ensure that the work survives beyond me. My family does not need the money from late copyright dividends (and I have yet to hear of a magician’s family getting money after their death: as a general rule, either the work is influential and publishers are careful to keep the rights, or it is lesser known and it stays unpublished until it falls into the public domain) and there is no reason to keep those ideas out of the hands of law-abiding publishers (precisely the ones I would want to keep my work alive) with a traditional copyright statement.

If you are an author or publisher, I urge you to give this a thought. Many great texts have become virtually unavailable to the community because of copyright laws, and paper copies of those texts might have essentially disaggregated by the time they enter the public domain. Now is the time to think about our legacies and be the best stewards we can for the magical ideas we were gifted with. The best time to act was 70 years ago; the second best time is today.