(By Luo Yanjie) Magic has long been a popular medium with which to entertain an audience, and how one should legally protect magic has long been a problem in the law. This problem has become especially obvious now that we have seen arguments regarding magic and the requirement that an expression be “original” as stipulated in the Copyright Law. Today, we would like to introduce to our readers how China protects magic works based on a case heard by the Beijing No.1 Intermediate People’s Court, which can be considered the first established case concerning the magic work.
Case summary:
Yigal Messika is an Israeli magician. In March 2008, Messika began to design a tool used in his magic show named Tarantula, through the operation of which the audience could see floating art objects. In order to display the technique and magic art effects, Messika filmed a DVD with the aid of others, and that DVD recorded Messika’s performance with the Tarantula, the final art effect in his magic and the audience’s reaction. The Tarantula DVD went on sale in the United States on February 29, 2000, accompanied by the Tarantula gimmick. Each pair was sold for $ 75. Later on, Messika heard that his product was being ripped off by a Chinese businessman starting in April 2009. In January 2009, Messika entrusted a local IPR agency (the “China IPR Company”) to purchase the Tarantula and DVD from the Jue Ke Culture Company and an individual named Yang Qi. Through a comparison, both had been selling the pirated Tarantula gimmick and DVD, and the copyright holder subsequently filed a lawsuit in court, demanding the cessation of any further infringement by the named defendants, removal of the magic gimmick, an apology, and joint compensation in the amount of RMB 100, 000 for losses suffered by the plaintiffs and RMB 166, 000 in attorney’s fees in order to protect the copyright infringed.
After the hearing, the court determined that despite the plaintiff not being a Chinese citizen but an Israeli, China, the US and Israel are all signatories to the Berne Convention, and pursuant to the Convention, once the plaintiff’s magic met the standards in China’s Copyright Law, it could be protected by China’s laws with equal force to that granted for Chinese magic works or other works.
The court further considered that the fundamental features of magic protected as an expression in the copyright laws are not found in the movements or gestures of the performer, but instead are found in the techniques or hidden devices or gimmicks that are not revealed to the audience. It is an accepted rule in magic performing circles that magicians “never reveal the secrets in the magic, never perform the same magic before the same audience, and never disclose the content of the magic performance.” Assuming these principles are followed, the secrets in a magic performance could be easily retained. As for the secrecy of the performance on its own, the magic is more commonly polished and perfected through practice by the magician. This should not be understood to mean that works perfected by others or works given to a magician should be excluded because he did not perfect the performance himself. In terms of the protection of the legal rights granted to the creator of the magic trick, as well as the secrecy of the magic, if no evidence is presented that the trick or performance is in fact the work of another and not the alleged copyright holder, it can be assumed the rights holder is the magician himself. In this case, the court assumed the magician to be the author of the Tarantula magic work, and therefore judged that only he enjoy the copyright over it.
In this case, the Tarantula DVD submitted by the plaintiff records the interaction between the plaintiff and a street audience in his magic performance, as well as a disclosure and demonstration of the magic trick by the plaintiff indoors. This can be considered a kind of originality at least to some extent, and could constitute a cinematographic work in China’s Copyright law. Regarding the magic trick itself, the magic shown in the DVD is an independent work recorded in the Tarantula DVD; the defendant’s unlicensed copying and publication of the Tarantula DVD a misuse of the overall work as a DVD, not a misuse of the magic trick as a separate subject matter. Due to this distinction, even thoug the Plaintiff in this case did in fact have copyright over the magic trick located in the Tarantula DVD, he could not claim that the defendants were copying the magic trick by way of pirating the DVD featuring the performance. Because of this distinction found in the facts of this case, the Plaintiff’s claims were denied.
Lawyer’s comments
Because this was a case of first impression involving the use of magic as the subject of copyright dispute, the case deserves our thought and analysis from the point of view of many legal aspects, and the following is our analysis based on the facts in the case:
1. The difference between magic and magic works
The Implementing Regulations for the Copyright Law classify “magic” into acrobatics work, and defines it as a work which “can be expressed in bodily movements and through the use of technique.” However, it should be clarified that the a magic technique cannot be considered a magic work. For example, imagine if two distinct magic tricks resemble each other in regard to technique, but are designed by different magicians, and the differences are reflected in regard to movements and so on – it’s likely they would be considered two separate works of original expression. Therefore, the magic itself is not considered an original work worthy of protection by the law, and it can only be considered a work after undergoing a modicum of design and arrangement by the magicians. Only then will it be protected by the Copyright Law.
2. Methods of Determining the Copyright Holder of a Magic Work
According to the Copyright Law:
“If no proof to the contrary is available, the citizen, legal person or other organization whose name appears on a work shall be the author.”
In regard to magic works, however, due to the inherent secrecy involved, it would not generally have “authorship.” For this reason, in terms of copyright ownership of the magic work, the court tacitly approved that the magician performing the work shall be the author in accordance with the accepted rules of the so-called “magic circle,” (meaning magic works are generally designed and arranged by the magician) when no evidence to the contrary is available and based upon a consideration of IPR protection. The court’s approach to this case can be taken as an example to follow in similar cases to come.
3. Why the magician lost the lawsuit
As discussed above, the plaintiff magician had been determined to be the copyright holder of the magic work; why did he lose his case? In regard to the court’s opinion, the pirated DVD involved in the case could be considered a cinematographic work. If one was to bring suit for the infringement of a cinematographic work, it would only focus on a movie being shot by others, and wouldn’t refer to the illegal copying or publication of said article by others. Moreover, pursuant to Article 15 of China’s Copyright Law:
“Copyright in a cinematographic work or a work created by virtue of the analogous method of film production shall vest in the producer.”
And as stated in the article, it does not regulate “the exercise of which, however, may not infringe the copyright in the preexistent work” as that has stipulated in Article 12. Also, there are no other regulations demanding that the use of a cinematographic work requires obtaining a license granted by the producer and copyright holder.
Taking into the account the laws and judgment handed down, it is clear that once a work is shot and becomes a cinematographic work, the holder of the magic work would have no way to claim any infringement against subsequent publication, sale or copy. Any unlicensed actions as described above shall be protected in the name of the cinematographic work instead of the magic work holder.
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