(By Luo Yanjie)
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. Messika filmed a DVD recording his performance with the Tarantula. 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. The copyright holder subsequently filed a lawsuit in court to protect the copyright infringed. The Court held that, because China, the US and Israel are all signatories to the Berne Convention, once the plaintiff’s magic met the standards in China’s Copyright Law, it could be protected by China’s laws.
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. 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 him enjoys the copyright over it.
In this case, the Tarantula DVD 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 shown in the DVD, it 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 though the Plaintiff in this case did in fact have copyright over the magic trick displayed 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 case involved the use of magic as the subject of copyright dispute, it deserves our analysis :
1. The difference between magic and magic works
The Implementing Regulations for the Copyright Law classifies “magic” into acrobatics work, and defines it as a work which “can be expressed in bodily movements and through the use of technique.” Therefore, the magic itself is not considered an original work worthy of protection by 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.”Because of the inherent secrecy involved in 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) since no evidence to the contrary were available. 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 could be considered as 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 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 be enjoyed by 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 stipulated in Article 12.
Taking into the account the laws and judgement 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.
We posted this article several months ago which might be too long to read it on. Our intern Mr. Le Duc helped us to abstract it again. You may click here for the detailed post, if you prefer to know more on the case.
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