By Jacob Loshin

J.D., 2007, Yale Law School

7/25/07

--WORKING DRAFT--

Please send any reactions or comments to: Jacob.Loshin@gmail.com

Electronic copy available at: http://ssrn.com/abstract=1005564

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For centuries, magicians have sought to tame the laws of nature. They have made pebbles

jump from place to place, pulled rabbits from hats, made canes dance, turned doves into

handkerchiefs, plucked cards and coins from thin air, levitated their assistants in midair, sawed

ladies in half, and made nearly everything disappear—from coins to elephants to the Statue of

course, this enchanting control over the laws of nature has usually also been presented with a

knowing wink of the eye. These magicians are not demigods, but rather performers and

entertainers who we ask to suspend our disbelief by way of illusion, artifice, and prestidigitation.

“[I]t is the very trickery that pleases me,” Seneca wrote long ago. “But show me how the trick is

world around them, for our amusement, depends on their ability to control the ideas and methods

of their art—the hidden “trickery” that makes magic possible.

Yet, despite the overwhelming importance of this intellectual property to the magic

community, the law of intellectual property (“IP”) offers magicians very little assistance.

Magicians labor in what has come to be known as IP’s “negative space,” an area of creative

from such negative spaces, since the dynamics of low-IP industries can inform views about the

nature and necessity of IP protections in more frequently discussed high-IP industries. So far,

scholars have begun to glean insights from the fashion industry and the culinary industry, two

1917).

paper furthers the effort by studying the unique dynamics of another negative space—the

community of professional and amateur performing magicians. Although a few legal scholars

workings there. Hence, for the first time, this paper pulls back the curtain, a bit, on the world of

magic.

But not too much. You will not find here the secrets to how magicians perform their

many feats of mystery. Sorry, tough luck. This paper will, however, reveal the secret to a

different sort of mystery. The standard economic theory of intellectual property holds that law

must delimit and enforce property rights in order to promote innovation. Without such legal

protection, creators lack an incentive to invest in future innovation. After all, why develop and

invest in an idea if you know that it can be used by a competitor without legal consequence? If

intellectual property law does not protect ideas, the standard theory thus predicts sluggish

innovation. Yet, while magicians have few legal rights to their intellectual property, innovation

nevertheless seems to thrive.

This mystery has been found in IP’s other negative spaces as well. In fashion, for

instance, two scholars have observed the mystery and explained it by arguing that top designers

actually want their designs to be copied so that high-fashion designers can secure the benefits of

expression—such as fashions, new words and slogans, jokes and magic tricks, and the food industry—have

flourished in the absence of protection.”).

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passé and create demand for new high-fashion designs from the top, fueling a cycle of

continuous demand. Some might seize on this explanation as disproof of the traditional economic

theory of IP, illustrating how innovation does not need intellectual property after all. Yet, this

paper discovers that the secret to the mystery is different for magicians than it is for fashionistas.

The magicians’ secret lies not in the desire for low-IP, but rather in an alternative to it. This

paper illustrates how the magic community has developed a unique set of informal norms and

sanctions for violators, which protect intellectual property in the absence of law. Hence, in the

magic community, innovation does in fact need intellectual property. But it does not necessarily

This paper proceeds in four parts. Part I offers an introduction to the world of magic and

outlines the innovation dynamics at play in the magic community. Part II then explores the

application of intellectual property law to magic, illustrating how copyright, patent, and trade

secret law afford precious little protection for magicians’ most valuable intellectual property.

Part III explains the norm-based intellectual property system that governs the magic community

in the absence of law. Finally, Part IV discusses what lessons IP scholars might draw from this

case study of the magic community, stressing the idiosyncratic nature of IP’s negative spaces and

the promising but fragile nature of norm-based alternatives to IP law.

other scholars have since discovered the powerful influence of social norms in a variety of other property-law

influence of norms on scientific researchers).

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For as long as man has lived within the constraints imposed upon him by worldly

existence, magicians have satisfied a yearning to explain those constraints, and then to break free

satisfies may be nearly as strong as that of its predecessor. Magic has its roots in the earliest

tribal societies, where it began as a supernatural practice invoked by religious leaders, mystics,

medicine men, and the like. Gradually, this supernatural magic gave way to entertainment magic,

All along, magic has struggled for respectability even as it has garnered constant

Athenian, recalled being “almost speechless” as he watched a magician display several white

hospitality, worrying, “We should never be able to catch him in his tricks, and he would steal

for much of its history, magic’s practitioners—supernatural and secular alike—have been loners,

outcasts, and miscreants.

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In time, however, magic evolved from the work of an atomistic collection of loners into

the craft of a more cohesive industry. This Part takes a brief and selective tour through the

history of magic, illustrating the innovation dynamics at work in the magic industry—how

magic’s mysteries and illusions originate and evolve over time. We will observe how magicians

benefit from sharing their ideas, but also how they are threatened by the misuse of them. We will

see how the magic industry’s “innovation ecology” is animated by the need to balance the

against which intellectual property rights can be assessed.

By the late nineteenth century, entertainment magic had come into full bloom as a

theatrical art. In these vaudeville days, which stretched into the early twentieth century,

magicians brought large crowds to theatres and music halls on multiple continents. From New

York’s colossal Hippodrome Theatre to England’s St. George’s Hall and Royal Polytechnic,

vaudeville-era magicians vied to present the next “world’s greatest illusion.” In this time before

television and the internet, traveling magicians would crisscross the globe, bringing their shows

to small towns and big cities alike. There was considerable money to be earned, fame to be

achieved, and social respect to be gained. And this heady time would become magic’s greatest

period of creativity and innovation. Although considerable advantage accrued to those magicians

who invented new ideas and performed them exclusively, this period of innovation also

coincided with the rise of institutions that enabled magicians to share their ideas with one

another. And such institutions remain in place today.

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for new tricks, make adaptations to old ones, and share anecdotes, advice, and other information

about their craft. The vaudeville era also saw the rise of magic books. The books were often

written by well-known magicians, who would share the tricks that they had invented and refined

over the course of their performing careers. Today this practice continues, and most of the books

are issued by specialty publishing houses that cater to the magic community. The heady

vaudeville days also gave rise to magic manufacturers, dealers, and retail “emporiums,” which

sold specialty apparatus and “gimmicks” to magicians for use in their performances. Today, a

“magic shop” can be found in almost every major city, and many more sell their wares through

the mail and online.

Finally, the vaudeville era spawned organizations and networks that connected magicians

with each other. In 1902, the Society of American Magicians was born, and Harry Houdini

became one of its first presidents. In 1905, London’s Magic Circle formed, and the International

Brotherhood of Magicians followed soon after. Today, these organizations support a vibrant

network of magicians who come together frequently for large conventions, exhibitions, practicesessions,

and lectures. More informal gatherings and clubs connect magicians as well. And the

organizations and gatherings vary in their exclusivity. Not just anyone can join Hollywood’s

Magic Castle club or attend Eugene Burger’s Mystery School, and only a select few get invited

artists. Here’s what it takes to snag an invite:

You must have two sponsors who have attended a 4F convention before and are willing to stick their necks

out for you. . . . First-timers are expected to perform and you must do at least one trick . . . . After you

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By way of trade journals, books, dealers, and organizations, ideas flow freely and

actively within the magic community. Often, an innovative magician will keep a new idea to

herself as part of her performing repertoire, sharing the secret with the wider community of

magicians after enjoying its exclusive use for a while. Magicians seek out the latest trick or

clever new technique to add to their acts. The better magicians try to improve the new tricks they

learn, and adapt them to fit their own performing style. Within the magic community, a certain

prestige and renown attaches to those innovative magicians who share clever new inventions

with their magic brethren. Indeed, among magicians, Jim Steinmeyer and John Gaughan tend to

garner more respect and admiration than household name David Copperfield. The former invent

and design illusions which have been performed by the latter. Many seasoned magicians take

pride in sharing their modus operandi with the next generation of magicians. Renowned

nineteenth century French magician Jean Eugene Robert-Houdin, in one of the best and most

influential magic books ever written, dedicated his work “to my future brethren in the magic

This evolutionary process of invention, sharing, and gradual refinement has improved

many tricks over ensuing decades and even centuries. Indeed, some magicians believe that

genuinely original inventions remain quite rare. Nevil Maskelyne, one of magic’s greatest—and

ironically, most innovative—old masters, claimed, “The difficulty of producing a new magical

become a regular attendee you MUST be ready to perform at every convention if you are asked within 5-6

minutes. . . . Your first time attendance does not guarantee you a place for the next year’s convention. You

are on probation the first year and if you receive an invitation for the next year it means you were accepted by

your peers for future 4Fs.

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2006).

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certainly an overstatement, but it did capture a certain truth. Magicians have been performing the

same sorts of effects—causing things to float, appear, vanish, transport, or transmute—for

generations. And their methods have often relied on the same basic principles of visual, physical,

and psychological artifice. Yet, within this broad frame, magic has seen a considerable amount

of innovation. Much like innovation in scientific research, innovation in magic is often

less detectable, or a an old method will be improved by a psychological subtlety in a new