Gaff Cards, Copyright, Copy Cats, Plagiarism and more

[Magic_Orthodoxy]

I don't know if you've seen but Penguin has a new gaff deck for sale

product page: http://www.penguinmagic.com/p/4121

Watching the trailer I see several gaff cards that have appeared in a few "E" decks but they also show the "entwined hearts" card

http://coterie1902.com/products/tricks/entwined-hearts

by Zennith Kok

Sure we could say that it would have been good form for 1st Magic Studio to ask Zennith if they could reprint his design, but do they have to? Can you call "dibs" on a design of a gaff card? If that were the case then we can't print double backers and double facers right? Because someone else "designed it"

How many different ways are there to design a card?

I know countless effects where the pips in opposite corners are different so that you can "roll" the card and create a new face for the spectator to see, does that mean "that gaff card" is now copywritten and I have to go back and ask Daryl, Copperfield, Mason and whomever else has marketed that effect for permission to print it again?

Or is art art? From the Teller Lawsuit the Hollywood reporter said,

Technically speaking, magic tricks aren't copyrightable. In a ruling by a Nevada federal court on Thursday, U.S. District Judge James Mahan states that explicitly. What is protectable under copyright law is pantomimes, the art of conveying emotions, actions and feelings by gestures.

But are gaff cards "magic tricks" or are they art? Design? Creativity?

I assume because USPCC has a legal department and because they are usually on top of this kind of thing, they already asked this question and felt comfortable printing them - or their legal team missed it.

Questions?

Comments?

[Nurul]

First off all, apologies for being the grammar police, but it's Kok not Cok.
Second of all, I was the one that brought it to Zenneth's attention that there was a gaff exactly like entwined hearts in this gaff deck.

Zenneth created this gaff, solely for one product, "entwined hearts", for that reason, I think this is a copyright gaff.

When Daniel Garcia and Wayne Houchin brought out the Ultragaff, they had gaff cards that you won't find anywhere else. You may find similar ones, but never the same ones.

I think, they thought, that entwined hearts wasn't a commercialised effect, and that it was ok for them to create this gaff.
Personally, I think it shouldn't be allowed.

Just my opinion.

[Zenneth]

Entwined Hearts is a commercialized item and I have been selling them for quite a few years already.
If they don't need to ask for permission to print this card, then can I print a deck that's completely identical to Bicycle Gaff Effect Deck and market it?

[Magic_Orthodoxy]

When Daniel Garcia and Wayne Houchin brought out the Ultragaff, they had gaff cards that you won't find anywhere else. You may find similar ones, but never the same ones.

The 4 headed queen and the empty queen cards from the commercial are in Ultragaff - absolutely identical

The mirror 5 of spades card is in the Army of 52 gaff deck from Ellusionist- absolutely identical

According to USPCC their back design is copywritten and needs permission to be duplicated, but the front sides are public domain. Could it be argued that gaff cards are "magic tricks" and thus not copywrite, or are they art? I'm not a lawyer, I am not "picking a side."

I have been developing my own gaff deck for months now and so I am curious to know the answer.  I only ask the question.

[jwats01]

This is an interesting discussion. I am not a lawyer, and wish a copyright lawyer would weigh in here. I found this on Wikipedia:

Copyright law recognizes the right of an author based on whether the work actually is an original creation, rather than based on whether it is unique; two authors may own copyright on two substantially identical works, if it is determined that the duplication was coincidental, and neither was copied from the other.

In all countries where the Berne Convention standards apply, copyright is automatic, and need not be obtained through official registration with any government office. Once an idea has been reduced to tangible form, for example by securing it in a fixed medium (such as a drawing, sheet music, photograph, a videotape, or a computer file), the copyright holder is entitled to enforce his or her exclusive rights.[10] However, while registration isn't needed to exercise copyright, in jurisdictions where the laws provide for registration, it serves as prima facie evidence of a valid copyright and enables the copyright holder to seek statutory damages and attorney's fees. (In the USA, registering after an infringement only enables one to receive actual damages and lost profits.)

[Magic_Orthodoxy]

from the http://www.copyright.gov/ website;

How do I protect my idea?

Copyright does not protect ideas, concepts, systems, or methods of doing something. You may express your ideas in writing or drawings and claim copyright in your description, but be aware that copyright will not protect the idea itself as revealed in your written or artistic work.

Does my work have to be published to be protected?

Publication is not necessary for copyright protection.

[Marcus]

I guess it'd be up to the court to decide whether or not the cards reach the level of art. My own opinions aside, I doubt anyone could get a court to decide that moving two pips closer to each other on otherwise public domain art work would count as art.

And if they did, I guess it would hereon forth be known as the...

 

... court card.

*The Who starts playing*

[Don Boyer]

Entwined Hearts is a commercialized item and I have been selling them for quite a few years already.
If they don't need to ask for permission to print this card, then can I print a deck that's completely identical to Bicycle Gaff Effect Deck and market it?

Only to the point where you're not copying their trademarks, which would include the Bicycle card back, the Ace of Spades and the Jokers.  The rest is fair game - no different that if USPC (or any other company) tried to patent the fork or copyright the alphabet.  There's too much prior art in existence to lay claim to the common elements of a deck of cards.  I can take their standard faces and use them on a deck with no legal issues to settle.

When Daniel Garcia and Wayne Houchin brought out the Ultragaff, they had gaff cards that you won't find anywhere else. You may find similar ones, but never the same ones.

The 4 headed queen and the empty queen cards from the commercial are in Ultragaff - absolutely identical

The mirror 5 of spades card is in the Army of 52 gaff deck from Ellusionist- absolutely identical

According to USPCC their back design is copywritten and needs permission to be duplicated, but the front sides are public domain. Could it be argued that gaff cards are "magic tricks" and thus not copywrite, or are they art? I'm not a lawyer, I am not "picking a side."

I have been developing my own gaff deck for months now and so I am curious to know the answer.  I only ask the question.

OK, a couple of corrections to be made here...

There was no "Army of 52" gaff deck.  There was a series of gaff decks with common elements - Ghost, Black Tiger and one or two of their other early deck designs - and you could use the "Army of 52" video to teach you how to use any of these gaff decks.

USPC doesn't use copyright to defend their unique deck elements, especially since they date back to the 19th century and copyright law covers nothing made prior to 1923.  They use trademark law instead, which acts a bit differently in that as long as a trademark is continually registered and not diluted, you can own it in perpetuity.  It's why USPC stopped allowing altered card backs for their common designs and such.

As far as my non-lawyer eyes see it, you can copyright the instruction manual you use to teach magic, but you can't copyright the ideas behind the magic.  It's a reason why magicians tended to keep their secrets secret.  It's a hard concept for some to understand in the age of information everywhere.  And gaff cards would be a tough sell in terms of establishing a copyright, though if you made a set of gaffs for a deck of your own devising with a unique back design, that you can protect.  But if someone recreates your gaffs on a different back, well - it doesn't look like you'd be able to effectively copyright it, and it would be an interesting case to see if it could be registered as a trademark...

[Jeremy Hanrahan]

It also requires restraint on some of the companies releasing such gaffs. When I am approached to make a gaff I always do my research. I can't keep count of the number of projects I had to say no to based on ethics.

[Don Boyer]

It also requires restraint on some of the companies releasing such gaffs. When I am approached to make a gaff I always do my research. I can't keep count of the number of projects I had to say no to based on ethics.

He raises an excellent point.  Someone, somewhere in history may have conceived of that very gaff card prior to you, especially the more common ones like the three-and-a-half of clubs and the thirteen of diamonds.  Ethical magicians want to give proper credit where it's due, because at some point down the road, some young, future magician may be copying your work and you'd want to be acknowledged for your contribution to the art.

I'm pretty much convinced that there's a lot of really cool and interesting magic out there now that will never see the light of day, at least not while the creator(s) of said tricks still walk(s) the Earth, because the best-kept secrets are the ones only you know of and it leaves little doubt as to who created the trick if you're the only one capable of performing it, now or at any time prior.