Magic tricks don’t cease to surprise and most often, they leave us befuddled with a lot of questions. But if we knew how the trick was performed, would we be as amused? Probably not. And that’s exactly why the magicians’ community thinks it is important to protect their tricks under the law. This is where intellectual property comes into play and the question is which branch of IP will protect magic tricks. In this article, I will discuss the patentability (if at all patentable), copyrightability and protection under trade secrets for magic tricks in India.

Patent

The Patents Act in India requires three conditions to be fulfilled for an invention to be patentable – it should be novel, involve an inventive step and be capable of industrial application. Unlike, United States, in India we don’t have utility model patents which are patentable solely on the grounds of being useful. In India, it is a requirement that the invention should be capable of being made or used in an industry and therefore a magic trick is not likely to qualify for patent protection in India. Infact, from the point of view of the patentee, applying for a patent will essentially mean disclosing the magic trick and getting protection only for a period of 20 years and will defeat the purpose of protecting the mark in the first place. So a patent is not really the best form of IP protection for magic tricks.

Copyright

There are many aspects to the copyrightability of magic tricks and there are a number of unanswered questions.

Dramatic Work

A magic trick may be capable of copyright protection as a dramatic work because the definition of dramatic work includes choreographic work or entertainment in dumb show (magic tricks are most likely to fall into the ambit of this definition minus the music played, if any and other variables) or acting form of which is fixed in writing (a case where the show is scripted well in advance and the tricks may be put into writing by the magician).

Registration is not mandatory for copyrights and in this case, the copyright will come into existence when the trick is first performed by the magician.

Performers’ Rights

Section 2 (qq) of the Copyright Act by way of an amendment in 2012 included a conjurer in the definition of performer, thereby ensuring that a magician or conjurer is entitled to performers rights under the law. The performer has exclusive rights to reproduce of the work by any means, make a sound or visual recording, communicate to public, offer for sale etc.

If the performer consents to the work in a cinematographic work, there shall be no exclusive rights vested with the performer, however, the performer is nevertheless entitled to royalties in case of performance for commercial use.

Suit for infringement

There are two questions I’d like to raise in respect of a suit of infringement of a magic trick. Firstly, if a suit is filed, the parties will probably have to disclose the trick behind the magic to the judge and then both parties will have knowledge of each other’s tricks (if they already didn’t). It is hard to find a balance between protecting ones right and keeping the trick to oneself. A suit is likely to expose the trick to the world and does a magician really want that?

Secondly, there are a number of tricks common the magicians’ community and so will the idea-expression dichotomy come into play? The idea being the magic trick itself and the expression being the way a magician has chosen to depict that particular trick. In these cases, does one person really have the copyright to a magic trick? Given how tricky an infringement suit can get, it’s probably safe to apply for a registration, more for the reason that it will be prima facie evidence in the event of a suit.

Trade Secret

In India, there is no law for the protection of trade secrets and the best way is to put into writing and keeping them under lock and key (article on trade secrets here). Ensuring that they pass safely to the next in line is important with respect to magic tricks. So this kind of protection is probably best suited for magic tricks.

As has rightly been said, the mystery is the basic appeal of magic and understandably so, every magician wants to protect their well-crafted magic tricks!

This article has been authored by Nikita, an IP Law practitioner.