Shazam — a federal court in Las Vegas has granted summary judgment in favor Teller (one of the master magicians who make up Penn & Teller) on his claim that Gerard Dogge’s YouTube video performances of The Rose and Her Shadow infringes the master illusionist’s copyrighted (and signature) act, Shadows. (Thanks to Hollywood Reporter, opinion can be read here.)
The court describes Shadows thusly:
“[A] spotlight trained on a vase containing a single rose. The light falls in such a manner that the shadow of the rose is projected onto a white screen positioned some distance behind it. Teller then enters the otherwise still scene, picks up a large knife, and proceeds to use the knife to dramatically sever the leaves and petals of the rose’s shadow on the screen slowly, one-by-one, whereupon the corresponding leaves of the real rose sitting in the vase fall to the ground, breaking from the stem at the point where Teller cut the shadow. The scene closes with Teller pricking his thumb with the knife, and holding his hand in front of the canvas. A silhouette of a trail of blood appears, trickling down the canvas just below the shadow of Teller’s hand. Teller then wipes his hand across the ‘blood’ shadow, leaving a crimson streak upon the canvas.”
Whereas The Rose and Her Shadow consists of:
“[O]pen[ing] with a spotlight trained on a glass bottle containing a single rose. The light falls in such a manner that the rose of the flower is projected onto a white screen positioned some distance behind it. Dogge then enters the otherwise still scene, picks up a large knife, and proceeds to use the knife to dramatically sever the leaves and petals of the rose’s shadow on the screen slowly, one-by-one, whereupon the corresponding leaves of the real rose sitting in the bottle fall to the ground, breaking from the stem at the point where Dogge cut the shadow. After all of the petals are severed from the rose, Dogge removes the stem from the bottle and pours the water from the bottle into a drinking glass. After the performance concludes, a caption appears, stating ‘Magic in Las Vegas style! Now available,’ followed by ‘A Double illusion for the price of One!!’ The videos also display an email address at which Dogge can be reached.”
To prove infringement, Teller had to show ownership of a valid copyright and that defendant, Dogge, copied “constituent elements of a work that are original.” Dogge argued that Teller’s registration was invalid because “(A) it is registered as a dramatic work rather than a magic routine, (B) Teller abandoned his copyright, (C) Teller ‘openly challenged others to copy’ the work, and (D) Teller did not inform the public that ‘Shadows’ is copyrighted.”
The court found Teller holds a valid registration for the act he first performed in 1976. He did not register it until 1983 but provided substantial evidence to prove he was its creator. For example, the registration provides detail describing the work and its original performance date. Further, Teller submitted illustrations with his copyright registration for the trick and its performance. Although Dogge argued that “magic tricks are not copyrightable,” the court said federal law protects dramatic works and pantomimes and “[t]he mere fact that a dramatic work or pantomime includes a magic trick, or even that a particular illusion is its central feature does not render it devoid of copyright protection.”
The court did not buy Dogge’s argument that Teller had abandoned his copyright by failing to act against other infringers. As to Dogge’s claim that a statement by Teller partner Penn Jillette — “No one knows how Shadows is done and no one will ever figure it out” — was a rights waiver, the court said those words were provocative and urged others to “unearth the secret, not perform the work.” The court rejected Dogge’s claims that Teller had failed to notify others of his copyright, saying this is not required and he had been warned in an email that he was infringing.
Access to the work
The court found that Dogge had access to the work, though he gave contradictory information as to “whether and what extent he had seen Teller perform Shadows.” His own admissions were sufficient support to rule this way, the court said, noting the YouTube videos are captioned: “I’ve seen the great Penn & Teller performing a similar trick and now I’m very happy to share my version in a different and more impossible way with you.”
Even “overlooking the non-protectible elements of these two works, Teller’s Shadows and Dogge’s The Rose and Her Shadow are nearly identical twins,” the court found.
It now will be up to a jury to determine if and what damages Teller might receive for infringement and on his unfair competition claims. There’s another judgment that Teller may be subject to. As U.S. District Court Judge James C. Mahan wrote, “Though there are organizations, taken seriously by many in the magic community, that blackball any performer who reveals a magician’s secret, Teller has opted to pursue this action…”