Pulling IP norms out of a hat

The methods or “secrets” of magicians are of paramount value in the trade. We conjurers work in a wonderfully creative community, awash in a steady stream of new sleights, props, tricks, books, and videos. Yet because our numbers are small, the protections of intellectual property law are often non-existent or too expensive to enforce. How do we get by without it?

That’s the question addressed in a fascinating paper called “Secrets Revealed: How Magicians Protect Intellectual Property Without Law.” It’s been making the rounds on a lot of weblogs as a case study of how innovation can thrive in the absence of IP law. The author, Jacob Loshin, outlines a very good model of the magic community; if he’s not a magician, he must have done a great deal of research to understand it so well. Here’s his basic thesis:

[Neither] copyright, patent, nor trade secret law offers significant protection for magicians’ intellectual property. Many of IP law’s qualifications and limitations flow from the assumption that intangible property is non-rival, and therefore that intellectual property holders should get something less robust than a full-fledged property right. Yet, IP law’s partial property rights ill-suit the unique characteristics of magic secrets, which require more protection than intellectual property law can spare to afford. Copyright law might prevent some stealing of magic routines, but it cannot prevent stealing or exposure of magic methods; patent law can prevent stealing of magic methods, but it cannot prevent exposure of them; finally, trade secret law might prevent some stealing and exposure of “proprietary magic,” but it cannot prevent the exposure of “common magic” without chilling the salutary practice of sharing among magicians…

The lack of protection from intellectual property law, however, has not stopped magicians from innovating and thriving. Intellectual property law leaves the most damaging threat to magic — exposure — undeterred. Yet, despite a few high profile incidents, the magic community’s intellectual property has not been subject to constant exposure. In this Part, we discover how magicians manage to create and enforce intellectual property rights without the help of formal intellectual property law. In short, the magic community has developed a fairly effective informal, norm-based IP regime which limits access, establishes use and exposure norms, and enforces violations — all outside the purview of the law.

The paper fleshes this out in much greater detail, so please read the whole thing for more information.

Loshin makes a strong case for the superiority of IP norms over IP law within the magic community, but not all magicians agree with his conclusions. An editor at iTricks.com writes:

“The paper lacks any actual economic research and most of all lacks input from magic creators. Creative people are constantly pulled from magic to places where intellectual property is better recognized,” said Andrew Mayne, who has worked with David Blaine, Penn and Teller and David Copperfield… “I’ve always felt that magic should be used as a negative example of what happens when the only power rests in the people with the most money and rule of law is nonexistent. By comparison, the music industry with its system of royalties and tracking for song writers looks like a wonderful utopia filled with chocolate rivers, bubble gum trees and cotton candy orchards.”

Economic research on magic product sales would indeed be interesting, but I think the paper holds up well without it. I’m curious who these people are that Mayne claims have been drawn away from magic because of a lack of IP protection. My impression is that the most creative magicians invent because they love the art, want to improve their acts, and seek acclaim from other magicians. Copying is a problem, but not, as far as I know, one that’s significantly driving out innovators.

An ongoing and bitter dispute between two high profile gaff makers provides a telling example of how creative magicians deal with theft. The props in question are difficult and expensive to create, but once developed they can be reverse engineered. The more established of the two craftsmen has alleged that the other has copied many of his original designs. But he’s not giving up. This is what he had to say about the conflict on a magicians’ forum:

Now some good things have come out of all this. I think that the feud/competition has actually increased my business by a rather large margin. And the competition has certainly been a catalyst for me to improve my products. That is good for the consumer, and also I have developed more pride in my work over the course. However, I really have to shake my head when I see these blatant copies of nearly everything I do. Not only that, [his] prices are substantially higher than mine, and I feel that I can safely say that I am putting a lot more time into making stuff than he is. Now I am getting advice to increase my prices to match his. Some think that higher prices mean better product, at least to those that aren’t in the know.

This strikes me as the typical response of a truly creative individual for whom making money off of his ideas is just one of many motivations.

None of this is to say that magic’s IP norms work perfectly. There are many cases of theft, some businesses have been hurt, and at times magicians keep innovations to themselves rather than risk seeing them knocked off by copycats. However, it’s far from clear that IP law would work better. Mayne envies the royalties and tracking of the music industry, but I can’t imagine applying that system to magic. In addition to being ineffective, it would risk a chilling effect on performances and inhibit the sharing that brings new magicians into the fold and fertilizes new ideas and methods.

If anything, it’s much more common to hear magicians complain about the tremendous glut of new products on the market rather than of a dearth of innovation. Despite the inevitable frustrations of being ripped off, the market is doing well.

One last observation: Though Loshin’s paper presents a thorough analysis of IP laws and norms among magicians, there is one new approach that, while relatively untried, is worth noting. A high profile magic creator and retailer recently introduced an innovative, very expensive (nearly $2000) prop system. The complexity of the craftsmanship renders it difficult to copy. However, to further protect the idea he is leasing, rather than selling, the system. Some details of the lease:

1. The system is leased without term and subject to a confidentiality agreement.

2. It can be sold and assigned only to another magician under certain conditions and subject to approval of the lessor. The price can be whatever the seller likes, but the new licensee must sign and notarize an assignment and release agreement. The original licensee will still be bound by the confidentiality agreement.

3. The license is similar to a software license. It grants rights to use the training materials and hardware but it is not to be shared.

I don’t know how effective this approach has been. Even if it is effective, my guess is it will only be affordable for very high-end products. In any case, it’s an interesting attempt at bringing legal IP protection into the magic community.

Update 9/17: Follow the debate at Techdirt.