You can patent an idea in the United States, and many European countries as well.
There are laws in place to protect what is called intellectual property, which is different from creative commons.
However, patented magic tricks come with a lot of baggage. Magic is an act, and since it’s not a physical product that needs protection, it’s very difficult to patent a trick in the US.
We’re going to learn about the ins and outs, the difficulties, why it might be better not to patent your trick, and discuss the famous case of David Copperfield suing (and winning) someone who stole his act.
How to Patent a Magic Trick in the United States
You can’t. You simply cannot patent a magic trick, but you can patent a prop that you invented to help you carry that trick out.
It’s basically the same thing, because then you open yourself up to other people being able to recreate and use your prop.
If you wanted to file a patent, you would simply have to file your blueprints and plans with the United States patent like you would with anything else.
You would go through the same process that, say, the SlapChop went through when it was being patented.
You would search the Trademark Office database to see if your patent already exists somewhere (we’re not always as unique in our ideas as we think, sorry to say).
After that, you hire a patent lawyer and get a contract going before you even disclose the patent at all.
That lawyer would then help you submit a formal application for your patent.
Once the formal application is checked over and submitted, you have a patent examiner assigned to your contract.
Basically, they have to examine the object in question and help the process go through before your patent is approved.
But I will tell you this: with the explosion of manufacturing methods, the internet, and ideas from over 7 billion people, it’s a very backlogged system.
Some patents take over a decade to be approved once they’re submitted.
However, if your patent is pending and you have a notice from the patent office of this, with a date on it and signature, get it notarized.
It serves as a timestamp of you having an idea first, so if someone tries to copy you, you can pull up your patent pending in court to defend yourself.
Do Famous Illusionists Patent Their Tricks?
No, they most certainly don’t.
They can patent inventions, but that would, in turn, give away a ton of their trade secrets and render the magician or illusionist useless.
If you made a new type of microphone, you would want to patent it so that other people could not reproduce it without either facing the law, or paying you a fee to use your patent, should you allow it.
It’s there so that you can be protected and make money if you choose.
But you’re not making the newest microphone. You’re making a device to use for illusion shows.
If you patent it, or even if it’s pending, that means anyone can search the patent database just as you have, and find your blueprints, your sketches, and make it themselves. You’d be left powerless.
It’s better to leave your work unpatented, and I have an example of that.
Some years ago, there was an issue with a newspaper that was run by R.J. Reynolds, who ran a story on a magic trick by the legendary Horace Goldin.
Horace had the original sawing a lady in half trick, but he made a mistake. He thought that everyone was out to get him, so he patented his prop. That was a big mistake.
The newspaper by Reynolds ran an expose on the trick, and Horace took it to court right away.
The problem is, his case was thrown out, with something to the effect of him making it a patent, therefore public knowledge, and being foolish with his invention.
How do You Protect a Trade Secret?
Don’t make it obvious to the public. Don’t trust anybody with it.
The only thing you should do is make sure that it’s as inconspicuous as possible, and be annal about the presence of spectators on-stage or behind stage, as well as the angling of cameras.
The only way you can really protect a project like this is to make the blueprints, deposit it into a safe, and be the only person with access to that safe.
You can leave it to a beneficiary when you die, so that someone in your family can carry on the legacy.
What is Trade Secret Law for Magicians?
It’s basically a law that isn’t a law—it’s called trade secret law to misdirect (shocking that a magician would do that, huh?) people away from the desire to steal tricks.
Magic is what’s referred to as a common-pool resource, meaning you can’t just go “That’s mine” and have it stick.
As a matter of fact, the only people who can really claim intellectual property are famous magicians like Angel and Copperfield. At least, without hardcore evidence.
Why is that?
Because they’ve done it on television shows and specials, which are owned by companies, which have assets to protect.
It’s because millions of people saw this person record a trick, and it’s dated for months before anyone steals that trick and tries to make money off of it.
In short, even then, they haven’t really patented magic tricks. They’ve just made them publicly visible, protected, and if they’re clever enough, nobody else will figure it out.
Trade secret law is basically this: you don’t have to patent a magic trick or a prop, because if you do, it becomes common knowledge, thus rendering it useless and ineffective.
Nobody is lining up to see disappearing coin tricks and saying, “This person just redefined magic.”
But because magic tricks and props are really hard to pull off and create, there’s so much theft in this community.
If you were to steal a trick, it can only be classified as actually stealing it if you went backstage when you are not allowed, inspected the props, someone saw you doing it, and then you attempt the trick later and someone catches you.
If you were part of the production crew on a magic special, or the assistant to a magician, or you signed NDAs because you were working with the magician, trade secret law states that you cannot recreate those tricks or you are stealing.
After that, the law and how to execute it gets a little bit fuzzy.
Criss Angel actually attempted this. Not to sully his name, but there are reports of a 2009 incident where he was behind the stage at a Rouven show, and he was not allowed to be there. He wasn’t invited.
He inspected a prop of Rouven’s that was used in an escape trick that involved six swords.
Well, then he pulled a fast one. It looked just like a trick in Clive Barker’s 1995 film Lord of Illusions, so he went to Barker and got exclusive permission to use that prop in one of his shows.
Got it in writing, legally binding, the whole shebang. Then he made a prop that looked similar, but operated just like Rouven’s prop.
In short, the prop didn’t work right and Criss Angel ended up looking like a jerk live on stage.
On his site, something to the effect of “Criss Angel is the only person allowed to use this trick” popped up, stating that anyone who wanted to attempt it would have to get permission from Clive Barker.
To date, Criss Angel hasn’t tried that trick again.
If you’re affiliated with a magician and steal their work, you can face the law. If you’re in the audience and you figure it out on your own, just like with the Reynolds case, then it’s basically free to use.
Protect Your Creative Property
In the long run, if you end up being the next Criss Angel or David Copperfield, it might be better not to patent your tricks.
Instead, patent your acts in whatever ways you can.
You cannot prevent everyone in the world from stealing your ideas.
There are uncreative people out there who want a fast-and-hard way to success, and while this isn’t helping them get it, they don’t care.
If there’s no patent of your trick, then nobody can figure it out. If it’s intricate enough that others can’t attempt it, you’re looking good.
Immortalizing yourself doing the trick first on the internet is going to be your best case at defending it as well.