It is not a controversial topic for IP academics and practitioners to put the art of magic under IP protection. However, it becomes the focus of debate on how to protect or what measures to be adopted. China’s Copyright Law has provided protection for magical works under acrobatic works, but there are still many voices of dissent. The real issue is, faced with the challenges of trick revealing, whether magical works can be protected as other types of works in the framework of Copyright Law. Or in a broader sense, is there any IP right that is more appropriate if magical works do not qualify for copyright protection? Let’s stretch our minds a little bit more: do we have more reasonable protection methods if the current IP protection approaches cannot fully meet the requirements of safeguarding the intellectual achievements of magical arts? These questions form the topics of this article, and the author will try to find the answers in the following parts.

I. Magical art as subject matters of IP protection

In ancient China, magical was called “illusion,” also known as the “cover-up,” “legerdemain” or “trick,” which has a history of more than two thousand years. The modern concept of “magic” is borrowed from foreign language, referring to the tricks to produce special phantom, i.e. a comprehensive art that uses fast and agile skills or special devices to cover up the real action, so that the audience can feel the sudden appearance and disappearance of an object or unexpected changes. In general, a specific magical work consists of three parts: 1. performance of the magician, including drama plot or dance, story telling or introduction, open gestures, interaction with collaborators, magic props or audience, etc.; 2. surroundings of the magic, including lighting effects, background music, stage decoration, performer modeling, magic props, etc.; 3. creativity of the magician, including the magician’s acts invisible to the audience, use of hidden magic props and magical apparatus. These three parts are often indispensable for the magical works. Audience can usually see the contents of the first two parts, but creativity is the soul of magical works while performance and surroundings are complementing and supplementing elements.

With the development of science and technology, the art of magic is now not confined in the form of live performance. It has become the common visitor of TV shows and can be reproduced by audio and video products. Now, it can also be found on Internet and transmitted in the highest intensity ever.

II. Current modes of IP protecting of magical works

1. Copyright Protection

Currently, magical works are generally protected under the Copyright Law. This is because of the revision of Copyright Law in 2001, which for the first time listed “acrobatic works” as protected subject matters. In the Implementating Regulations of the Copyright Law, the definition of acrobatic works is provided as acrobatic, magical and circus works, which are, or can be, expressed in body movements and artistry. However in practice, there are difficulties in protecting the magical works with copyright.

First of all, works protected by the Copyright Law must be external expressions that can be objectively perceived by others, rather than abstract ideas. Therefore, the core of magical works - the magician’s creativity is difficult to be protected. Ideas have certain forms of expression, and magician’s creativity can be expressed by means of actions or use of hidden magic props and apparatus, which are difficult to be protected by Copyright Law. The Copyright Law does not protect any method of operation, technical solutions or practical functions. For example, the rapid and coherent movements used by a magician when performing with cards or small balls are essential to the performance. However, magical tricks are functional skills, which cannot be protected under the Copyright Law.

Secondly, magicians’ performance and surroundings may not be eligible to protection under the Copyright Law. Works from the perspective of Copyright Law should show their originality. Magical art has been developing for thousands of years, and most of the performances employ fixed routines, props and even costumes or background surroundings and it is difficult to prove that the routines, props, costumes and background surroundings do not come from the public domain, but from their own creation. In addition, the Copyright Law requires that the expression must be aesthetically pleasing, and a lot of magical works cannot meet this requirement either. It is not to say that magic performance does not possess beauty. Take body posture for example, it is easy to “mix” posture with ideas or artistic concepts, and makes it hard to tell the boundaries between expression and idea. Therefore, the originality cannot be identified, which may fail to obtain protection from the Copyright Law.

The eligibility of copyrightable subject matter for magical works is somewhat uniquely Chinese as few countries offer such protection, at least for now. Many scholars do not even believe that it is necessary to cover magic as protected works. Some scholars believe that the only similarity between magic and works of art is that both of them are aesthetically pleasing. Take background music or dance for example. These performances with originality can be protected as musical dance or drama works under the Copyright Law. During the Copyright Law revision process, there were some scholastic suggestions that acrobatic works of art be removed from statutory protection, as they were originally included merely because of the legislative proposals that “China’s acrobatics enjoy a high reputation in the world; acrobatic performances are original, and therefore should be protected under copyright.”

The above views do not mean the art of magic cannot be protected under the Copyright Law. First of all, China’s current Copyright Law will still protect magical works as a species of the acrobatic works. Though it rejected the claims of magician Yigal Messika, Beijing First Intermediate People’s Court in the first instance trial of the Tarantula magic copyright case recognized that the tarantula magic might constitute copyrightable works, which in fact supported magic as copyrighted works in litigation practice. Secondly, even if the magical art is removed from the category of works in the new round of copyright law revision, certain contents of magical performance and forms of expressions can still be treated as music, dance or drama works and be protected. Finally, we should learn from foreign experiences and seek neighboring rights protection as legitimacy foundation. For example, the Rome Convention has expanded the definition of performers and protects magician as performer. French copyright law provides that performers can be those who perform literary and artistic works in various ways or perform with juggler, circus and puppet.

Nevertheless, protection of magical works faces great difficulties if relying solely on the Copyright Law. The key issue is that the Copyright Law does not protect the core of the art of magic - the magician’s creativity. Therefore, copyright protection cannot serve as the major way of protecting magic art.

2. Patent protection

Different from copyright, patent protects technical solutions, i.e., ideas that can be transformed to applicable technologies. This seems to provide a possible model to protect the magician’s creativity. In practice, many magicians also use the patent system to protect their ideas. According to media report, Mr. Wu Suxiong, a magician from Guangzhou, has been authorized with more than 20 patents for its magic supplies. He also has over 10 invention patent applications pending. In the online shops at Taobao, there are a variety of magic props claiming to be patented products.

Indeed, a good idea, regardless of product or method, can be patenteligible. When it meets the requirements of “novel, creative and of practical use” by the Patent Law, it is not difficult for it to obtain authorization. Once it is granted by the Patent Office, patentees will enjoy much stronger exclusive rights than copyright holder. However, patent system has a congenital and fatal point when it comes to the art of magic, that is, the skills must be disclosed to the public in exchange for the patent. Copyright exists automatically upon the creation of the works and the right holder does not have to publish it. In contrast, China’s Patent Law follows the rule of “early disclosure and postponed examination.” So the technical solution must be disclosed to the public when applying for patent. However, it is entirely possible that the application could be rejected if the application item does not meet the requirements on technical novelty, inventiveness or usefulness. As a result, the applicant cannot apply again for the same patented technology solution, and it is also impossible to apply for trade secret protection. However, this sort of demanding disclosure requirements adapts to the almost absolute monopoly of patent rights. Once the patent is granted, no one else can use this technical solution during the patent validity period. The system is designed to give the right holder the monopoly right for the technology in a certain period. Also, the disclosed technical solutions enable others to get inspiration and reference information, thereby promoting the advancement of technology.

Pubic disclosure means death to the art of magic and no magician would expose the core of creativity. In addition, even if the magic is patented, the patent can only prevent other magicians from imitating, but cannot prevent the trick being exposed. In 1933, the Camel Cigarettes launched a series of commercials, but these at the same time also revealed magic secrets. In 8 months, Camel Cigarettes exposed 39 classic magic tricks on 1200 kinds of American newspapers, which angered magicians. One of the magic performances exposed was “sawing living creature,” but the magic was patented by the American magician Horace Goldin, who brought claims for unfair competition in court immediately, but the court quickly dismissed his claims, holding that what was disclosed under patent is for anyone to use, and therefore no unfair competition could result if the cigarette commercial cited what is described in the patent specification. This case affected the magicians’ superstitious belief in the U.S. patent system. Subsequently, a number of magicians began to make the contents of the patent application as vague as possible, which however, did not work either, as it would not satisfy enablement requirement. Thus in the U.S., the link of patent protection and magic creativity gradually broke out. Although American magicians still apply for patents for magic props, few are intended for creative ideas, which is caused by the contradictions between the publication under patent system and secret culture inherently of magic art.

3. Protection under trade secret law

Relative to the controversial copyright protection and the withering away of patent protection, enthusiasm in the theoretical circle is on the rising for trade secret protection of creative magical works. However, is trade secret protection a suitable model for magic?

Trade secret, as provided under Article 10 of the Anti-unfair Competition Law, refers to technical or business information which is not disclosed to the public, economically beneficial to its owner, with practical utility and under measures of maintaining its secrecy. Further provided under this article for unfair practices of competition is that it shall be deemed as infringement of trade secret to obtain proprietary business information by stealing, luring, coercion or other unfair means; to disclose, use or authorize others to use such proprietary information by the aforementioned means; to disclose, use or authorize others to use such proprietary information in breach of an agreement or under confidentiality; or to obtain, use or disclose another’s proprietary information by a third party who knows or ought to know the unlawful breach aforementioned.

When looking into the operation mode of magic, we will find that trade secret protection can hardly be an effective way. Firstly, the first element for trade secret is “not known to the public,” which is the so-called secrecy. The term “trade secret” in China appear in China’s Anti-unfair Competition Law, which regulates the competitive behaviors between competitors. Thus, the “public” for trade secret does not refer to the indefinite members of the public, but the competitors in the same field where said information is applied. However, the inheritance of magic art or the maturity of magical works comes from the trial performance by the magician within the trade circle. Other magicians give comments and the original performer makes revision and improvement. This kind of disclosure to the competitors makes it inclusive as to whether it constitutes trade secret, which has to be decided case-by-case. Secondly, it seems difficult to infringe others’ trade secrets and constitute unfair competition regarding the behavioral characteristics of magic. Unfair competition acts should be based on obtaining business secrets from the owners of rights by stealing, luring, intimidation or any other unfair mean. Judging from the current situation of secret disclosure, the revealers are peer magicians or the general public. These acts are conducted without theft, lure, coercion or any other unfair means, but are achieved by the so-called reverse engineering, i.e., the related parties find out the trade secrets based on their own research. The peer magician can easily know about the creative ideas from a public magic performance, and the accuracy is much higher than the general public. The destructive power of the magician is also much larger than the general public, but it is difficult to prevent such acts by trade secret protection.

Copyright, patent and trade secret, none of them can effectively protect the art of magic, especially the magician’s creative ideas. In face of magic revealing acts, will the magic circle allow the short-sighted secretrevealing programs destroy or erode the foundation of the entire magic industry? How can we solve the problem with the current IP protection tools?

II. Possible protection methods for magic

The problem faced by Chinese magic community is not a new one in the world. The development of China’s magic industry is currently in a chaotic stage. Both our practices and experience of developed countries prove that it is difficult for IP protection alone to stop revealing behaviors or protecting the magician’s creativity. The most effective way to protect magic art is moral constraints and pressures.

We can learn from the advanced experiences of developed Western countries in exerting the role of industry associations. We can take the initiative to lead the industrial development and promote the shift from IP protection phase to industry self-regulation phase. The current priorities should be: we should first comprehend the current situation and form a hierarchical management system; on basis of sufficient study, identify the scope of magical works that have been fully disclosed and then intensify protection over unpublished works; educate magicians with the knowledge of different types of IP laws so that they can have the ability to choose protection mode.

The second is to establish a magician access system and build common values of the industry. In London Magic Circle Club, a public hearing was conducted before Prince Charles could receive membership. Similarly, an access system should be established for magic practitioners, which can regulate magician recommendation, commission confirmation, hearings, ethics sworn etc. to build unified cultural values.

Thirdly, ethical rules should be established for magic breaching acts. Magicians can learn the rules of morality by International Magicians Brotherhood Union (all members should promise to act against any malicious exposure to the arts of magic) or the three famous principles established by the Howard Thurston (never telling the secrets of magic, never performing the same magic for the same audience, and never explaining contents beforehand).

It is necessary for the code of ethics to become the basic criteria for magicians.

The fourth point is that one should be punished for the breach of ethical rules. If there is no punishment, the rules would become worthless. Like Val Valentino who exposed magic secrets in the Masked Magician at FOX show, violators of the rules must get the actual punishment. Magic association should criticize based on the specific circumstances of violations, make warning or even withdraw qualification. No magician can make any performance, lecture or participate in any activity if he is still in the warning period. Magicians should also respect the ethical rules. They should avoid cooperation with those who are found with false conduct.

(Translated by Li Guanqun)