Tuesday, February 26, 2013
Penn & Teller Lawsuit on a Magician for Stealing a Trick
The silent half of "Penn & Teller" is pursuing a Dutch entertainer who has posted an alleged copycat illusion on YouTube, but the defendant has a few tricks up his sleeve.
Teller accuses Dutch entertainer Gerard Dogge of ripping off his copyrighted magic piece called Shadows, putting it on YouTube as an illusion entitled The Rose & Her Shadow, and offering to reveal the secrets for $3,050. The litigation promised to help determine the level of protection that magicians have over their tricks, and to prevail, Teller would need to show that his trick is eligible for copyright protection and that Dogge's piece is substantially similar. To do that, he'll first need to perform the hard chore of showing that Shadows is "fixed in a tangible medium of expression from which the work can be performed," as the U.S. Copyright Office requires.
Teller has a head start.
He wrote down the details of his magic trick and registered it with the Copyright Office in 1983. He even illustrated the trick, which shows the petals of a rose being cut in the following manner...
Nevertheless, Dogge has proven to be a difficult defendant -- not because of any great arguments why he shouldn't be liable for copyright infringement and unfair competition under the Lanham Act, but rather because magicians are, well, masters of misdirection.
Earlier this month, U.S. District Judge James Mahan provided a status update and ruled on several motions. One had to do with whether the defendant was properly served papers in the case.
Soon after filing the lawsuit, Teller hired a private investigator and a law firm to locate Dogge. And how did that go?
"To date, defendant has evaded personal service and cannot be located in Belgium, Spain, or in any country in Europe," writes Mahan.
To make matters more interesting, although Dogge has artfully avoided the papers, he's not been silent. In fact, he's provided countless, colorful filings, including one where he taunts, "I will, after being served in the legal way, obey to the Court by taking responsibility, I will defend myself and prove that there was no copyright infringement."
But Dogge's legal chicanery has enjoyed some triumph.
He is currently suing Teller in Belgium for defamation, which prompted Teller to demand an anti-suit injunction. Teller wanted to enjoin Dogge from raising any claims in Belgium, but the judge won't go that far.
"It is true that defendant's defamation suit in Belgium against the plaintiff in this case has a vexatious flavor," writes Judge Mahan. "The vexatious flavor of the Belgian suit alone cannot overcome the fact that no other factor weighs in favor of an anti-suit injunction."
The lawsuits now proceed. Both the one in a Nevada federal court where Teller attempts to prove that Dogge hurt his business by uploading a (now-removed) copycat magic trick to YouTube as well as the one in Belgium where Dogge attempts to show that Teller has hurt his reputation. Hopefully, everyone will show up for trial.
Read More... http://www.hollywoodreporter.com/thr-esq/teller-learns-why-not-easy-424577