by

Jacob Loshin has an interesting draft paper on intellectual property among magicians. Stage magic is a form of technology, relying on both apparatus and technique to mislead the audience about what is really happening. As in any other technical field, innovations are valuable, and practitioners look for ways to cash in on their inventions. They do this, according to Loshin, without much use of intellectual property law.

This makes magic, like cuisine and clothing design, a thriving field that operates despite a lack of strong legal protection for innovation. Recently legal scholars have started looking harder at such fields, hoping to find mechanisms that can support innovation without the cost and complexity of conventional intellectual property law, and wondering how broadly those alternative mechanisms might be applied.

What makes magic unusual is that practitioners rarely rely on intellectual property law even though magic tricks are protectable by patent and as trade secrets. Patent protection should be obvious: patents cover novel mechanisms and methods, which most magic technologies are. Some classic tricks, such as the saw-a-person-in-half trick, have been patented. Trade secret protection should be obvious too: how to do a particular trick is valuable business information whose secrecy can be protected by the inventor. (The audience sees the trick done, but they don’t really see the secret of the trick.)

Yet Loshin, and apparently most magicians, think that patent and trade secret are a poor fit. There are basically three reasons for this. First, part of the value of a trick is that the audience can’t figure out how it’s done; but a patent must explain the details of the invention. Second, tricks are subject to “reverse engineering” by rival magicians who watch the trick done, repeatedly, from different parts of the audience, then do experiments to try to replicate it; and of course trade secrets are not protected against reverse engineering. Third, there’s a sort of guild mentality among magicians, holding that knowledge can be shared within the profession but must not be shared with the public. This guild mentality can’t easily be implemented within current law – a trade secret must be carefully protected, and so cannot be passed around casually within a loosely defined “community”.

The result is that the guild protects its secrets through social norms. You’re accepted into the guild by demonstrating technical prowess and following the guild’s norms over time; and you’ll be excommunicated if you violate the norms, for example by making a tell-all TV special about how popular tricks are done. (There’s an exception for casual magic tricks of the sort kids do.) The system operates informally but effectively.

As a policy guy, I have to ask whether this system is good for society as a whole. I can understand why those inside the profession would want to limit access to information – why help potential competitors? But does it really benefit society as a whole to have some unelected group deciding who gets access to certain kinds of information, and doing this outside the normal channels that (at least in principle) balance the interests of society against those of inventors? It’s not an easy question.

(To be clear, asking whether something is good or bad for society is not the same as asking whether government should regulate it. A case for regulation would require, at least, that the regulated behavior be bad for society and that there be a practically beneficial way for government to intervene.)

The best argument that magicians’ guild secrecy benefits the public is that tricks are more valuable to the public if the public doesn’t know how they are done. This is almost never the case for other technologies – knowing how your iPod works doesn’t make it less valuable to you – but it just might be true for magic, given that it exists for entertainment and you might enjoy it more if you don’t know how it’s done.

But I have my doubts that publishing information about tricks actually makes them less entertaining. Goldin’s patent on the saw-a-person-in-half trick – which explains pretty clearly how to do the trick – was issued in 1923, but the trick is still a staple today. In theory, anybody can read Goldin’s patent whenever they want; but in practice hardly anybody has read it, and we all enjoy the trick despite suspecting how it’s probably done. And do we really need to read Gaughan’s patent to know how a “levitating” magician stays up in the air? Gaughan’s cleverness is all about how to keep the audience from seeing the evidence of how it’s done.

One effect of the guild’s secrecy is that the public rarely learns who the great innovators are. We know who puts on a good show, but we rarely know who invented the tricks. The great innovators may be venerated within the profession, but they’re unknown to the public. One has to wonder whether the field would move faster, and be more innovative and entertaining, if it were more open.