The NYT runs a story on “Dueling Magicians”, describing Ricky Jay’s claims that Eric Walton has borrowed a few too many tricks. Walton’s reply: “This material has been out there…. The best magicians can do is take existing routines and sort of put our own spin on them.”

Interestingly, the subject of copyright never comes up — and that’s probably appropriate. While a magician’s patter while performing may be protectable expression, the tricks themselves are likely unprotectable ideas, methods, and processes. Of course that still leaves “selection and arrangement,” and it’s possible one act could mimic another so closely that it appropriated those expressive elements.

If it didn’t violate copyright, Walton’s act does seem to have tweaked some magicians’ ethical sense. Says Teller, of Penn and Teller:

“If an act hasn’t been prominently performed for a long time, and someone takes the trouble to bring it back from absolute death and put it into his act with fine touches, and which at least hasn’t been seen by a current generation,” he said, “the gentlemanly thing to do is say, ‘That’s his for now.’ ”

That said, he added, “magicians are not unique in their absence of creativity.”

I do hope he wasn’t referring to lawyers with that last jab.

On October 3, I’ll be heading out to the USC Center on Public Diplomacy to take part in their Technology and Public Diplomacy Speaker Series with a a talk on copyright as a regulation of technology and creative expression. If you’re in the Los Angeles area, come hear what Chilling Effects and MythTV have in common.

I’ve learned that’s also been declared a Day Against DRM. I’ll see how many DRM’d products I have to avoid on my way there.