The issue of IP protection of magical works has become a hot spot of social focal point much because of the inclusion of the copyright case of Tarantula Magic into the collection of Top Ten IP Cases of 2012 by the Beijing Higher People’s Court. In fact, it has been exposed in media from time to time, especially the problems with television shows that reveal tricks of magic performances. In early years, there was a TV show in a provincial TV station called “Xiao Tian Series of Magics Disclosed,” and so did “Magic Guess.” In 2009, after his magic show on China Central Television’s Spring Festival Gala, Liu Qian brought a “magic fever” to China and “Magic Talent Show” became the new favorite of television stations. The magic show “Gold Magic” by Hunan TV was very controversial. Liu Qian was also dissatisfied with the contestants who disclosed the magic, and he expressed his views on IP issues of magical arts.

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,” “l(fā)egerdemain” 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.