January 07, 2015 Articles

Magic, Pantomime, and Copyright: New Developments

Illusions involving pantomime can be protected and enforced under copyright law

By Mark G. Tratos and Bethany L. Rabe

In the courtroom, as in entertainment, what is unspoken can be the most important element in a performance. Trial evidence often involves a witness demonstrating a distance, a size, or the way another party suddenly moved; a jury may judge a witness's credibility based on his or her demeanor and body language. A prosecutor might gesture with the murder weapon during his or her closing argument at a criminal trial. Gesture can be a powerful tool in the courtroom, and the same is true in theatre and live stage performance. Gestures, movement, and positioning are important parts of dance, opera, music, theatre, and magic. Yet in terms of copyright protection, words—in the form of lyrics, monologue, or dialogue, or banter with the audience—have oftentimes taken priority over gesture or movement.

Nevertheless, at least for the last 40 years, the copyright laws have specifically afforded protection to facial expression and body movement. And while the proposition might have been stated only in reliance on Congress's inclusion of pantomime in the Copyright Act of 1976, the recent district court decision in Teller v. Dogge, No. 2:12-CV-591 JCM (GWF) (D. Nev. Mar. 20, 2014), confirms that pantomime performed on stage can be protected and enforced. Infringement of a pantomime can be punished and enjoined, and the Copyright Act's provisions for attorney fees can be applied.

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