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26
2 YEARS

Teller Learns Why It's Not So Easy to Sue 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.

Penn and Teller Portrait - P 2011

The hardest part of suing a magician might be keeping the defendant from disappearing.

When we first wrote nearly a year ago about the lawsuit brought by Raymond Teller (famous as the silent half of "Penn & Teller"), we might have assumed otherwise.

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...

Teller

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.

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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.

Teller might not have been able to find Dogge, but the famous magician managed to e-mail the court papers and prove that Dogge opened them. It's enough for the judge, who notes "the only reason defendant has not been personally served ... is because defendant surreptitiously evaded substantial attempts of service by plaintiff."

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."

Dogge has other tricks up his sleeve.

Not all of them are successful. For instance, he attempted to introduce sealed evidence against Teller that contained "pornographic images," but the judge found it to be largely irrelevant. He also asked for a jury comprised of magicians, which the judge found "nonsensical."

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.

E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner