Raymond Teller (famous as the silent half of magician tandem Penn & Teller) has scored a new success in his legal battle with Belgian magician Gerard Dogge, who once posted a YouTube video of an illusion called “The Rose & Her Shadow” and offered to reveal the secrets for $3,050. A federal judge has now issued a permanent injunction and slammed Dogge with a whopping $545,000 penalty.
In March, Teller became possibly the first magician in the United States to prevail in a copyright claim over a stolen trick. He had registered his own “Shadows” trick as a pantomime with the Copyright Office in 1983. The trick involves a magician taking a large knife and stabbing it forward as leaves and petals of a rose’s shadow on a screen get severed from the stem and fall downward.
U.S. District Judge James Mahan ruled that the “the observable elements” of both Teller’s trick and Dogge’s trick appear “identical to an ordinary observer,” even if the methods vary.
At the time, Judge Mahan granted summary judgment on the copyright claim, but wasn’t so quick to find Dogge willfully copied the Teller trick. That’s important because it affects the amount of damages awarded. The judge also denied summary judgment on Teller’s unfair competition claim.
But in the months since the ruling, Dogge has refused to participate in the trial, so Teller sought a default judgment. Last week, he got it.
Teller wanted statutory damages of $150,000 — the maximum under the Copyright Act — but the judge cited the small amount for which Dogge was willing to sell the secret of his illusion as well as a lack of evidence as to whether the Belgian magician actually sold it to anyone. Hence, the judge awarded $15,000 in statutory damages.
However, Dogge got smacked when it came to Teller’s attorney fees. The plaintiff, represented by a team at Greenberg Traurig, went to great lengths to serve notice on Dogge, including hiring a private investigator and figuring out a way to prove that the defendant had opened an email containing a summons. Teller wanted nearly $1 million in legal fees. Instead, he was awarded about half that, but it’s still quite an astounding amount.
Further, the judge has now issued an injunction that prohibits Dogge from infringing Teller’s copyright, from trading on Teller’s goodwill and reputation, and from using any word, term, name, symbol or device that would cause consumers to be confused about an association with Teller or Penn & Teller.
Teller doesn’t get everything he wanted. The judge won’t stop Dogge from selling a prop used in the magic trick. According to the judge, “That purchasers of defendant’s prop might perform plaintiff’s illusion in an infringing manner, requiring plaintiff to bring future enforcement actions against additional defendants is not a concern for this court.”