Magicians can’t rely on the traditional IP regimes to keep competitors from copying their effects, or to keep nosy reporters from spilling their secrets. Trade secret doesn’t work when you do the trick publicly, in front of an audience of thousands. Copyright doesn’t protect the idea at the heart of the trick, only the patter surrounding it. And patent, with its annoying disclosure requirement, is a profound misift.
Nonetheless, Loshin argues, magicians have a set of trade norms that strongly discourage wholesale exposure and effectively prevent plagiarism. First, magicians distract the public from the good stuff with a lot of tawdry and not very profound “secrets”—the kind of gimmicks sold to the public in magic stores. Second, they enforce against each other a code of not telling the public how the trick is done. And third, they adhere to a set of attribution and use norms that give a trick’s originator credit and secure to him a moderate (but not complete) degree of exclusivity.
It’s a clever argument that cites the right sources. He’s explicitly following up on an invitation from Raustiala and Sprigman’s paper on the fashion industry, which also can’t rely on IP protection. They argued that it uses instead a strategy of induced obsolescence (a.k.a. faddishness). From there, they called for scholars to examine “negative” IP spaces—places where industries operate outside of IP protections. Loshin has done exactly that for the world of magic.
The problem I have—and this is a qualification, not a complaint—is that his theory doesn’t quite deal with magicians like, say, Penn and Teller. I once saw them do the old cups and balls with glass cups. Have they broken rules (1), (2), and (3) of Loshin’s rules for dealing with the lay public: “Never expose a secret to a non-magician.”? Penn and Teller remain in good standing with other magicians, so it would appear not. Loshin might argue that what they have given away is tawdry “popular magic,” not the real, useful “common magic” or “proprietary magic.” But pushing that argument too hard starts to show the ambiguity of these categories; one suspects that any inconvenient facts can be explained away with the right recategorization.
The real issue here is that Loshin doesn’t ever quite engage with the truly fundamental question: What is the value of a magic trick? The public both wants to be fooled and wants to know how the trick is done. It’s fun to watch something utterly mysterious or something everyday but skillful, but the most enjoyable magical experiences are those that are just outside one’s comprehension. Loshin never really engages with this anitnomy, and the result is that the paper is oddly vague when it describes how magicians and audiences derive value from the tricks that he considers to be the trade’s principal form of unprotected IP. Without clarity on how the IP fits into the business model and the aesthetic model it’s hard to be certain that the trade norms theory really explains how the profession works, or is just another layer of publicity used by magicians to keep the public interested.
There’s a common theme here linking Loshin’s discussion of magic with Raustiala and Sprigman’s discussion of fashion. As I noted when discussing their paper, it’s not at all clear that the fashion industry’s rapid cycles of obsolescence are good for anyone besides the fashion industry. Fashion is a positional good, tied up with all kinds of complicated status games. That is to say, fashion’s value doesn’t derive solely from its utilitarian or aesthetic properties. Instead, a lot of its value consists in what economists would call a “signal”; it allows you to say that you’re one of the cool kids, or one of the riffraff, or someone who rejects that division entirely. The fashion industry, in short, simply doesn’t fit our archetypal abstract model of how an IP industry works, and it can’t, whether or not we apply legal IP protections to its products.
Magic is similar. Secrecy is a second-order virtue in a conventional IP industry; it’s something that enables you to exploit the information by selling it profitably or by withholding it from your competitors. The value itself derives from the information. But in the magical world, some of the value derives from the secrecy; people are more interested in seeing an effect worked if they don’t know how the magician manages to work it. Once again, the industry simply can’t be mapped onto the conventional model of an innovator who creates an information good and sells it. Whether or not magicians have de jure IP rights or de facto trade norms that resemble IP, the core of their industry cannot adhere to the standard model.
Fashion and magic are, in short, weird industries. There’s a lot of value in studying negative IP spaces. But one needs to be cautious in trying to generalize from them, because most of what one learns from studying examples such as these are fascinating specifics of the industries, not universal truths about IP.