The Magician Sued By Teller For Copyright Infringement Has Tried A Disappearing Act In Response

from the also,-craziness dept

Tue, Mar 5th 2013 4:10pm — Mike Masnick

Nearly a year ago, we wrote about the disappointing news that Raymond Teller, better known as "Teller" from Penn & Teller (also as the silent guy in that act), was suing another magician for copyright infringement for copying one of his tricks. This was disappointing on multiple levels. As we had discussed years ago, magicians are an example of a market that has been hugely innovative over the years, mostly without copyright being used at all. In fact, it's not entirely clear that a magic trick can be covered by copyright -- even if Teller successfully "registered" this particular trick. Copyright registration is basically a rubber stamping procedure, rather than any serious review.

The lawsuit has continued, but not without some challenges -- one of the large ones being that the magician being sued, Gerard Dogge (aka Gerard Bakardy), has tried to pull a disappearing act to avoid getting served. And, it appears, he's been somewhat successful.

Defendant’s citizenship and current whereabouts are unknown, and have not been known since the commencement of the action. On April 30, 2012, plaintiff hired a private investigator to locate defendant in Belgium and serve defendant with the summons and complaint. Additionally, plaintiff retained a top Belgian law firm to properly effectuate service upon defendant. To date, defendant has evaded personal service and cannot be located in Belgium, Spain, or in any other country in Europe.

Nice trick. Except... it didn't work. The court notes that Dogge is clearly "intimately knowledgeable of the details of this lawsuit," in part because he sued Teller in Belgium for defamation over the lawsuit. Oh yeah, even while trying to avoid getting served, Dogge has filed his own filings in the existing lawsuit, which is generally not a good way to suggest you don't know that the lawsuit is happening. Also not helping Dogge's case is that he appears to be... a bit wacky, based on his filings. For example, filed an undescribed bit of porn -- and then asked for it to be filed under seal. The court rejects this request, and also tells him: "Defendant shall not file any pornographic material with this court as a sealed exhibit or otherwise."

Oh, and then he asked for a jury made up entirely of magicians.

In general, it sounds like Dogge's "legal" arguments are somewhat close to nonsensical as well:

For example, defendant states “[m]agicians are like clowns, they only serve to entertain. Obviously stealing from each other is out of the question, and this has not happened here.”

The court does reject one of Teller's motions, seeking to effectively bar the Belgian case from moving forward, even while saying that the lawsuit "has a vexatious flavor," but that's not enough to block it.

In the end, it's unfortunate that Dogge appears not to be handling the case particularly adeptly. There are some important copyright principles at stake here, and he seems to be treating it like a joke. I can understand why someone would choose not to respect copyright laws like that, but it means that a good chance to actually explore the legal issues is likely to be wasted or (worse) create a bad legal precedent.

Teller v Dogge Order (PDF)Teller v Dogge Order (Text)

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Filed Under: copyright, gerard bakardy, gerard dogge, magic, magic copyright, penn & teller, raymond teller, shadow, teller, trick

33 Comments

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Mason Wheeler (profile), 5 Mar 2013 @ 4:15pm

What's wrong with that jury idea?
In all seriousness, I don't see why they shouldn't get a jury made up of magicians. You're supposed to have a jury of your peers, and if the argument is between two magicians, involving a dispute over a magic trick, then who better to understand the ins and outs of the case than people familiar with the concepts involved?
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Anonymous Coward, 5 Mar 2013 @ 4:25pm

Re: What's wrong with that jury idea?
You know that6 a lawsuit would happen so fast, regardless of whoever lost. In fact, you could say that it would magically appear.
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Gwiz (profile), 5 Mar 2013 @ 4:28pm

Re: What's wrong with that jury idea?
In all seriousness, I don't see why they shouldn't get a jury made up of magicians.

Because it's not really practical. First, it's magicians, then it's middle-aged coffee shop owners, then it's weekend civil war reenactors, and so on.
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Anonymous Coward, 5 Mar 2013 @ 4:36pm

Re: What's wrong with that jury idea?
And any 4chan user should get a jury full of only regular /b/ users for any court case related to the internet going forward.
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Anonymous Coward, 5 Mar 2013 @ 4:46pm

Defendant�s citizenship and current whereabouts are unknown, and have not been known since the commencement of the action. On April 30, 2012, plaintiff hired a private investigator to locate defendant in Belgium and serve defendant with the summons and complaint. Additionally, plaintiff retained a top Belgian law firm to properly effectuate service upon defendant. To date, defendant has evaded personal service and cannot be located in Belgium, Spain, or in any other country in Europe.

Question:
For serving papers on a defendant to a suit in a US court does not the US government not have to have jurisdiction? Is it valid to serve papers of a US court case on someone that is not subject to US law? If said individual has no assets in the US and does not appear for the trial will the default judgement be honored outside the US by a foreign court?
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kyle clements (profile), 5 Mar 2013 @ 4:52pm

Re: What's wrong with that jury idea?
As someone who once successfully got out of jury duty, anyone who is in a jury is not one of my peers.

Should I ever be on trial, I demand a jury made out of my peers - a jury of people who got out of jury duty.
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Anonymous Coward, 5 Mar 2013 @ 5:15pm

Tricks are protected by copyright ... tell that to the hoes,

Hey Rocky, watch me pull a rabbit out of my hat.
Again? That trick is copyright'd.
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Jeremy, 5 Mar 2013 @ 5:32pm

If someone could make a body disappear it would be a pair of Magicians, just saying.
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Anonymous Coward, 5 Mar 2013 @ 5:32pm

Re: What's wrong with that jury idea?
Nothing wrong with that jury idea - but prepare yourself for a court session like Turnabout Inheritance from Apollo Justice: Ace Attorney.
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out_of_the_blue, 5 Mar 2013 @ 5:52pm

Meh. Tricks by performing monkeys.
The popularity of "magicians" never ceases to amaze me because I'm not one who WANTS to be fooled: I want to see and understand reality. It's easy to fool someone. Just ask any three-card monte dealer on the sidewalk to demonstrate that YOU too can be fooled. But fantasy is big business because most people have some sort of primitive need to believe in "magic" -- and deny cold hard reality and pesky immutable laws.

So forget Teller's trick, kids. It's JUST a trick.

Let show where I think Mike is pulling a fast one; first he's shoe-horning this into his LEGAL fetish: "I can understand why someone would choose not to respect copyright laws like that, but it means that a good chance to actually explore the legal issues is likely to be wasted or (worse) create a bad legal precedent." -- But let that pass as I can regret the same about Bradley Manning. In my opinion, ALL court cases should go to a full jury trial, not least so state prosecutors don't get to bully in secret.

----- You may believe that I go off-topic from here.

In a prior piece Mike Masnick actually responded:
'You guys are so biased you've decided my positions despite clear statements that prove you wrong. You're blind to reality. You insist I'm a "pirate." I am not. I do not infringe. I do not celebrate infringement.'

Now THAT is a masterpiece of lawyerly NON-statement. It's firm on the surface yet equivocal all over. Mike hasn't been wasting his time hanging round courts and reading transcripts: he's got lying by forthright irelevance and by omission both down pat. I begin to suspect he's going for another degree.

He starts with sympathy ploy:
"You guys are so biased" -- Well, I know myself to not be, and the ambiguous sentences above only increase suspicion.

"despite clear statements". -- Big deal, statements! I'm looking at Mike's ACTIONS defending known infringer Kim Dotcom, and his insistence that links to infringing content are perfectly fine. Piracy goes on with Mike constantly oozing away from placing blame on infringers, though he DOES place it on those who created the content!

"You're blind to reality." -- Another assertion that's mixedly true: he may mean we don't know the full truth. Some people get off on the notion THEY know the secrets and others don't. That's particularly likely to come into a writer's mind in a piece about magic, ain't it?

'You insist I'm a "pirate."" -- Mike put the double quotes in. What's his definition of the term since it's not literal or the common slang def? What does he mean, then?

"I am not. [a "pirate"] -- May be true, depends on his def.

"I do not celebrate infringement." -- This is NOT same as OPPOSING it. Again use the Megaupload case as example. Far as I see Mike does everything he can to facilitate piracy and provide pseudo-intellectual justifications to excuse both pirates and file hosts. But could as easily mean Mike regards infringement like a necessary breaking of eggs to make an omelette, and similarly, he just doesn't want to get his hands dirty.

As that's one of the few times Mike SEEMS to state his position on "piracy", but not copyright, I guess you fanboys just take the surface impression as full truth. Well, I don't. Wish you'd learn to parse words as lawyers do, because Mike has actually said NOTHING in that apparent denial.

Take a loopy tour of Techdirt.com! You always end up at same place!
http://techdirt.com/
Why so many self-referring links here? Techdirt logic: old assertions prove new assertions.
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Anonymous Coward, 5 Mar 2013 @ 6:09pm

He is not 'Raymond Teller better known as Teller'. He is Teller. He had his name legally changed and therefore Teller is his name. What's wrong with that?

The next time Gene Simmons says something stupid about piracy, please lead into the article like this:

Chaim Witz, not in any way better known as Gene Klein and way better known as Gene Simmons...

Since it's soooo important.
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frylock, 5 Mar 2013 @ 6:18pm

Re: Meh. Tricks by performing monkeys.
you guys are high.
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Anonymous Coward, 5 Mar 2013 @ 6:48pm

Re: Meh. Tricks by performing monkeys.
Maybe everyone should start using small words so that you can finally understand what is said.

You seem to read what you like into anything that is said.

Mike: I do not pirate Anything
OOTB: You must be a pirate because you do not agree with IP enforcement.
Mike: It is better to provide a easy to use service and convert pirates into paying customers
OOTB: You must be a pirate because you do not agree with IP enforcement.
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Anonymous Coward, 5 Mar 2013 @ 7:13pm

Re: What's wrong with that jury idea?
"In all seriousness, I don't see why they shouldn't get a jury made up of magicians."

I think a jury of magicians would likely be biased in favor of copyright overprotection.
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Anonymous Coward, 5 Mar 2013 @ 7:49pm

I see a future of videos posted to the internet of this magician doing nothing but Teller tricks next.
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Anonymous Coward, 5 Mar 2013 @ 7:54pm

Do you believe in magic, in a young girl's pants?
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Byte, 5 Mar 2013 @ 8:31pm

Re: Re: What's wrong with that jury idea?
Yes, Gwiz. See it coming? Next p2p case will have a jury made up out of file-sharers. "Not Guilty!"
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Anonymous Coward, 5 Mar 2013 @ 8:39pm

Re: Meh. Tricks by performing monkeys.
I've only been devouring this site for a month...

"You guys are so biased" -- Well, I know myself to not be, and the ambiguous sentences above only increase suspicion.

... and I get the impression you're biased against this Mike character.
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Anonymous Coward, 5 Mar 2013 @ 10:04pm

Re: Meh. Tricks by performing monkeys.
Take a loopy tour of OOTB's comments where you always end reading the same nonsense!
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Anonymous Coward, 5 Mar 2013 @ 10:10pm

Re: Meh. Tricks by performing monkeys.
>I want to see and understand reality

No, what you want to see and understand is a reality that agrees with you.
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Ninja (profile), 6 Mar 2013 @ 2:16am

I'd say this is a job for Mr M.
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Anonymous Coward, 6 Mar 2013 @ 2:46am

Re: What's wrong with that jury idea?
a jury of your peers dates from when England had far less mobility between social classes. ( working class, middle class, etc) The idea was that commoner should judge commoner and aristocrat should judge aristocrat. Magicians are not a distinct social class, so they can be judged by commoners.
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Zeissmann (profile), 6 Mar 2013 @ 2:52am

The Mad Magician
Kind of reminds me of one of Vincent Price's early horror films, The Mad Magician. Hope the conflict won't end in a similar fashion...
http://www.imdb.com/title/tt0047200/?ref_=fn_al_tt_1
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Richard (profile), 6 Mar 2013 @ 3:31am

Re: Re: What's wrong with that jury idea?
Depends on how you define a magician - professional magicians who also have a business selling tricks - maybe - but amateur magicians and professionals who only perform - not so much.

Personally I think they should settle this by performing the Penn and Teller "Bullet catch in the teeth" trick.
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Richard (profile), 6 Mar 2013 @ 3:34am

Re: Re: What's wrong with that jury idea?
Magicians are not a distinct social class, so they can be judged by commoners.

But that might involve revealing the secret of the trick to people who are not members of the magic circle.

Teller should be trown out of said organisation for going to law instead of settling the dispute within the magic community.
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Richard (profile), 6 Mar 2013 @ 3:37am

Re: Meh. Tricks by performing monkeys.
want to see and understand reality
You could've fooled me....
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Prashanth (profile), 6 Mar 2013 @ 5:22am

Penn & Teller: Libertarians
Given that Penn and Teller are libertarians, shouldn't they be advocating for a free-market-type solution to this dispute rather than advocating for government intervention through copyright lawsuits?
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dennis deems (profile), 6 Mar 2013 @ 6:22am

Wait so the USPTO now hands out copyrights??
Plaintiff successfully copyrighted the illusion with the U.S. Patent Office in 1983.
Maybe I'm completely clueless but how could this be true? It sounds like what Teller is trying to protect is not a copyright but a patent. And his 20 years were up 10 years ago.
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Chris Rhodes (profile), 6 Mar 2013 @ 8:30am

Re: Meh. Tricks by performing monkeys.
The popularity of "magicians" never ceases to amaze me because I'm not one who WANTS to be fooled: I want to see and understand reality. It's easy to fool someone. Just ask any three-card monte dealer on the sidewalk to demonstrate that YOU too can be fooled. But fantasy is big business because most people have some sort of primitive need to believe in "magic" -- and deny cold hard reality and pesky immutable laws.

So forget Teller's trick, kids. It's JUST a trick.
You have obviously never seen Penn and Teller's act, because they preach at length about this very subject. But hey, since when has being ignorant about a subject stopped you from ranting and raving like a lunatic for all to see?
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art guerrilla (profile), 6 Mar 2013 @ 9:41am

Re: Meh. Tricks by performing monkeys.
S.
T.
F.
U.

u r delusional, *not* smarter than everyone else...
blue-balled dickless wonder

art guerrilla
aka ann archy
eof
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John Fenderson (profile), 6 Mar 2013 @ 12:27pm

Re: Re: Re: What's wrong with that jury idea?
But that might involve revealing the secret of the trick to people who are not members of the magic circle.

The court system is well-practiced in handling confidential information in situations like this. I think those mechnisms could apply here.

Regardless, the bit about not revealing the trick is hopelessly obsolete anyway. In the age of the internet, it's trivial to find the secret behind just about every trick ever done -- and after reading enough of those methods, you are equipped to make a very good guess for those few tricks that aren't explained.

The only people who don't know how tricks are done are those who don't care or who actively don't want to know (and most people fall into one of those two camps).
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pegr, 31 Mar 2014 @ 6:03am

Teller wins
Teller wins because Dogge's defense was crap.

http://www.hollywoodreporter.com/thr-esq/teller-wins-lawsuit-copied-magic-690347
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hydroxide (profile), 7 Oct 2014 @ 2:18am

Re: Teller wins
No, Teller wins because once more US courts believe themselves to have global jurisdiction and authority over anyone on the planet. The concept of national sovereignty is evidently unknown to them. And that's, after all, not the first decision in that vein. Others have been discussed on these pages.

It would be one thing had Teller sued YouTube to remove the video the defendant had posted there. But suggesting a citizen of another country IN another country should comply with US Copyright law OR ELSE is ridiculous.
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