Alexander Film exhibited in 1922 in the state of New York and elsewhere a Clarion Photoplays 35mm black and white film made by the Weiss brothers under the title 'Sawing a Lady in Half'. The film shows John Coutts doing an illusion of sawing a person into two parts, and the manner in which the said illusion is accomplished.
Horace Goldin, an illusionist, who performed an illusion called also "Sawing a lady in half" tried to prevent the circulation of this film of Clarion photoplays on the basis of the copyright of his theatrical performance.
§ 102. Subject matter of copyright:
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
During the court case called GOLDIN v. CLARION PHOTOPLAYS in 1922 in New York the judge stated:
"Horace Goldin for 25 years last past has been engaged in the theatrical profession in this country and elsewhere throughout the world, presenting to the public, in theaters and other places of amusement, new, novel, and extraordinary productions, more particularly known upon the stage as illusions or magic. The success of these illusions depends upon the inability of the average audience to grasp by observation the method employed by the performer, and their value, therefore, depends upon the degree of mystery in which the performer is able to envelop the means which he uses to accomplish the end.
Beginning in 1911, Horace Goldin was engaged in exhibiting an act which he had conceived some years before, known as 'Vivi Section,' which consisted of an illusion by which various parts of the human body were apparently severed therefrom and subsequently joined together. This act Horace Goldin produced himself, or it was shown under license granted by him, in Great Britain, Egypt, China, Japan, and Java, among other countries. As the result of his experience with this act, Horace Goldin conceived the idea that the illusion would be more effective, if an entire body were apparently separated into two parts, and, after devoting a great deal of time and thought to the subject, he finally, in the year 1919, perfected such an illusion and offered it for exhibition by himself, under the name 'Sawing a Woman in Two,' or 'Sawing a Lady in Half.' It was offered at that time to one Ringling, who was interested in circus shows, as well as in the production of stage illusions. In April, 1921, Horace Goldin entered into a contract with the leading vaudeville theaters in the United States under the direction of the Keith interests, for the production of the said illusion upon the stage, and since that time he has publicly presented the same in the leading vaudeville theaters in this country, either in person or through other performers, to whom he delegated the right to use the apparatus or other properties necessary. The act was produced in first-class theaters, the remuneration received by Horace Goldin under his contracts amounted in some weeks to more than $2,000, and he had reason to believe that he could secure bookings for the act for an unlimited period of time, as it was in great demand, due to its drawing power and the apparent inability of audiences to grasp or explain the so called mystery."...
"Clarion Photoplays claimed there is no novelty in the illusion, because in the British Museum there is an Egyptian papyrus which contains an account of a magical séance given by a certain Tchatchaemankh before King Khufu, 3766 B. C., and wherein it is stated of the magician: 'He knoweth how to bind on a head which hath been cut off,' and in proof of this they refer to a publication called 'Magic,' written by one Albert Hopkins, and published in New York City in 1897. But upon examination of the said book it appears that the remaining part of the sentence in question is, 'He knoweth how to make a lion follow him as if led by a rope, and he knoweth the number of stars in the house (constellation) of Thoth;' but, while the author of the book suggests that the first of these alleged feats was accomplished by hypnotism, and adds, 'The decapitation trick is thus no new thing,' he offers no explanation as to how it was accomplished. Clarion Photoplays further refer to pages 48 and 49 of the same publication wherein a trick is shown, known as 'Decapitation'; but this is accomplished by means of a dummy head, and bears no analogy to the Horace Goldin's illusion, nor is the other act described therein, apparently performed upon the body of a clown, in any way as complete a mystification, nor carried to as successful a conclusion, as the Horace Goldin's act. Great stress is also laid upon the description by Robert Houdin, in his 'Memoirs,' published in English in Philadelphia, in 1859, of an illusion produced by one Torrini in Constantinople in the 18th century, known as the 'Two Pages.' But, similarly, there can be found no resemblance between the methods employed to accomplish the result in the variations of this illusion which Houdin described and the means resorted to by the Horace Goldin.
The Clarion Photoplays further contend that their moving picture is not intended to expose the method by which Horace Goldin performs his illusion, but that it is a repetition of a method used by one Coutts, who claims to be an owner of an act which he has performed in vaudeville, known as 'Sawing a Lady in Half'; but he has not shown that he has preceded the Horace Goldin in the creation of the act in question, or that it is anything save an imitation of Horace Goldin's act, with points of difference intended to save him, if possible, from the consequences of his simulation. While the Clarion Photoplays strenuously deny that Horace Goldin originated the act in question, it appears that Coutts' modification or imitation of Horace Goldin's methods is an adaption of the method resorted to by one Selbit to produce the illusion in question, and Horace Goldin has already obtained an injunction against Selbit to prevent his reproducing the act in question. Furthermore, Horace Goldin produces certain affidavits which seem quite convincing that Horace Goldin really originated the illusion in question.
- Harry Houdini, a producer of magical feats and illusions since 1882, and president of the Society of American Magicians and of the Magicians' Club of London, states that, so far back as his memory and records go, he is positive that he never witnessed a production of the illusion 'Sawing a Woman in Half' by any one other than the Horace Goldin. He also swears that the performance of Horace Goldin and those attempted to be made by Clarion Photoplays in the motion picture are not materially different, and that Clarion Photoplays's production exactly reproduces the illusion of Selbit, who, as has been said, Horace Goldin has already enjoined in the Ohio state court. Houdini is the author of a book called 'The Unmasking of Robert Houdin,' and he verifies the claim that the illusion of the 'Two Pages,' described by Houdin, is impractical for modern production, and could not now be presented upon the stage, and is distinctly different from Horace Goldin's act. Something more is required than merely the development of the theory of an illusion; to be successful, he swears, it must be so carried out as to completely deceive the public and by means which it cannot grasp.
- Servais Le Roy, a professional magician for over 35 years, has been producing the illusion in question for many weeks under a license from the Horace Goldin, for which he pays him the sum of $250 weekly, which, he says, is the highest royalty ever paid to a creator of an illusion or magical performance; this being due to the great success it has achieved in the theatrical field. Naturally, he recognizes Horace Goldin's right of priority or he would not be paying this amount. He also swears that the production of this motion picture film will ruin Horace Goldin's performance and prevent the booking of further dates. ...
- Harry Thurston, a stage magician, makes affidavit that the illusion, 'Sawing a Woman in Half,' is the sole invention of the Horace Goldin, who, at various times, in his presence, built, improved, and perfected his original idea of the illusion in Thurston's workshop, at Whitestone, Long Island. For the privilege of using the illusion, he allowed Horace Goldin to build the original outfit at his workshop, and paid him about $2,000 in cash and labor to assist in completing the original equipment. ... Horace Goldin has satisfactorily established that he is the originator of the illusion in question"... "Not merely have Clarion Photoplays imitated or copied the illusion of which Horace Goldin is the creator, but they have undertaken to give a title to their picture, which is precisely the same title under which the Horace Goldin has continuously produced his act."...
"The act has always been produced by Horace Goldin under the title 'Sawing a Woman in Two,' or 'Sawing a Lady in Half,' which he himself devised and first used, and these titles have become identified with Horace Goldin's name to such an extent that theater managers and the public immediately connect the two." ... "Clarion Photoplays have simply sought unfairly and unjustly to profit by Horace Goldin's success, by adopting the name which he gave to his illusion."...
"It is shown that, as the result of the motion picture in question attempting to expose or explain the manner in which Horace Goldin performs his illusion, it is deemed by the management of the Keith theatre circuit, whereon Horace Goldin has exhibited the same for a long time, to have the effect of depreciating the value of Horace Goldin's act to such an extent that, as they have advised Horace Goldin in writing, it would render Horace Goldin's act absolutely valueless, since the very mystery or trick of the act would be gone; and therefore, if the Clarion Photoplays' picture is exhibited in the same towns where the said Keith circuit had booked Horace Goldin's act, they notified him that it would be necessary for them to cancel his act therein."
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|Starship Nummer 11, Seiten 64ff|