Half of ‘Penn & Teller' Magic Duo Gets Win Against Magician Who Put Trick Online

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By Anandashankar Mazumdar

Oct. 3 — Noted magician Teller of the duo Penn and Teller secured a default judgment Sept. 30 against a Belgium-based magician who posted a video of a trick online that was similar to one of Teller's signature illusions—“Shadows”—and offered to sell the secrets.

Although, the U.S. District Court for the District of Nevada granted Teller's motion for the default judgment, it also significantly cut down his requested statutory damages and attorneys' fees.

Signature Trick for Nearly 40 Years

Teller (born Raymond J. Teller in 1948) is a magician who, along with Penn F. Jillette, performs in the Las Vegas-based duo Penn and Teller.

In 1976, Teller created his signature trick, “Shadows,” which involves a rose in a vase, and is still part of Penn and Teller's on-stage repertoire. In 1983, Teller registered “Shadows” as a creative work with the Copyright Office.

Gerard Dogge, p/k/a Gerard Bakardy, is a Belgium-based performer who began performing a work called “The Rose and Her Shadow.”

Dogge posted two videos on YouTube of him performing this trick and offered to sell the props associated with the trick. The metadata for the videos included “Penn” and “Teller” as keywords for online searching.

Teller sued Dogge, alleging copyright infringement. The court noted that Dogge had been uncooperative during the progress of the proceeding and imposed sanctions.

In March, the court granted summary judgment of copyright infringement in favor of Teller. Teller then moved for default judgment on the issues of willful infringement and unfair competition and sought $150,000 in statutory damages, a permanent injunction and an award of attorneys' fees and costs.

Statutory Damages Lowered

Applying a four-factor test set forth in Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1980), the court concluded that default judgment was appropriate.

However, turning to the question of statutory damages, the court noted that Dogge's videos had been viewed on YouTube less than 15 times each before YouTube took them down, and there was no evidence that he had sold the props. Thus, the court awarded $15,000 to Teller instead of his request of $150,000.

The court also acceded to Teller's request for a permanent injunction prohibiting Dogge from performing his “Shadows” act. However, the court declined to enjoin Dogge's sale of the rose-flower prop, noting that it could be used for purposes other than infringement of Teller's copyright interests.

Finally, the court awarded Teller attorneys' fees and costs of $530,000, approximately half the nearly $1 million that Teller had sought.

The court's opinion was issued by Judge James C. Mahan. Teller was represented by Greenberg Traurig LLP, Las Vegas. Dogge represented himself.

To contact the reporter on this story: Anandashankar Mazumdar in Washington at amazumdar@bna.com

To contact the editor responsible for this story: Tom Taylor at ttaylor@bna.com

Full text at http://www.bloomberglaw.com/public/document/Teller_v_Dogge_Docket_No_212cv00591_D_Nev_Apr_11_2012_Court_Docke/2.