난쟁이는 어떻게 거인의 어깨 위에 올라갔을까— 마술 표절에 대한 법적 보호 검토 —

Imitation is a step that must be taken before creation. Aristotle also discussed about imitation in Poetry, and the famous phrase “If I have seen further, it is by standing on the shoulders of giants” also translates into the accumulation and influence on knowledge and art. Magic, as a form of novelty performance art, also evolves from the precedent and brings pleasure to the audience. Unlike singers, magic must constantly introduce something new and wonder. For this reason, magic depends on two pillars; secret and expression. In case of the secret, there are various methods for the same expression since the audience can not see the secret. On the other hand, the magician has to show his/her unique expression to be a successful magician. But since creating an unique magic is not easy, magicians are tempted to steal or copy other's work. Since the golden age of magic to the present, many magicians plagiarized each other's magic. Magic could have been developed because of such thefts. As dwarf climbs up the shoulder of the giant to be a successful magician, dwarf may climb up the shoulder without the permission from the giant; by stealing or copying, which may lead to an accusation of plagiarism and even a violation of law. Magic community protects its ecosystem through its internal norm(Lex Magica). It has a more rigid citation system than the copyright law provides, and recognizes strong protection for the original author. Furthermore, it is most forbidden to reveal one's magic or copy other's work. But Lex Magica ultimately has imitations in terms of forcing its rules. There is also the possibility of public opinion trial instead of rational judgment based on plagiarism. Moreover, in the case of so-called the reverse confusion, where a famous magician copies a relatively less famous magician's work, it is not easy to resolve such crime. For the plagiarism that falls outside the scope of the Lex Magica, the intellectual property law including the copyright act may be applied. In the case of a patent or trademark, there is a problem about the plagiarism which occurred before the application, especially when the plagiarist makes a prior application. Copyright law provides protection of rights against plagiarism in comparison to other intellectual property laws. However, even if the magician is in the status of the performer, the range of reproduction rights of the performer is narrower than that of the author. And there is a limit in view of the fact that the performer has no rights of derived work. In recent years, the unfair competition prevention law seems to broaden the scope of protection of ideas through amendments, including general provisions. If magic is recognized as an idea with economic value in the context of performance theft or trade relations, the protection of unfair competition law can be sought. Of course, in a situation where autonomy is not fully settled, so-called Juri stocracy, where the rule of law intervenes, could be dangerous. Recently, magicians are holding seminars and discussions to protect their rights. In accordance with the formation and development of autonomy, the law should also increase the understanding of new areas.