For years the magic industry has managed to protect intellectual property without any recourse to patent, copyright, or trade secret law, according to a study by Jacob Loshin of Yale Law School, to be published next year in Law and Magic, a forthcoming anthology from Carolina Academic Press.
The standard argument against intellectual property laws stresses that, unlike physical property, my use or possession of an idea doesn't preclude you from using or possessing the same thing. That isn't necessarily the case with magic, though, since exposing how a trick works destroys what is arguably its most valuable characteristic: its mystery.
But the usual legal means of protecting ideas don't work for magic. You can't copyright a method for pulling off a trick. Patenting, which some magicians tried in the 19th century, requires revealing the secret in a public forum. And since magicians have a culture that includes a fair amount of sharing among themselves, trade secret law, which is mostly aimed at protecting ideas from competitors in the same field, doesn't work well for magic either.
Loshin finds that magicians have protected their intellectual property for centuries, without any explicit legal assistance, via a set of communal norms that encourage both innovation and a limited sharing of tricks and techniques within, but not outside, the magic community. They do this through such means as professional societies where members must vouch for you before you are admitted and published communications that are scrupulously sold only to other professionals.
His study of magic, Loshin writes, proves "the power of norms, buttressed by organic relationships and self-organizing institutions, to create alternative IP [intellectual property] regimes that enforce unique, industry-specific IP rights." He concludes that intellectual property is certainly important for magic, but protecting it "does not necessarily need intellectual property law."