David Copperfield is a famous magician with a long-running show at the MGM Grand Hotel & Casino in Las Vegas. It sells out with regularity.
He is being sued for negligence by an audience member who suffered serious and permanent injuries while participating as a volunteer in one of the magician’s signature illusions. Copperfield has used that trick as the finale to his show for more than 10 years. The trick involves 13 audience members selected at random. Copperfield appears to vanish them from onstage and causes them to quickly reappear in the back of the theatre.
The illusionist was forced to disclose how the trick was done. Audience members are chosen at random and are brought to the stage. They all stand on a platform. A giant curtain is flung over it, removing the 13 from sight. In 60-90 seconds, the curtain is re-opened and the 13 people are nowhere to be seen. Copperfield then invites the audience to turn their attention to the back of the theatre. Lo and behold, there are the 13 audience members!
Turns out, stagehands with flashlights hustle the 13 through passageways, around corners, outdoors, back indoors, and through an MGM Grand resort kichen in time to enter the back of the theatre for their reappearance. After the illusion is completed, Copperfield meets with the group of 13 and asks them not to disclose how the trick is performed.
In the lawsuit , plaintiff described the route as “dark and dusty,” and alleged that the outdoor portion was coated with “construction dust.” The floor surfaces changed rapidly in the passageways from linoleum to cement, to carpet, sidewalk, and tile. While traversing the passages, plaintiff tripped and fell, hitting his head on the floor. When he returned home from his trip to Las Vegas he had chronic pain, headaches and confusion. A brain scan showed a lesion. Due to his injuries he is not able to continue his successful career as a chef to the stars.
Copperfield had sought to close the courtroom to the public to avoid making the big reveal for all to hear. Generally, courtroom proceedings in civil cases are open to the public with the objective that proceedings be conducted fairly. A judge can however close the courtroom temporarily to the public if it has a compelling reason to do so.
Copperfield argued that the courtroom should be closed when testimony was presented about how the trick was performed because that information is a trade secret. A trade secret is information that is important to a business and is maintained confidentially, meaning shared only with a few people who all have a need to know in order to do their job. In assessing whether the machinations of the trick constitute a trade secret, and so might justify closing the courtroom to the public, the court noted that at each performance the 13 participants learned how the trick was done. The court calculated 55,000 plus people have participated in the trick over the 10 years that Copperfield has performed it, and so that many people know how the trick is done. This does not a trade secret make.
At the trial, an exchange between Copperfield and the plaintiff’s attorney sums up liability in negligence cases. On cross-examination Copperfield was asked if he would be liable if an audience volunteer was hurt while participating in the show. The magician responded, “It depends on what happened. If I did something wrong, it would be my fault.” The attorney pressed on, “Your defense in this case is . . . if they participate and someone gets hurt, it’s their fault, not yours. Is that accurate, Yes or no? Copperfield’s response – “It’s not a simple yes-or-no answer.”
Note: The defense of assumption of risk would not apply because the 13 audience members were unaware of what their participation would entail. Therefore, they did not voluntarily agree to take part in a knowingly dangerous activity, a prerequisite for assumption of risk to apply.
According to Forbes magazine, Copperfield has an estimated net worth of $900 million, making him the richest magician in the world and one of the wealthiest entertainers in the world.
The illusion in question is no longer being performed by Copperfield.
Do you agree with the court's ruling that the secret behind the trick did not constitute a trade secret? Why or why not?