Beginning in 1911, Horace Goldin was engaged in developing the illusion under the name Sawing a Woman in Two. He had conceived the act 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. 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 this illusion. A woman is placed within an oblong box, with head, hands, and feet protruding, and the box sawed in half, the woman apparently being severed into two parts. Goldin has publicly presented in theaters in the U.S, either in person or through other performers, to whom he delegated the right to use the apparatus. The act was first offered to Ringling, who was organizing circus shows, as well as stage illusions. Since April 1921, Horace Goldin entered into a contract with the leading vaudeville theaters in the United States under the direction of Keith, for the production of this illusion on stage. The remuneration Horace Goldin received 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. Goldin deposited a film recording of the performance at the copyright office in the U.S in 1921.
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, How is it Done. The film shows the illusionist John Coutts doing an illusion of sawing a person into two parts, and the manner in which the said illusion is accomplished.
Horace Goldin, the illusionist, tried to prevent the circulation of the film of Clarion photoplays on the basis of the copyright of his theatrical performance. On June 5 1922, a first court case Goldin v. Weiss Brothers and Clarion Photoplays took place in New York. Goldin lost the case and then appealed. On July 14 1922, during the court case called Goldin v. Clarion Photoplays at the Supreme Court in New York Judge DOWLING 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. ... 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 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. ... Upon the facts disclosed by the affidavits herein, plaintiff has satisfactorily established that he is the originator of the illusion in question, which has achieved a great success under the title devised by him of Sawing a Woman in Half, or Sawing a Lady in Half, and that his creation of the illusion has been so universally recognized that the title thereof is in the public mind associated with his own name. The result of his ingenuity and skill has been to produce for him very large financial returns, with a reasonable prospect of their continuance for a long time to come. ... The defendants have availed themselves of the very same title as that devised by plaintiff, and have made use as well of an imitation or modification of his act, which apparently produces the same result, and the effect of which on the public is to produce the same illusion as that which plaintiff produces. The affidavits lead irresistibly to the conclusion that the defendants have simply sought unfairly and unjustly to profit by plaintiff’s success, by adopting the name which he gave to his illusion, and by copying his methods in an unfair competition and unreasonable interference with plaintiff’s rights, which the courts should and will prevent. ... The order appealed from will therefore be reversed, with $10 costs and disbursements to appellant, and the motion granted, with $10 costs, upon plaintiff giving an undertaking, the amount of which will be provided for by the order. Settle order on notice, and both parties may present a memorandum therewith, giving their views as to what the amount of such undertaking should be. All concur.”
In 1923, Horace Goldin also deposited a patent in relation to the devise used for the illusion Sawing a Woman in Two.
In 1933, Reynolds Tobacco Company, manufacturer of Camel cigarettes, in the course of the sale of its products has entered upon an advertising campaign in newspapers and posters called “It’s Fun to be Fooled... It’s more Fun to Know”, wherein there are displayed various theatrical illusions as well as an expose of the method by which such illusions are created. The advertising campaign also displayed one advertisement entitled Sawing a Woman in Half, which displays a stage performance wherein are shown a professional magician, two assistants holding a large cross-cut saw and an oblong box from which protrude the head, hands, and feet of a woman apparently severed into two parts. The advertisement further displays what purports to be an explanation of the method by which the illusion is effected.
Horace Goldin, the illusionist, tried to prevent the circulation of the advertising on the basis of his patent. He claimed that the publication and distribution of the advertisements and posters are destroying the value of his illusion and will render it impossible for him to procure future bookings in the United States and Europe where the advertisements are published. On January 25 1938, during the court case Goldin v. Reynolds Tobacco in the District Court of New York judge LEIBELL stated:
“... Defendant further avers that the plaintiff is patentee of letters patent granted June 12, 1923, for an Illusion Device, where plaintiff’s illusion is voluntarily described and disclosed to the public without any claim of right thereto being made therein; that such disclosure is a dedication of the trick or illusion to the public and that plaintiff’s rights are now limited by the patent grant to the exclusive manufacture, sale, or use of the device claimed in the patent for practicing the said trick or illusion. Defendant therefore denies that it has violated any right of the plaintiff or that plaintiff is entitled to damages, and asks that the complaint be dismissed. ... At or about the time defendant introduced to the public the advertisement complained of, it appears that only two magicians were employing the trick or illusion in America with permission of the plaintiff. One of these exhibited it occasionally for charity and without payment to the plaintiff; the other was licensed to use plaintiff’s patented device for a consideration. The evidence does not show with any degree of definiteness that the other discontinued the act because of the defendant’s advertisement. In fact, the contrary appears; i.e. that this other magician did continue to perform the act in question even after the advertisement was published. Aside and apart from any other consideration, the plaintiff has failed to show any loss or damage as a direct result of defendant’s acts. ... [Reynolds] has caused to be published a pictorial advertisement for ’Camel Cigarettes’ portraying a stage performance in which it appears that a professional magician has just succeeded in sawing a woman in half. Upon on a raised platform on the stage an oblong box has apparently been severed into two parts. From one-half of the box the head and hands of a woman protrude. From the other half a woman’s feet protrude. The picture is entitled Sawing a Woman in Half. Beneath the picture appears the words It’s Fun To be Fooled... It’s More Fun To Know. To the left of these last-mentioned words and beneath the picture the word Illusion appears. Below the fine print and in large type of the same size as the word Illusion is found the word Explanation. Beneath the word Explanation in fine print there follows: One method of performing this illusion requires the presence of two girls in the box. One girl curls up in the left half of the box with her head and hands protruding. The other girl is doubled up in the right half of the box with only her feet showing. Nobody is sawed in half. Beneath the socalled Explanation is a picture of a pack of Camel Cigarettes. ... The name of the plaintiff does not appear in the advertisement. The technical details of the performance of the trick or illusion are nowhere disclosed. Plaintiff’s patented device is not described. Apart from the fact that the so-called Explanation states that one method of performing this illusion requires the presence of two girls in the box, one at either end, there is no disclosure. Certainly no one in the audience is naive enough to believe that the subject is actually severed into two parts, especially when the magician walks between the two halves of the box after the apparent severing, as the testimony discloses. The average person would know that one way of performing the illusion would be to use two girls. To put this fact in print under the word Explanation is but to state the obvious. There is therefore in my opinion no disclosure of any unknown or unascertainable fact. In my judgment it cannot be seriously maintained that the fine print beneath the word Explanation appearing in the advertisement is really such a disclosure as would destroy the value of plaintiff’s illusion, assuming that plaintiff does have the sole and exclusive right to the performance, display and control of the trick. On those facts alone plaintiff’s claim cannot be sustained. ... In addition, testimony adduced at the trial shows that the plaintiff obtained a patent, No. 1,458,575, in the United States Patent Office, on June 12, 1923, for an illusion device, nearly ten years before defendant’s advertisements were published. ... Certainly this is a clear and detailed expose of the secret to the public by the plaintiff himself. Any one who cares to can rightfully and lawfully procure a copy of said patent, containing a full detailed and diagramed explanation of the trick, upon request made to the United States Patent Office. ... Furthermore, the claims which the plaintiff makes in his patent are all limited to an Illusion Device. He claims a monopoly only on the apparatus for performing the trick. He could make no exclusive claim to the illusion itself. Fearful that some one might honestly and lawfully discover the manner or method by which he created the illusion and then lawfully duplicate his apparatus and lawfully perform his trick the plaintiff has sought protection under the statute for what he could protect; namely, the apparatus. To this he has been granted an exclusive monopoly. ... Defendant has made no use of plaintiff’s patented apparatus. It has merely pictured in connection with and as a part of its advertisement an ordinary oblong box cut into two parts. The interior or the structure of the box is not shown or explained. ... Plaintiff is attempting in this suit to protect what he mistakenly claims to be his sole and exclusive secret. He maintains that he has a property right in the secret, and that it cannot be taken from him and used by another to the other’s advantage and to his detriment. Plaintiff claims that his discovery is in the nature of a trade secret, and, as such, it is entitled to protection. It is undoubtedly true that trade secrets have been recognized as property rights from a comparatively early date, but closer examination of the cases dealing with the protection afforded trade secrets shows that there was some trust contract or confidential relationship between the party claiming the exclusive right to the secret and the party sought to be enjoined from making use of such secret, or between the party seeking the injunction and a person from whom the defendant improperly obtained knowledge of the trade secret. ... It must be remembered that the secret process or formula or whatever else the secret may consist of, ceases to be treated as a “property right” as soon as a third party, through his own efforts, or investigation or through any other fair means obtains knowledge of the other’s secret, and that an honest discovery and knowledge of a secret formula or any other trade secret may justify its use in trade even though the business of another, who had discovered and used it previously, is injured thereby. ... The plaintiff and the defendant are total strangers to each other. Prior to the commencement of this suit they had no business contacts. The parties are engaged in entirely different endeavors. They in no way come into competition with each other. No trust, employer employee, contract, or confidential relationship is shown to exist, nor is it shown that defendant, improperly, unlawfully, or illicitly procured the secret of the illusion from plaintiff’s possession. ... Having elected to rely upon monopoly by procuring a patent on An Illusion Device, plaintiff abandoned his secret to the public. Having patented his apparatus for performing the illusion, he published the secret of the illusion. That which up to the time of the issuance of the patent was a secret ceased to be such upon the granting of the patent, for the patent is itself a publication of the secret. ... Even assuming, therefore, that the defendant did disclose the secret of the illusion in the advertisement complained of, it did not reveal to the public any thing or any fact of which the public was not already deemed to have knowledge. ... I am of the opinion that the plaintiff cannot succeed either on the law or on the facts, and therefore that the complaint should be dismissed.”