Strike A Pose – Just Don’t Expect to Get Copyright Protection For It
December 30, 2015
by Jerry Glover
Even if you’re not a yoga enthusiast, you’ve probably heard of Bikram Choudbury (the self-proclaimed “yogi to the stars”) or Bikram Yoga. He recently tried to claim copyright protection for a series of 26 yoga poses and two breathing exercises but was denied that protection by the U.S. Court of Appeals for the Ninth Circuit. Bikram’s Yoga College of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032 (9th Cir. 2015).
Choudbury had published a book in 1979 which included descriptions, photographs and drawings of the poses and breathing exercise. In 2002 he registered a compilation of those same exercises separate from the book’s copyright. The defendants in this case offered several types and style of yoga at their school including a system of sequenced exercises similar to Choudbury’s. After Choudbury filed suit against the defendant school, the trial court ruled that Choudbury’s sequence of exercises apart from the book were not copyrightable because they were merely a collection of facts and ideas. Choudbury appealed.
The appeals court noted that Section 102(b) of the U.S. Copyright Act excludes from protection “any idea, procedure, process, system, method of operation, concept, principle or disco very.” Therefore, ideas, theories and facts are available for anyone to use and exploit. For example, no one can claim copyright protection for boy meets girl, boy loses girl, after some turmoil boy gets girl back (choose your genders). It is the original expression of those ideas, theories and facts that is protected by copyright. Think: West Side Story, Romeo and Juliet, etc.
The court analogized this case to an 1879 U.S. Supreme Court case which concerned the copyrightability of a book that explained a system of bookkeeping. Baker v. Selden, 101 U.S. 99 (1879). The Supreme Court held that even though the book might be copyrightable, the system it described was not noting that the explanation of the system in the book was protected while the system itself is not. The appeals court also noted that a book describing a surgical procedure would not entitle the author the exclusive right to perform the surgery simply because the book is protected by copyright, And it makes no difference how much time and effort may have gone into creating a system. Copyright protection is not granted simply because sweat equity was expended. The fact that the performance of a sequence or system may be beautiful, as Choudbury claimed, does not mean copyright protection should be available. Think of the “beauty” behind a surgeon’s intricate movements.
The Ninth Circuit noted that drawing the line between fact and expression is usually difficult. The court added that giving Choudbury a monopoly on this sequence of exercise would hinder one of the primary purposes of copyright law: to promote the progress of the arts not to reward the labor of authors (although the latter is one of the reasons behind the US Copyright Act). And to promote that progress, people must be allowed to build on those ideas that came before them. Here, the public must be allowed to engage with Choudbury’s idea and build upon it.
Choudbury also claimed that the yoga sequence was a compilation and therefore entitled to copyright protection. Section 103 of the Copyright Act defines a compilation as a “work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” Choudbury claimed that his selection and arrangement of the poses was original and therefore subject to copyright protection as a compilation.
But the appellate court disagreed. The court reiterated that the yoga series was a process or system and must because it may consist of many “constituent parts” does not transform the series into material eligible for copyright protection. The court noted that the yoga series was created and arranged in a way that maximized health improvement so the arrangement of the exercises was dictated by a practical concern not by the “author’s” expression.
Finally, Choudbury argued that the yoga exercises were protected as choreography, another category of copyrightable subject matter. The court noted that the Copyright Act does not define choreography but noted that Congress in its deliberations leading up to the passage of the Act stated that “choreography” does not include social dance steps and simple routines. The court added that the Copyright Office has noted that choreography or dance includes “static and kinetic successions of bodily movement certain rhythmic and spatial relationships” and must be more than mere exercise and that it is usually intended to be accompanied by music but need not tell a story and need not be presented before an audience.
The Ninth Circuit, however, determined it was not necessary to accept any particular definition of “choreography” since the yoga exercises amounted only to an idea or system adding that to hold that the sequence involve “static and kinetic successions of bodily movement” would mean that churning butter or drilling for oil might be copyrightable. The court concluded that body movements do not become copyrightable if they are a part of a non-protectable process.
NOTE: A recent decision from a federal district court in California has held that an app that alerted drivers to various driving hazards and pointed out traffic cameras may be copyrightable as a compilation based on the selection of material included in the app. The court heavily relied on the Choudbury case to reach that conclusion. See Phantomalert, Inc. v. Google, Inc., 2015 WL 8648669 (N.D. Cal. December 14, 2015).