Tag: Yoga

Ninth Circuit “Twists” Things Up for IP Protection in Yoga

In a recent decision, the U.S. Court of Appeals for the Ninth Circuit held that a certain yoga sequence developed by legendary yoga teacher Bikram Choudhury was not eligible for copyright protection.  The Court’s decision was based on the fundamental copyright principle known as the “idea/expression dichotomy,” which states that copyright protection is limited to the expression of ideas, and cannot extend to the ideas themselves.  The Court concluded that because the yoga sequence is an idea, process or system designed to improve health, copyright can protect only the words and pictures that are used to describe the yoga sequence (i.e. the book in which the sequence is described), but cannot be extended to protect the idea of the sequence itself.

Meditation

As a bit of interesting background, Bikram Choudhury, founder of the worldwide Yoga College of India, began his yoga career in India at the ripe age of four years old.  After he immigrated to the US in the 1970s, he opened a yoga studio and began offering classes in which a sequence of twenty-six yoga poses and two breathing exercises (known as the “Sequence”) was practiced over the course of ninety minutes in a room heated to 105 degrees Fahrenheit (intended to mimic the climate of India).  Bikram soon became a central figure in the yoga community in the US, including among the celebrity circuit and professional athletes.  In 1979 he published a book titled Bikram’s Beginning Yoga Class, in which the Sequence was described. Bikram registered the book with the Copyright Office in 1979, and in 2002 registered a “compilation of exercises” contained in the book.

The roots of the present dispute were planted in the 1990s, when Bikram introduced the “Bikram Yoga Teacher Training Course.”  The defendants in the present case completed Bikram’s course, and subsequently began offering “hot yoga” classes in their own studio, in which a style of yoga similar to the Sequence was taught.  Bikram then filed a complaint alleging that the defendants infringed Bikram’s copyright.

Of course, to prove a claim of copyright infringement, a plaintiff must first prove it has a valid copyright.  This is where Bikram did a “downward dog.”

First, the Court noted that the Sequence is a “system” or “method,” which was designed to “systematically work every part of the body, to give all internal organs, all the veins, all the ligaments, and all the muscles everything they need to maintain optimum health and maximum function.”  Thus, the Court went on, Bikram’s attempt to secure copyright protection for a healing art, or a system designed to yield physical benefits and a sense of well-being, was precluded by the idea/expression dichotomy. Essentially, the idea/expression dichotomy, which is codified in 17 U.S.C. § 102(b),

strikes a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts [and ideas] while still protecting an author’s expression.

The Court next addressed Bikram’s contention that the Sequence was entitled to copyright protection as a “compilation.”  A compilation is “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.”  17 U.S.C. § 101.  The Court noted that while a compilation may be eligible for copyright protection, it must nevertheless represent an “original work[] of authorship,” as required by Section 102. The Court held that the fact that the Sequence may possess many constituent parts did not transform it into a proper subject of copyright protection.

The Court then rejected Bikram’s argument that the Sequence was entitled to copyright protection as a “choreographic work.”  Although a “choreographic work” is a statutory category of work entitled to copyright protection, this term has not yet been defined in the copyright context by the Court or by Congress.  Nevertheless, the Court noted that defining the term was not necessary, since regardless of category, the work must meet the originality requirement imposed by Section 102.    Thus, the Court held:

The Sequence is not copyrightable as a choreographic work for the same reason that it is not copyrightable as a compilation: it is an idea, process, or system to which copyright protection may in no case extend.

As long as this case law is upheld and followed, proprietors of yoga sequences and similar matter will have a difficult time in getting past the “idea/expression dichotomy” hurdle, and may have to say “neti-neti” to copyright protection.  However, other forms of intellectual property protection may be available.  For example, in this case, the Court specifically noted that “if [the Sequence] is entitled to protection at all, that protection is more properly sought through the patent process.”  Additionally, proprietors can adopt and develop good will in a brand for the specific services associated with their sequences or similar matter (such as educational services in which the matter is taught), and rely on trademark law to prevent others from offering similar services under a similar mark.

Until the next yoga move in the IP arena, Namaste.

Article By Beth A. Seals of Squire Patton Boggs (US) LLP

© Copyright 2015 Squire Patton Boggs (US) LLP

Practice What You Preach – Yoga Remains Uncopyrightable, for Now

bikram yoga copyrightBikram Choudhury is famous for being the world’s most successful – and eccentric – yoga guru, and the pioneer of his self-branded, mass marketed Bikram Yoga. Bikram Yoga consists of a sequence of 26 yoga poses, or asanas, and two breathing exercises, performed in a very hot room (100 degrees!) for 90 minutes. The term Bikram Yoga is protected by trademark, but you will see similar yoga practices referred to generically as “hot yoga.” Mr. Choudhury has also been the subject of certain lawsuits filed by women who attended his wildly successful nine-week hot yoga teacher training course (which can cost up to $10,000). But whatever you think about Mr. Choudhury, one thing is clear – he doesn’t want anybody else teaching his specific hot yoga sequence.

Mr. Choudhury has probably come under more fire for his attempt to lock up his hot yoga sequence than he has for his other legal issues. That’s because yoga and intellectual property rights are not ideal bedmates. Yoga is an ancient practice that teaches liberation and growth, while intellectual property tends to be about what’s mine and not yours. To many, trying to “own” yoga in any way is antithetical to the very spirit and purpose of the yoga practice.

But going against the grain does not bother Mr. Choudhury. Mr. Choudhury owns a copyright registration for his Bikram Yoga sequence, attained as a supplemental registration to a 1979 copyright he owns in his book Bikram’s Beginning Yoga Class, which describes the sequence. He has sued several prior students who took his course, went out on their own, and began teaching a 26-pose “hot yoga” course which, Mr. Choudury alleges, is too similar to his own. In response to Mr. Choudhury’s efforts to lock up this particular sequence of poses, Open Source Yoga Unity, an organization for the “continued natural unfettered development of yoga for all to enjoy,” sought a court’s ruling that Mr. Choudhury does not have valid copyright in the Bikram Yoga sequence.

The details of the various legal battles (many of which resolved by settlement before a decision on the merits) are very well explained on Open Source Yoga Unity’s Facebook page (https://www.facebook.com/yogaunity). The key take-aways, so far, are that each yoga asana, itself, is firmly in the public domain. The dispute is only with respect to the specific sequence of 26 yoga asanas that Mr. Choudhury claims to have been the first to select and arrange, as well as all derivatives that are “substantially similar” to the original sequence. See Open Source Yoga Unity v. Choudhury, 2005 WL 756558 (N.D. Cal. April 1, 2005). Resolution of Mr. Choudhury’s copyright claims revolves around whether his hot yoga sequence is a creative expression, copyrightable as choreography, or merely uncopyrightable functional physical movements. Id. Most team sports activities, for example, aren’t copyrightable because they are unscripted and don’t involve a fixed routine of motions. See, e.g., National Basketball Association and NBA Prop., Inc. v. Motorola, Inc., 105 F.3d 841, 846 (2d Cir. 1997) (no copyright in basketball games). Hot yoga would appear to fall somewhere between basketball and ballet. Exactly where yoga falls on this continuum of creativity remains to be determined.

In 2012, the United States Copyright Office issued a policy statement, stating that yoga sequences are “not the equivalent to a pantomime or a choreographic work” and “could not be protected as compilations[.]” The Copyright Office recognized that it had been an error allowing Mr. Choudhury to file his supplemental registration, and that no other registrations of that type would be allowed. You have to wonder if Mr. Choudhury smiled at that – not only does he own a registration for his yoga sequence, but nobody else ever will!

But, the Copyright Office’s Policy Statement is merely that; it is not law. In Open Source Yoga, seven years prior, the court held that while “application of the law of compilations to yoga asanas appears to violate the spirit of yoga,” it was “unable to locate any authority that precludes such application.”  Therefore, if the trier of fact determined that a sufficient number of individual yoga asanas are arranged in a sufficiently creative manner, copyright protection would be available.  The case settled outside of court. In a case filed after the Copyright Office’s Policy Statement, the court agreed with the Statement, holding that where the poses are said to result in improvements in one’s health or physical or mental condition, as Mr. Choudhury claims they do, they are not copyrightable.  Bikram’s Yoga College of India, L.P. v. Evolation Yoga, LLC, 2012 WL 6548505 (C.D. Cal. Dec. 14, 2012). Mr. Choudhury promptly appealed this ruling and, as of this article, we await a decision from the Ninth Circuit Court of Appeals.

For now, the ancient yoga teachings of liberation, spirituality, and healing carry the day. But, given Mr. Choudhury’s litigiousness and the uncertainty of the pending appeal, yogis still have to look over their shoulders when teaching Mr. Choudhury’s particular brand of hot yoga.

Article By Nadya Davis of Holland & Hart LLP

Copyright Holland & Hart LLP 1995-2015.

Hold That Pose: Can the Bikram Yoga Sequence Be Protected by Copyright Law?

Over the past decade, the Copyright Office has issued hundreds of yoga-related copyrights for books, videos, and the like —protecting intellectual property for a fitness/spiritual lifestyle that has bent itself into a $27 billion industry. Although yogis have several options to twist themselves into shape, one style in particular has stood off the mat—Bikram yoga.

A type of hatha yoga characterized by a set series of postures and breathing exercises, Bikram yoga is performed in a room heated to a high temperature (roughly 105 degrees Fahrenheit). All Bikram classes run for 90 minutes and consist of the same series of 26 postures (the “Sequence”), including two Pranayama breathing exercises. Popularized by esteemed guru Bikram Choudhury in the 1970s, Bikram yoga is now taught by instructors all over the United States.

The popularity of Bikram yoga appears to have shaken the original founder’s zen. Indeed, Mr. Choudhury has sued several studios, like NYC’s Yoga to the People, for copyright infringement, reaching settlements that have prevented studios from using the Bikram name or copying the Bikram Sequence. Faced with lawsuits, such studios must either sweat it out in court or otherwise capitulate and lie down in savasana (or corpse pose).

One such case occurred in 2011, when Choudhury and Bikram’s Yoga College of India sued Evolation Yoga for copyright infringement and related claims (e.g., trademark infringement and violations of teacher-certification agreements). Codefendants (also husband and wife) Mark Drost and Zefea Samson are former trainees of Bikram’s course of study and became authorized to teach Bikram’s Basic Yoga System. The two eventually formed Evolation Yoga, which uses the same Sequence, prompting a cease-and-desist letter demanding the pair stop teaching Bikram yoga. The plaintiffs argued that the Bikram yoga Sequence should be protected as a compilation and as choreography (and are within the ambit of Choudhury’s various copyrights for his yoga-related books depicting the Sequence).

In December 2012, a California court dismissed Choudhury’s copyright claims, leaving related trademark and breach of contract claims for a future session. The court remained inflexible to the notion that the Sequence of Bikram yoga poses could be protected by copyright law, causing studios everywhere to relax their muscles. (Bikram’s Yoga College of India, L.P. v. Evolation Yoga, LLC, 2012 WL 6548505 (C.D. Cal. Dec. 14, 2012)).  The court held that although books or photographs that depict a compilation of exercises may be copyrightable, the compilation authorship would not extend to the selection of the exercises themselves depicted in the photographs: “There is a distinction between a creative work that compiles a series of exercises and the compilation of exercises itself. The former is copyrightable, the latter is not.”  Moreover, the court found that, as a functional system that promotes physical and mental benefits, yoga postures cannot be registered for copyright. In dismissing Choudhury’s claim, the opinion meditates on a U.S. Copyright Office statement of policy declaring that a compilation of exercise or yoga moves does not fall under one of the Copyright Act’s eight categories of authorship. Consequently, and according to the policy statement, yoga poses are ineligible for copyright protections. (See 77 Fed. Reg. 37605 (June 22, 2012).)

Appealing to a higher power (that is, the Ninth Circuit), Choudhury’s lawyers are trying to get the case sent back to the yoga mat. Last month at oral argument, Choudhury’s counsel argued that, while individual poses are not copyrightable, the guru is trying to protect his “creative vision” in his specific 26-pose Sequence. Balancing yoga positions with ballet poses, Choudhury argued that all such forms of physical movement should be eligible as a protectable compilation or expressive choreographic work, or, at the very least, protectable against verbatim copying.  The appellants also argued that the Copyright Office’s policy statement should not be entitled to any deference by the court.

Remaining firm in tadasana (or mountain pose), the defendants reasserted and stretched the lower court’s ruling that copyright protection extends only to books containing Choudhury’s instructions, not to the routine itself—much like a cookbook author’s inability to protect the actual cooking of a recipe.  Bikram’s arguments also have drawn bad vibes from Yoga Alliance, an international trade association, which filed an amicus brief in support of defendant, finding that Bikram’s position “would be devastating to the yoga community.”

Until the court of appeals releases its decision, Bikram yogis across the country will continue to warrior their way through 105-degree heat. (Don’t try this at Om.)

ARTICLE BY L. Robert Batterman, Michael Cardozo, Robert E. Freeman, Howard L. Ganz, Wayne D. Katz & Joseph M. Leccese of Proskauer Rose LLP
© 2015 Proskauer Rose LLP.