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The Contours of Copyright #2: Can You Copyright Yoga Poses? 11/06/2015

Posted by Morse Barnes-Brown Pendleton in Intellectual Property, Legal Developments, New Resources.
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Attorney Howard ZaharoffBy Howard Zaharoff

Section 102 of the Copyright Act tells us that “choreographic works” – i.e., dances – are protected by copyright. So if you’re Alvin Ailey or Saroj Khan, the copyright police will protect you if someone copies or publicly performs your original choreography.

But what if you’re Beto Perez, who created Zumba; or Arnold Schwarzenegger (governor, actor, bodybuilder), who developed his own workout routines; or Bikram Choudhury (yoga guru and plaintiff), who in 1979 published a book describing his “Sequence,” 26 asanas and two breathing exercises performed for 90 minutes in a room heated to 105 °F? Does copyright protect original workouts or yoga sequences?

Probably not. At least according to the 9th Circuit in the recent case, Bikram’s Yoga College v. Evolation Yoga.

Discussion: Bikram Choudhury, self-proclaimed “Yogi to the stars,” was important in popularizing yoga in the U.S. He claimed he developed his Sequence after many years of research and verification, and he touted its many health and fitness benefits. But when two students who attended his 3-month teacher training started their own studio, offering a “hot yoga” class very similar to his Sequence, he sued for infringement.

The district court ruled that the Sequence was a “collection of facts and ideas” not entitled to copyright protection. Choudhury appealed and the Circuit Court upheld the lower court’s finding.

The Court first reasoned that the Sequence is “an idea, process or system designed to improve health” (Choudhury himself described his Sequence as a “system” or “method” designed to “systematically work every part of the body”). Since Section 102 of the Copyright Act is clear that copyright does not protect any idea, process or system, the Court easily concluded that the Sequence was an unprotectable idea or system. Put differently: “Choudhury thus attempts to secure copyright protection for a healing art,” an obvious no-no.

Nor does the grace and beauty embodied in the Sequence matter, since many processes can be beautiful –a surgeon’s movements, a baker’s kneading – without being copyrightable. In other words, “beauty is not a basis for copyright protection.”

The Court similarly dispensed with Choudhury’s argument that, even if individual yoga poses cannot be copyrighted, the original sequence of poses he developed is copyrightable as a “compilation,” that is, a work formed by “the collection and assembling of preexisting materials.” Not so, said the Court: because Choudhury himself claimed that “the medical and functional considerations at the heart of the Sequence compel the very selection and arrangement of poses and breathing exercises,” the entire Sequence, no less than the individual poses, is itself a process and “therefore ineligible for copyright protection.”

The final – and, as discussed below, least satisfying – part of the Court’s holding is that the Sequence cannot be protected as a “choreographic work.” The Court acknowledged that this term isn’t defined in the Copyright Act (though the legislative history makes clear that the term excludes “social dance steps and simple routines”). But that doesn’t matter, says the Court: “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 not extend.

The Court also noted that daily life consists of “many routinized physical movements, from brushing one’s teeth to pushing a lawnmower,” which could be characterized as forms of dance (by whom, the Court does not say). Only the idea/expression dichotomy prevents people from obtaining “monopoly rights over these functional physical sequences.” So at least in the 9thCircuit, arrangements of physical movements with a functional purpose, such as improving one’s health or fitness, no matter how aesthetic or beautiful, are merely unprotectable ideas or processes and therefore cannot be claimed as anyone’s copyright.

An Interlude for Copyright Aficionados: The Court’s final argument – that compilations of physical movements that “serve basic functional purposes” are unprotectable ideas/processes and not protectable choreography – begs the question. It’s cheating for a court to simply declare that a sequence of physical movements that functions as a means to health and fitness is thereby an uncopyrightable process without explaining why other sequenced movements that have similar fitness benefits are copyrightable choreography (which is surely true of the athletic choreographic routines of Alvin Ailey and Pilobulus).

Is it the functional purpose (or effect) of Choudhury’s sequence of poses – i.e., that despite their grace and beauty, they are particularly conducive to fitness – which makes the Sequence an uncopyrightable process? Why? Rarely does the functionality of a work completely deprive it of copyright. Even the designers of “useful articles” can claim copyright in any “pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects.” If functionality were a copyright killer, architecture and software would have no protection.

Indeed, why not treat physical movements like architecture and software? Just as copyright law provides no protection for “individual standard features” of architectural works, or for standard routines and features of software applications, can’t we conclude that, although individual poses (or short sequences of poses) that are included in the Sequence and that are unoriginal, standard, or highly effective for fitness cannot be monopolized by copyright, the original overall selection and order of the poses can be deemed sufficiently original and aesthetic to qualify as copyrightable choreography?

In short, nothing in the Court’s opinion explains why the entire 28-step Sequence was ruled an unprotectable idea and no aspect or feature of these graceful movements could be deemed choreographic and copyrightable. This is not to say the Court is wrong. Rather, right or wrong, the Court failed to articulate any principles that distinguish movements constituting “a healing art” from movements constituting athletic dance.

Conclusion: Despite its unfortunate failure to provide a principled distinction between copyrightable choreography and uncopyrightable workouts, it remains undeniable that, in the 9th Circuit at least, there is no copyright protection for sequences of yoga poses intended to improve health and fitness, no matter how graceful or beautiful they may be.

Still, given the gaping hole left by this decision, and the popularity of fitness and yoga, it’s hard to imagine that the issue of copyrightable choreography won’t reappear soon. Or, as Arnold Schwarzenegger (as actor, not bodybuilder) might say: “I’ll be back.”

For more information on this topic, please contact Howard Zaharoff.

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