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Howard Zaharoff Co-Chairing 2017 MCLE Annual IP Law Conference 05/11/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Events, Intellectual Property.
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HGZ Headshot Photo 2015 (M0846618xB1386)As in previous years, intellectual property attorney Howard Zaharoff will co-chair MCLE’s 20th Annual Intellectual Property Law Conference 2017. The conference will cover various intellectual property topics, including IP litigation, protecting designs, IP issues in software, and the Defense of Trade Secrets Act.

The conference will be held on June 20th, both in-person and available via live webcast.

Faith Kasparian Comments on Privacy & Data Security Implications of Burger King’s New Google-Triggering Ad 04/14/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Intellectual Property, Privacy and Data Security.
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FDK Headshot Photo 2015 (M0846572xB1386)Intellectual property attorney Faith Kasparian comments on the potential privacy and data security repercussions of Burger King’s new ad in Bloomberg’s article, “Burger King’s Google-Triggering Ad Invites Complaints, Scrutiny“. The article discusses Burger King’s recent ad controversy, after it prompted consumers’ Google Home devices to respond to the prompt “OK, Google. What is the Whopper burger?”.

Faith notes that:

It’s unreasonable for Google not to have appropriate mechanisms in place so that the device couldn’t be activated by a third party.

She also states that the FTC could have a claim against Google for the ad since consumers did not receive proper disclosures, and that Google could also take legal action against Burger King for “inappropriately leveraging that device”.

For more information on the legal implications of the ad, read Bloomberg’s article.

Why You Should Spend Dollars on Patent, Trademark Protection 04/11/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Intellectual Property.
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Sean D. Detweiler (SDD)In the article, “Why You Should Spend Dollars on Patent, Trademark Protection“, published on CFO.com, patent and trademark attorney Sean Detweiler discusses why it is important for companies to protect the thoughts they pay for through patent and trademark protection. According to Sean, failure to protect this information could lead to loss of company value and a narrowing of opportunities.

Most often, patents are the best form of protection for innovations implemented in your products or services. But if you take your time in pursuing them they may no longer be available to you.

For more information, read the full article on cfo.com or feel free to contact Sean directly.

List Mania: Top IP Developments of 2016 04/04/2017

Posted by Morse Barnes-Brown Pendleton in Computer Software & Hardware, Intellectual Property, Internet and E-Commerce, Privacy and Data Security, Telecommunications & Networking.
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wrs-headshot-photo-2016-m0980966xb1386While you may have been distracted by a tumultuous 2016, at MBBP we have been monitoring developments in intellectual property. We are happy to present, in no particular order, our list of the top IP developments of 2016, plus an Honorable Mention for 2017.

In the full article on our website, “List Mania: Top IP Developments of 2016“, Bill Schmidt covers the following developments:

  1. Patent Infringement Plaintiffs Get a “Halo”: Halo Electronics, Inc. v. Pulse Electronics, Inc. and Stryker Corp. v. Zimmer, Inc.
  2. A Light at the End of the Tunnel for Software Patents?: Enfish v. Microsoft Corp.
  3. High Octane Fee Shifting: Octane Fitness, LLC v. Icon health & Fitness, Inc.
  4. Limits on “Common Sense”: Arendi S.A.R.L. v. Apple
  5. Shhh… It’s a Secret: Defend Trade Secrets Act of 2016
  6. Designs, Damages, and Dinner Plates: Apple Inc. v. Samsung Electronics Co.
  7. Personal Information Expressway: EU-US Privacy Shield Framework
  8. In Defense of Abbott and Costello: TCA Television Corp. v. McCollum
  9. Thanks, but No Thanks: UK votes to exit the European Union
  10. Honorable Mention for 2017: CRISPR/Cas9

MBBP Attorneys Sean Detweiler and Bill Schmidt to be Panelists for Intellectual Property Event 02/28/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Intellectual Property.
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wrs-headshot-photo-2016-m0980966xb1386Sean D. Detweiler (SDD)

MBBP patent and trademark attorney Sean Detweiler and patent attorney Bill Schmidt are scheduled to be panelists for an upcoming event on March 23rd as they discuss “Intellectual Property: The Ins and Outs of Intellectual Property (IP)”. Sean and Bill will be answering questions as they relate to Intellectual Property, specifically patents, in order to save people time and money by answering general questions prior to a client contacting an attorney.

This event will take place on March 23rd from 2-4pm at TechSandbox, with the attorneys covering the basics of IP and patents, and a Q&A session to follow. In addition, attendees with further questions will each have the special opportunity of a one-on-one session with one of the attorneys.

This is a very special event you don’t want to miss! View the event page for more information.

Howard Zaharoff Highlights 2016 Copyright Legislative and Regulatory Developments 02/16/2017

Posted by Morse Barnes-Brown Pendleton in Attorney News, Intellectual Property.
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HGZ Headshot Photo 2015 (M0846618xB1386)While many are reflecting on the key copyright cases of 2016, Howard Zaharoff states the necessity of noting the important copyright legislative and regulatory developments that also took place. In his most recent article, Copyright Law: Legislative and Regulatory Developments, Howard discusses developments by the House Judiciary Committee, the Small Copyright Claims Tribunal, and the new procedure for registering designated agents under the DMCA, among others.

For an overview on these and other copyright developments, read the full article.

MBBP’s Howard Zaharoff Will Be a Panelist in Boston Bar’s 17th Annual Intellectual Property Year in Review 12/19/2016

Posted by Morse Barnes-Brown Pendleton in Attorney News, Events, Intellectual Property, MBBP news.
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MBBP’s Howard Zaharoff will be a panelist at this year’s Boston Bar Association Intellectual Property Year in Review, one of Boston’s premier annual IP events. Howard will be discussing some of the most important copyright developments of the HGZ Headshot Photo 2015 (M0846618xB1386)past year, with his co-presenter, Attorney Lucy Lovrien.

This annual panel has been organized for intellectual property specialists to discuss the latest developments with practitioners in the field. Howard and his fellow panelists will discuss patents, copyrights, trademarks, and trade secrets, and the event will close with a networking opportunity for all attendees.

The event is scheduled for Thursday, January 26th, 2017 from 3:00 PM to 6:00 PM at the Boston Marriott Long Wharf. See the event details for more information.

Privacy & Data Security Video: Privacy in M&A Transactions 09/19/2016

Posted by Morse Barnes-Brown Pendleton in Attorney News, Intellectual Property, Privacy and Data Security.
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In our second Privacy & Data Security video clip, MBBP Attorney Faith Kasparian discusses key privacy and data security issues that companies must consider when participating in an acquisition.

Make sure to subscribe to our YouTube channel and to check out our Privacy & Data Security playlist for related videos.

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Interview with MBBP Client Valeritas Included in Wall Street Transcript Medical Devices Report 08/09/2016

Posted by Morse Barnes-Brown Pendleton in Client News, Intellectual Property, Life Sciences, Medical Devices.
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The most recent Wall Street Transcript Medical Devices Report includes an interview with Valeritas, Inc.’s CEO, John Timberlake.  Timberlake discusses in detail Valeritas’s V-Go Disposable Insulin Delivery Device. The V-Go is a wearable basal-bolus insulin delivery device that allows patients to deliver insulin at a continuous preset basal rate, with bolus delivery as needed.  The V-Go has been cleared for use in the United States and in Europe.  big valThe fact that V-Go is a wearable product with scheduled insulin delivery enables patients to more easily go about their daily routines without having to stop to deliver insulin, and also allows them to discreetly deliver insulin during mealtimes without drawing attention to the act.

Valeritas is a commercial-stage medical technology company that develops new Type II diabetes technology products aimed at improving the lives of patients with Type II diabetes.  For more information about Valeritas and its V-Go product, read the full interview with The Wall Street Transcript.

Managing Partner Lisa Warren Moderating Entrepreneur’s University: Acquiring IP 07/06/2016

Posted by Morse Barnes-Brown Pendleton in Attorney News, Events.
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LMW Headshot Photo 2015 (M0846622xB1386)Lisa Warren will be serving as a Co-Moderator for the upcoming, “Entrepreneur’s University: Acquiring IP” program organized by MassBio Entrepreneur’s University Working Group. Entrepreneur University hosts forums to help entrepreneurs thrive in today’s competitive biotech environment.  During this program specifically, industry experts will share critical advice for entrepreneurs who are setting out to acquire their intellectual property.

The key topics that will be discussed include:

  • Traditional routes of IP acquisition – including licensing from a university, e.g. the employer of a scientific founder
  • Licensing arrangements – often the first contractual relationships into which the emerging biotech company enters
  • How universities have changed their approaches to technology transfer and licensing terms in recent years – including an increased focus on revenue, especially in light of declining government research funding
  • Alternatives to university deals – for example, some companies have succeeded in “rescuing” assets from big pharma through in-licensing assets that have been shelved
  • Generating an IP portfolio – when, what and how entrepreneurs, scientists and biotech leaders should manage this important part of their IP expansion strategy

The program will take place the morning of July 13th. MassBio members can register here.

 

Register Now! Laying the Firm Foundation for Growth: Entity & Equity – Life Sciences Series – Panel 2 05/31/2016

Posted by Morse Barnes-Brown Pendleton in Attorney News, Client News, Events, Intellectual Property, Life Sciences, MBBP news.
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Join us at our Waltham office on June 22nd for the second panel in our Life Sciences Series, Laying the Firm Foundation for Growth: Entity & Equity.  JMH Headshot Photo 2015 (M0846571xB1386)

Our expert panel will discuss whether a corporation or a limited liability company is more suitable for building an emerging company, and how to maximize the equity compensation of your team with restricted stock, stock options, or profits interests.

MBBP Partner John Hession will moderate the panel, which will include Marc Cote, Chief Operating Officer of Accellient, and Jeff Solomon, Partner at Katz Nannis + Solomon.

The event will take place from 7-9:30am.  A light breakfast will be provided. Seating is limited – please register here.

Howard Zaharoff and Erin Bryan Speaking at 2016 Intellectual Property Law Conference 05/19/2016

Posted by Morse Barnes-Brown Pendleton in Attorney News, Events, Intellectual Property, Litigation, MBBP news.
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EEB Headshot Photo 2015 (M0846503xB1386)IP and Technology Licensing Attorney Howard ZaharoffIntellectual Property Law 2016: The 19th Annual New England Conference will take place on June 23rd at the MCLE Conference Center in Boston, MA. This conference will focus on new developments, trends, and industry-specific guidance that IP, business, and litigation counsel must know. MBBP attorneys Howard Zaharoff and Erin Bryan are both on the Faculty, with Howard also serving as a Co-chair. Erin will be presenting at the conference on the topic of IP issues in 3D printing and bioprinting.

The conference will also be available by both live and recorded webcast.

Defend Trade Secrets Act of 2016 Signed 05/11/2016

Posted by Morse Barnes-Brown Pendleton in Employment, Intellectual Property.
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By: Sandra E. Kahn

Today President Obama signed into law the Defend Trade Secrets Act of 2016 (DTSA), which creates a new federal civil cause of action for trade secret theft. While claims for trade secret theft may still be brought under the various state laws which protect intellectual property, this new law will provide uniform protection on the federal level. The DTSA also provides protection for whistleblowers, granting immunity to parties who disclose a trade secret to the government or an attorney to report wrongdoing, or as part of an anti-retaliation lawsuit. Of particular interest is the requirement that employers must now provide a notice of this immunity protection in any contract or agreement with an employee (or an independent contractor or consultant) that governs the use of a trade secret or other confidential information. To learn more about the DTSA, click here.

MBBP Partner Joseph Martinez Participating in MIT Enterprise Forum’s Spring Start Smart Class 05/11/2016

Posted by Morse Barnes-Brown Pendleton in Attorney News, Client News, Corporate, Employment, Events, Financial Services, Intellectual Property, Licensing & Strategic Alliances, MBBP news.
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Corporate partner Joseph Martinez will take part in MIT Enterprise Forum’s (MITEF) Spring Start Smart Class, which will run from May 23-June 20.  M0846610He will appear as a Guest Speaker during the third class, which will focus on legal issues for startups.  Specifically, Martinez will discuss the employment, financing, and intellectual property legal issues facing startups.

MITEF’s Spring Start Smart Class is an eight session program focused on providing expertise to entrepreneurs on how to launch a successful new business.  The program is structured as a hands-on workshop, and features guest speakers whose fields of expertise correlate with each class’s specific topic of discussion.

For more information and to register for the course, see the full details here.MITEF-Full-Color-e1438717228333

New Federal Law Protects Trade Secrets But Also Requires Changes to Employee and Contractor Agreements 05/05/2016

Posted by Morse Barnes-Brown Pendleton in Client News, Employment, Intellectual Property, Licensing & Strategic Alliances, Privacy and Data Security, Public Companies.
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By: Sandra E. Kahn

It is expected that President Obama will soon sign into law the Defend Trade Secrets Act of 2016 (DTSA), which creates a new federal civil cause of action for trade secret theft.  While claims for trade secret theft may still be brought under the various state laws which protect intellectual property, this new law will provide uniform protection on the federal level.

The DTSA defines trade secrets consistently with the Uniform Trade Secrets Act (UTSA), and applies broadly to any trade secrets “related to a product or service used in or intended for use in, interstate or foreign commerce.”  Along with the ability to bring a lawsuit to fight trade secret theft and pursue equitable remedies and the award of damages for the misappropriation of a trade secret, the DTSA also includes a provision for expedited relief on an ex parte basis to prevent the dissemination of misappropriated trade secrets, which may be obtained under “extraordinary circumstances.”

The DTSA also provides protection for whistleblowers, granting immunity to  parties who, under certain circumstances, disclose a trade secret to the government or an attorney to report wrongdoing, or as part of an anti-retaliation lawsuit.  Of particular interest to our clients is the requirement that employers must now provide a notice of this immunity protection in any contract or agreement with an employee (or an independent contractor or consultant) that governs the use of a trade secret or other confidential information.    If this notice is not included in all contracts which are signed or revised after the effective date of the act, the employer will not be able to recover exemplary damages and attorneys’ fees under the DTSA (although the employer may still pursue any available damages under other causes of action).  Employers are advised to consult with their counsel to revise all agreements with employees and contractors in order not to run afoul of this requirement.

The DTSA, by itself, may not be used to prevent a departed employee from entering into a new employment relationship with a competitor, and provides that any conditions placed on such employment must be based on “evidence of threatened misappropriation and not merely on the information the person knows,” in effect rejecting the doctrine of inevitable disclosure.

5/4/16 – Life Sciences Series Panel 1: Business and IP Strategy 04/21/2016

Posted by Morse Barnes-Brown Pendleton in Events, Intellectual Property, Life Sciences, MBBP news.
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reg now buttonJoin us at MBBP‘s Waltham office on Wednesday, May 4th at 7:00am for a look at Building Your Product & Patent Strategy from the Ground Floor. This is the first of four events in the 2016 Life Science Panel Series.

This lively panel of experts will discuss how to structure a well-crafted intellectual property portfolio. They have all built and analyzed multiple portfolios and will share their experiences on the do’s and don’ts in both organically growing an IP portfolio and in-licensing key properties.

Panelists include:

  • William Edelman Social Entrepreneur and C-Level Executive, Paragonix Technologies, NewVert, VitaThreads, Flexicath, First Light Biosciences
  • Molly Hoult Vice President, Fletcher Spaght Ventures
  • Michael McDonald, Ph.D. Director of Intellectual Property, bluebird bio

Seating is limited. Register today!

Mark Tarallo Teaching at IP & Entrepreneurship Clinic 03/30/2016

Posted by Morse Barnes-Brown Pendleton in Attorney News, Events, MBBP news.
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Attorney Mark Tarallo will teach at the Intellectual Property & Entrepreneurship Clinic of Suffolk Law School tomorrow on the subject of Choice of Entity.

Key topics that will be discussed:

  • Choice of Entity in Formations
  • Issues to Consider When Choosing an Entity
  • Equity Compensation Plans for Different Entities

Survey Says: Top NINE Intellectual Property Developments of 2015 03/04/2016

Posted by Morse Barnes-Brown Pendleton in Computer Software & Hardware, Intellectual Property, Licensing & Strategic Alliances, Life Sciences, Privacy and Data Security, Publishing & Media.
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happy-birthdayBy: Callie L. Pioli

2015 was another busy year in terms of intellectual property law, but luckily, MBBP has been carefully monitoring all of the important developments. There were many contenders for spots in our list, but only a select few could make the cut.

Get a recap on 2015 (and prepare for success in 2016) by reading our list.

We cover:

  1. Happy Birthday to All! – Marya v. Warner/Chappell Music, Inc.
  2. Google Books (Authors Guild v. Google, Inc.)
  3. Disparagement versus Free Speech: In re Tam
  4. Issue Preclusion & The TTAB: B&B Hardware, Inc. v. Hargis Indus., Inc.
  5. Patient Infringement Liability: Akamai Techs., Inc. v. Limelight Networks, Inc.
  6. Biosimilarity: Amgen v. Sandoz
  7. ­Patentability of Natural Phenomena: Ariosa Diagnostics, Inc. v. Sequenom, Inc.
  8. Computer Fraud & Abuse Act
  9. Safe Harbor Down, EU-US Privacy Shield Up

 

The Contours of Copyright #3: Too Short for Copyright? 01/04/2016

Posted by Morse Barnes-Brown Pendleton in Attorney News, Intellectual Property, Licensing & Strategic Alliances, New Resources, Publishing & Media.
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M0846618It is axiomatic that copyrights do not protect words or short phrases. But how short is too short for copyright? 10 words? 5 words? 3 words? Consider Henny Youngman’s classic 4-word joke, “Take my wife … please.” Is that a copyrightable jocular expression, or an uncopyrightable short phrase (or, for you copyright pros, a merged idea)? The answer is important, not only to comedians, but also to epigrammatists, songwriters, poets … and anyone who wishes to include, in a work they are creating, word sequences they’ve seen used by another.

A recent case, William L. Roberts v. Stefan Kendal Gordy (U.S D.C., S.D. Florida 2015), provides helpful guidance, though not a definitive answer.

Discussion: The plaintiffs, Roberts et al., owned the musical composition Hustlin’, whose chorus consists of the repeated refrain “everyday I’m hustling.” The defendants, Gordy et al., had a hit song, Party Rock Anthem, which included the phrase “everyday I’m shuffling.” When the defendants began marketing their “shuffling” phrase on T-shirts and other merchandise, the plaintiffs sued, arguing that their copyright in the song included a copyright in the “hustlin’” refrain, and therefore they could prevent anyone from copying that refrain, whether in a similar song or standing alone on a garment.

The defendants disagreed, and the court sided with them. Yes, said the court, the plaintiff’s song was entitled to copyright protection. However, “copyright protection does not automatically extend to every component of a copyrighted work.” Rather, because “originality” is the sine qua non of copyright, and short phrases are common and unoriginal, the copyright in a work does not extend to individual short phrases (or, of course, single words) in the work. This doesn’t mean, the court explained, that the presence of “ordinary” phrases deprives a work of copyright protection; but it also doesn’t mean that the copyright umbrella shelters every word or phrase contained in a copyrighted work.

Or, as the court puts it: “The question presented … is not whether the lyrics of Hustlin’, as arranged in their entirety, are subject to copyright protection. The question is whether the use of a three-word phrase appearing in the musical composition, divorced from the accompanying music, modified, and subsequently printed on merchandise, constitutes an infringement of the musical composition Hustlin’. The answer, quite simply, is that it does not.”

To add insult to injury, the court also notes that the terms “hustling” and “hustlin’” were used in many earlier songs, and that the plaintiffs never asserted that the phrase “everyday I’m hustlin’” originated with them – which in itself could have killed their copyright claim (to be copyrightable, a work needn’t be novel, as in the patent sense of never before appearing anywhere, but does need to be original, in the copyright sense of having composed it oneself without copying from another). Finally, says the court, there is no substantial similarity between the original musical composition, containing the (uncopyrightable) phrase “everyday I’m hustlin’,” and the defendant’s T-shirts, containing the (uncopyrightable) phrase “everyday I’m shuffling.”  In short, none of the plaintiff’s original expression was infringed by the defendant’s apparel.

An Interlude for Copyright Aficionados: There was nothing earthshaking about this decision, though it is interesting to read the court’s sampling of many short phrases that failed to win copyright protection, including: “so high” (2 words), “get it poppin’” (3 words), “fire in the hole” (4 words – uh-oh, Henny), “most personal sort of deodorant” (5 words), and “You Got the Right One, Uh-Huh” (5 words, plus an “Uh-Huh”). So, one might conclude, a half dozen words or more are probably the minimum required for copyrightability.

Perhaps the reason this court – and no court I’m aware of – has stated a bottom line number below which copyright cannot apply is that no one can be absolutely certain that a creative author couldn’t be original in even a handful of words. Let’s cheat, make up a word, and stick it in a short phrase: “She’s my joyzilla mama.” Four words – really 3 plus a mashup – which have never appeared before (a Google search more or less confirmed this).  Can I use copyright law to prevent another person from using my original phrase in a song or on a T-shirt?

My answer is a definite “maybe.” The epigrammatist Ashley Brilliant has successfully registered – and once successfully asserted – copyrights in his epigrams, many of which are quite short (such as, “When all else fails … Eat” = 5 words). Poets and songwriters often feel that their short but creative phrasings are worthy of protection. So maybe we can’t state an absolute bottom line because we can’t guaranty that a brilliant writer or composer won’t dash our assumptions.

Conclusion. Still, it’s hard to imagine anyone successfully claiming copyright in any 2- or even 3-word (real words, not coined) phrase – if for no other reason than given the relatively small number of meaningful 2- and 3-word phrases, and the exhaustive output of English speakers, each of those short phrases would have already appeared so frequently that no one using such a phrase could convincingly assert it originated with them, or that they should have the right to keep anyone else from using it.

So, unlike Roger Bannister running a mile under 4 minutes, the possibility of someone writing a copyrightable phrase of under 4 words (probably 5, possibly 6) should stand the test of time.

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

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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