Stretching Copyright Law Too Far: A Sequence of Yoga Poses Are Not Copyrightable
A recent case decided by the Ninth Circuit Court of Appeals, which is the federal appellate court for Arizona and California, has made a predictable determination that a sequence of yoga moves cannot be protected as intellectual property.
Earlier this month, the Ninth Circuit ruled that a series of yoga poses and breathing exercises are not entitled to copyright protection. The case, Bikram Yoga College of India v. Evolution Yoga, LLC, 2015 WL 5845415, (9th Cir. Oct. 8, 2015) centered on a "Sequence" or series of poses and breathing exercises embedded in the practice of what is widely referred to as Bikram yoga. Bikram yoga – which was founded by Yogi Bikram Choudhury in the 1970s – consists of 26 yoga poses ("asanas") and two breathing exercises ("pranayama") that are performed in a room heated to 105 degrees Fahrenheit over the course of a ninety- minute session.
Bikram has been diligent in protecting his intellectual property rights. He took the important step of federally registering his trademark, BIKRAM YOGA and polices his trademark so that yoga studios do not use his trademark without proper licensing. Unlike Joseph Pilates, who permitted his popular name to become generic, BIKRAM YOGA remains a source identifier. Other studios, hoping to capitalize on his success, have offered "hot yoga." Bikram, however, has not approved of those studios following the exact same sequence of poses as his studios offer.
In 1979, Bikram authored the book Bikram's Beginning Yoga Class, which included descriptions, photographs, and drawings of the Sequence's poses and breathing exercises. That same year he registered the book with the U.S. Copyright Office.
The poses in Bikram's book are over 5,000 years old and would not be protectable as intellectual property even if Bikram had created them. However, Bikram did create the particular arrangement or Sequence of the poses. In 2002, Bikram registered his Sequence as an original work of authorship with U.S. Copyright Office. He held this copyright until 2012 when the U.S. Copyright Office released a 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.77 Fed. Reg. 37605 (June 22, 2012).
Bikram disagreed with that determination and threatened lawsuits against studios that taught the Sequence. Most Yogis acquiesced and agreed to licenses. However, one couple, Mark Drost and Zefea Samson, stood up to Guru and were sued for teaching hot yoga at their Florida based studio, Evolution Yoga, LLC. Evolution acknowledged that the hot yoga they taught was nearly identical to Bikram Yoga, but argued that copyright protection extended only to books containing Bikram's instructions, not to the routine itself. Bikram argued that the Sequence should be protected as a compilation and as choreography.
The Ninth Circuit sided with Evolution and rested its holding on a classic feature of copyright law: You can't protect an idea, but you can protect the expression of that idea. The Court stated that Bikram's Sequence was an idea, process, or system designed to improve health. Since copyright law only protect the expression of ideas – for example, the words and pictures used to describe the Sequence – the Sequence itself is not protectable and ineligible for copyright protection as a "compilation" or "choreographic work." In simplest terms this meant that Bikram has copyright protection over his books and DVDs and other expressions of his work, but not the exercises themselves, or even the sequence of the exercises. A copyright on the yoga sequence would be akin to giving a surgeon the exclusive right to perform a complicated surgery, the court said. Only patents can protect processes and procedures.
The distinction between ideas articulated in a work and embodiment of those ideas in expression is nothing new in copyright law. Long ago in Baker v. Selden, 101 U.S. 99 (1879), the Supreme Court held that a book, which elaborated a system of bookkeeping through the use of blank forms, was not entitled to copyright protection since the bookkeeping system itself was an idea. However, the book's description of the bookkeeping system would be entitled to copyright protection. The idea/expression distinction was later codified in the 1976 Copyright Act as 17 U.S.C.A. § 102(b), which states "[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." Accordingly, the theft of another's ideas does not necessarily involve copyright infringement provided that the theft of the expression of those ideas is not implicated.
Although an abundance of case law and statutes discuss the differences between ideas and expressions, the terms have never been specifically defined. This has led to a court cases that are decided on the particular facts of the copyrighted work and the alleged infringement. For example, recipes contained in a copyrighted cookbook are usually not entitled to copyright protection.Publications International, Ltd. v. Meredith Corp., 88 F.3d 473 (7th Cir. 1996). Meditation exercises described in a copyrighted manual on exploring the consciousness were "process" not entitled to copyright protection. Palmer v. Braun, 287 F.3d 1325 (11th Cir. 2002). Most team sports activities, are not copyrightable because they are unscripted and do not involve a fixed routine of motions.National Basketball Association and NBA Prop., Inc. v. Motorola, Inc., 105 F.3d 841, 846 (2d Cir. 1997).
While the decision is not at all surprising, it is a good illustration of the boundaries of copyright protection. Patent and copyright are not interchangeable, and each has its purpose and place. As the Court noted, the Sequence, if entitled to protection at all, would more likely be sought through the patent process. Ideas and inventions are the subject matter for patents, while the expression of ideas is governed by copyright law. Authors and creators of original work need to be careful that they know which sandbox they are playing in and register accordingly.
About the Author: Maria Crimi Speth is a shareholder and intellectual property attorney at the Phoenix law firm of Jaburg Wilk. She is the department head of the intellectual property group and has expertise in copyright law, trademark law, and Internet law. She focuses on litigation involving intellectual property rights and First Amendment rights. Ms. Speth is the author of the book, Protect Your Writings: A Legal Guide for Authors.