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Attorneys

Yoga and the Copyright Idea/Expression Dichotomy

October 23 2015

By: James Kachmar

Over the last half century there has been an explosion in the popularity of yoga in the United States, much of it attributable to Bikram Choudhury, the self-proclaimed “Yogi to the Stars.” In 1979, he published a book titled Bikram’s Beginning Yoga Class, which centered on a sequence of 26 yoga poses and two breathing exercises. Two former students of his started a new type of yoga (hot yoga) which resulted in Choudhury suing them for copyright infringement. On October 8, 2015, the Ninth Circuit issued its opinion affirming the trial court’s summary adjudication as to the copyright claim and finding that the Bikram yoga “sequence” was not subject to Copyright protection.

In 1971, Choudhury came to the U.S. and settled in Beverly Hills, California. With his arrival, he helped popularize yoga in the United States and developed a “sequence” of 26 asanas and two breathing exercises; Choudhury opened a yoga studio where he taught the “Sequence” and eventually published his book, Bikram’s Beginning Yoga Class. In 1979, he registered the book with the U.S. Copyright Office. (In 2002, he registered a compilation of exercises contained in the book using a supplementary registration form that referenced the 1979 book.)

In 1994, Choudhury introduced the “Bikram Yoga Teacher Training Course,” which was attended in the early 2000s by Mark Drost and Zefea Samson. Following their completion of the course, Drost and Samson founded Evolation Yoga, LLC, which offered several types of yoga, including “hot yoga” which was similar to Bikram’s basic yoga system. Evolation acknowledged that hot yoga includes 26 poses and two breathing exercises (like Bikram yoga) and is done for 90 minutes in a room heated to approximately 105 degrees Fahrenheit.

In July of 2011, Choudhury and his Bikram’s Yoga College filed suit claiming, among other things, that the hot yoga system of Evolation violated its copyright. Evolation moved for partial summary judgment as to the copyright infringement claim and the court granted the motion, ruling that the “Sequence is a collection of facts and ideas” which were not entitled to copyright protection. The plaintiffs appealed that decision to the Ninth Circuit.

In affirming the trial court’s decision, the Ninth Circuit found that at its most basic essence, “the Sequence is an idea, process or system designed to improve health.” Because copyright law is intended only to protect the expression of an idea, i.e., “the words and pictures used to describe the Sequence,” and not the idea of the Sequence itself, the Sequence was not subject to copyright protection.

The Ninth Circuit began by looking at the Copyright Act of 1976 to determine that the Sequence was an unprotectable idea. Section 102(b) of the Copyright Act “expressly excludes protection for `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.’” This section further codifies the “idea/expression dichotomy,” which means that “every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication.”

The Ninth Circuit recognized that the “idea/expression dichotomy” was premised on two constitutional foundations, the Copyright Clause and the First Amendment. As to the Copyright Clause, the constitutional command was that Congress, to the extent it enacts copyright laws, does so to create a system that “promotes the progress of science.” To further this aim, copyright protection “assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.” The idea/expression dichotomy helps strike this balance in protecting the interests of the copyright clause with First Amendment rights “by permitting free communication of facts while still protecting an author’s expression.”

As an example of the idea/expression dichotomy, the Ninth Circuit looked to an 1879 U.S. Supreme Court decision, Baker v. Selden. There, the court held that a book’s “expression of the book-keeping system was protected but the system of bookkeeping itself was not entitled to copyright protection.” The Ninth Circuit noted that following Baker, “courts have routinely held that the copyright for a work describing how to perform a process does not extend to the process itself.”

The Ninth Circuit concluded that this reasoning applied to Plaintiff’s “Sequence” as well in that it is “a `system’ or a `method’ designed to `systematically work every part of the body to give all internal organs, all the veins … everything they need to maintain optimum health and maximum function.’” The Ninth Circuit found it significant that an essential element of the system was the order by which the yoga poses and breathing exercise were structured. In fact, Plaintiff’s book specifically instructs users to do the exercises in strict conformance with the sequence. The Ninth Circuit concluded that Plaintiffs were essentially attempting “to secure copyright protection for a healing art: a system designed to yield physical benefits and a sense of well-being,” which was precluded by the copyright idea/expression dichotomy. The Ninth Circuit advised that protection of such a “method” or “process” could only come under the United States patent laws, not its copyright laws.

Plaintiff tried to argue that the “Sequence” was entitled to copyright protection because it was “particularly beautiful and graceful.” The Ninth Circuit rejected this argument, however, finding that “beauty” is not a basis for copyright protection. For instance, some might find certain mundane tasks such as a bookkeeper’s notations or the way a baker kneads dough to contain similar “beauty” but these processes would not otherwise be entitled to copyright protection.

Plaintiff next argued that the “Sequence” was entitled to copyright protection as a “compilation.” The Ninth Circuit noted that the Copyright Act allows compilations to be the subject of a copyright provided that it 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.” The Ninth Circuit concluded, however, that the Copyright Act’s language regarding the protection of a compilation must be read in conjunction with section 102 and concluded that “[t]hus, while a compilation may be eligible for copyright protection, it must nevertheless satisfy the requirements of section 102.” In other words, the Ninth Circuit held that a compilation must “represent an `original work of authorship’ and `in no case’ may copyright protection `extend to any idea, procedure, process or system.’” The Ninth Circuit again cited to older U.S. Supreme Court case law which held that while a telephone book may be copyrightable, the facts contained therein, i.e., addresses and phone numbers were not. The Ninth Circuit concluded that because the Sequence was “an idea, process or system” not entitled to copyright protection, the fact that it may consist of constituent parts does not transform it into a proper subject for copyright protection. The Court further rejected plaintiff’s argument that he had chosen 26 poses out of hundreds available finding that this still resulted in the creation of a “process” that was not subject to copyright protection.

Finally, Plaintiff argued that the “Sequence” was subject to copyright protection as a “choreographic” work. In 1976, Congress extended protection to “pantomimes and choreographic works” that had not been subject to copyright protection. The Ninth Circuit noted that neither it nor Congress had specifically defined what constituted a “choreographic work” but recognized that the legislative history does explain that it was not necessarily intended to protect “social dance steps and simple routines.” In the end, the Ninth Circuit concluded that it was not necessary to determine whether the Sequence was a choreographic work because even if it was, it was still subject to the “critical requirements and limitations of section 102.” It concluded that the Sequence was not copyrightable as a choreographic work for the same reason that it was not copyrightable as a compilation. That is, it was “an idea, process or system to which copyright protection may `in no case’ extend.” The Ninth Circuit cautioned that extending copyright protection to so called “choreographic” works raised the prospect that routine daily activities such as brushing ones teeth or pushing a lawn mower could be subject to copyright protection if one was to describe them “in a tangible medium of expression and labeling them choreographic works.”

The Ninth Circuit’s decision in this yoga case is a reminder that while the manner in which an author expresses the concept of a process or idea may be subject to copyright projection, such protection does not extend to the idea or process itself. Lawyers advising clients in such matters would be wise to explore whether the United States patent laws may provide protection in this area where copyright law does not.