Bikram Yoga Copyright Redux, Part 2
In Part 2 of my series on the Bikram yoga copyright controversy, I analyze the district court opinions in the OSYU and Evolation cases, and then compare and contrast the two.
Basis for Bikram’s Copyright Claims in the Yoga Sequence
But first it is worth noting the basis for Bikram’s copyright claims in his yoga asana sequence. In 2002 Bikram’s lawyers filed a §408(d) supplementary registration to the original copyright for his 1979 book Bikram’s Beginning Yoga Class. A supplementary registration is meant to “correct an error in a copyright registration or to amplify the information given in a registration.” Bikram took this step after registration for the sequence as a stand-alone choreographic work was denied by the U.S. Copyright Office. The supplementary registration added to the “nature of authorship” section the phrase “compilation of exercises.” It is the addition of this phrase that essentially led to more than a decade of litigation.
Open Source Yoga Unity v Bikram Choudhury, 2005 WL 756558 (N.D.Cal. 2005)
OSYU (“Open Source Yoga Unity”) was a collective of yoga studios opposed to Bikram’s claims of copyright protection for his yoga sequence. Previous to forming their non-profit, OSYU’s core members received cease and desist letters from Bikram for allegedly teaching his sequence without permission. In 2003, OSYU sued Bikram in a declaratory relief action filed in the Northern District of California. On summary judgment, OSYU sought determination that (1) Bikram’s claimed copyrights in his sequence and teaching manual were invalid, (2) that OSYU’s members did not infringe any of Bikram’s copyrights, (3) that Bikram’s yoga sequence was in the public domain because of a general publication under the 1909 Copyright Act, (4) Bikram engaged in copyright misuse, and (5) that trademarks for “Bikram Yoga” and variations were generic. Bikram moved for summary judgment on the same issues as well.
Regarding copyright invalidity, the court completely ignored OSYU’s strongest arguments, which were based on the merger doctrine and 17 U.S.C. §102(b). Instead, the court focused on the originality requirement and the scope of protection available for compilations of functional or uncopyrightable public domain material. The court mischaracterized OSYU’s functionality argument by saying:
While OSYU admits that Choudhury has creatively selected and arranged individual unprotected functional asanas into the Bikram yoga sequence, it argues that the Bikram yoga sequence nonetheless cannot be copyrighted because the practice of yoga and the individual asanas cannot be considered creative expression but are instead merely uncopyrightable functional physical movements. Order Denying Plaintiff’s Motions for Summary Judgment at p. 5.
However, OSYU not only attacked the functional nature of the individual asanas, but also the functional nature of Bikram’s compilation of the sequence’s constituent elements:
In fact, compilations driven by “utilitarian, functional or mechanical purposes” are not protected by copyright law. Entm’t Research Group v. Genesis Creative Group, 122 F.3d 1211, 1222 (9th Cir. 1997). A good example is recipes, compilations of ingredients, which lack sufficient originality to be copyrightable because both selection of the component parts— different food items—and their arrangement are “dictated by functional considerations.” 1 Nimmer on Copyright § 2.18[I]…OSYU Reply Brief at p. 12.
Despite these clear citations to relevant law on the lack of originality in functional compilations, the court made no effort to address these arguments, claiming that “…OSYU has provided no persuasive authority that a compilation of yoga asanas cannot be protected under the copyright laws in the same manner as other compilations.” Ultimately, the court found a “dispute of fact” and denied both parties’ motions on copyrightability of the sequence:
Choudhury claims that he arranged the asanas in a manner that was both aesthetically pleasing and in a way that he believes is best designed to improve the practitioner’s health. At a minimum, this creates a dispute of fact on the issue of whether sufficient creativity exists in the Bikram yoga routine so that copyright protection attaches, and thus summary judgment on both copyright validity and copyright invalidity must be denied. Order at p. 6. (Also see Bikram’s declaration at para. 15 p. 5).
Bikram’s Yoga College of India v. Evolation Yoga, LLC, 2012 WL 6548505 (2012)
While the OSYU court practically admitted it was in over its head when it said “the court readily acknowledges that this is a very unusual case,” the Evolation court wasted no time honing in on the key arguments: (1) Bikram’s copyrights cover only the expression of facts and ideas contained in his works, not the facts and ideas themselves (the “idea/expression dichotomy”), and (2) that the sequence is a method or system precluded from copyright protection under 17 U.S.C §102(b).
The court dealt first with Bikram’s claim that the supplementary registration extended protection to the sequence:
Plaintiffs contend that the Supplemental Registration…is a registration for the Sequence…This is not true. This registration is for a supplement to the 1979 copyright for Choudhury’s book, adding the notation that Choudhury is the author of a “compilation of exercises.” In other words, the supplemental registration clarifies that Choudhury’s contribution includes the Sequence; not that the registration was for the Sequence itself. Evolation Order at p. 4.
Regarding the applicability of the idea/expression dichotomy, the court said “the Sequence is a collection of facts and ideas. 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.” Evolation Order at p. 5.
The salient portion of the court’s analysis determined that the sequence was not copyrightable subject matter. First, the court noted that a sequence of yoga asanas does not fall under any of the delineated categories of protectable works under 17 U.S.C. §102(a). Next, the court labeled the sequence as “merely a procedure or system of exercises” and thus uncopyrightable subject matter under §102(b), noting that “Choudhury admits that the Sequence helps to prevent, cure, and alleviate disease.” Evolation Order at pp. 5-6.
In what could be described as a “Hail Mary,” Bikram argued in vain that the sequence was a choreographic work, despite the fact that his 2002 attempt to register it as a performing arts work was immediately denied by the Copyright Office. The court cited legislative history regarding the copyrightability of choreography to dismiss this argument, stating “the Sequence…hardly seems to fall within the definition of a pantomime or a choreographic work because of the simplicity of the Sequence and the fact that it is not a dramatic performance.” Evolation Order at p. 6.
The court also cited extensively an interesting “Statement of Policy” from the Copyright Office that was directed squarely at the Bikram yoga copyright controversy. The release of the Statement on June 22, 2012 was also timely, given that the Evolation parties were most likely gearing up for summary judgment and the court issued its ruling nearly six months later (December 14, 2012). Bikram predictably argued that little deference should be given to the Statement, but the court rebuffed that assertion by noting:
The Supreme Court has long recognized that “considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations.” Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). And other courts have generally given weight to the interpretation of a statute by the Copyright Office. Cablevision Sys. Dev. Co. v. Motion Picture Ass’n of Am., Inc., 836 F.2d 599, 609 (D.C. Cir. 1988). Evolation Order at fn. 5 p. 6.
Comparing and Contrasting OSYU and Evolation
There are a few interesting points to be made when looking at the OSYU and Evolation opinions side by side. First, both courts failed to even mention the seminal case Baker v. Selden, 101 U.S. 99 (1879), which said famously “the description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself.” The applicability of Baker v. Selden to the Bikram yoga sequence seemed readily apparent to me as an LLM student in 2004, to my faculty mentor, and to at least one other esteemed copyright commentator. The Evolation court can be excused because the origins of §102(b) can be traced back to Baker. However, the OSYU court’s failure to even mention this most foundational (and applicable) case that was persuasively argued by the plaintiffs (see OSYU Motion at pp. 8-12) was inexcusable.
Conversely, where the OSYU court failed to discuss §102(b) and focused almost exclusively on originality in compilations, the Evolation court did not address this issue in its analysis. However, the omission was at least noted (“For this Motion, the Court assumes that Choudhury created the Sequence by modifying traditional yoga exercises and does not reach the issue of originality.” Evolation Order at fn. 3 p. 4).
Lastly, while I agree with the result in Evolation regarding the applicability of §102(b), I found the fact cited by the court to be lacking (“Choudhury admits that the Sequence helps to prevent, cure, and alleviate disease”). Whether this was an oversight by the court or the parties, ample facts regarding this issue existed from a variety of sources including complaints filed by Bikram in copyright litigation (for example, see paragraphs 8, 17, and 21-23 from the Evolation complaint) and the book on which Bikram’s copyright claim is based, Bikram’s Beginning Yoga Class. Here are three examples from the book where Bikram refers to the sequence using categories of works unprotectable under §102(b):
- Discovery: “I discovered and developed this scientific series…during years of research.” (p. xi).
- Method: “One million students at least been [sic] trained in this method.” (p. 36).
- System: “I can confidently say that my system of Hatha Yoga is capable of helping you avoid…the symptoms of almost any illness or injury.” (p. 201).
Next time, in Part 3 of the series, I will analyze the briefs now before the 9th Circuit Court of Appeals in the Evolation case.
Photo by Kennguru, CC BY 3.0 via Wikimedia Commons.
