No Need to Bend Over Backwards: Court Rules Yoga Poses Are Not Copyrightable

Stephen Carlisle October 15, 2015

Bikram Choudhury is the developer of the very popular “hot yoga” system, where a carefully selected series of 26 yoga positions is performed for 90 minutes in a room heated to 105 degrees. ¹ The success of the system has made him very wealthy, and litigious. ²

For over thirty years he has claimed that he, and only he can teach the method, or decide who else can teach his method. ³ Backed by the copyright of his 1979 book, he has threatened competing yoga studies with litigation, and his website “asks people to report ‘illegal’ Bikram studios.” ⁴ Some studios fought back leading to a settlement with Bikram. ⁵ One studio has now “taken him to the mat,” so to speak, and the results are not good for Bikram.

Bikram sued Evolation Yoga, LLC, claiming that the competing studio infringed the copyright in Bikram’s books by “substantial use of Bikram’s Copyrighted Works in and as part of Defendants’ offering of yoga classes” ⁶ Evolation prevailed at trial, and Bikram appealed. The Ninth Circuit Court of Appeals affirmed the District Court ruling, holding that the 26 pose sequence was an uncopyrightable method or system.

In an earlier blog post dedicated to discussing claims for copyright in a recipe, ⁷ I recounted the provisions of Section 102(b) of the Copyright Act which states:

“In 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.”

As I have explained countless times to clients and students: it’s not what you said, it’s how you said it that gets the copyright. There’s no doubt that Bikram has a copyright in his book, but that copyright does not extend to the system explained in the book, as Section 102(b) very clearly states. Bikram’s legal position is most akin to saying “since I have a copyright in my recipe book, no one is allowed to make any of the dishes without my approval.” That’s not a winning argument.

Bikram’s case is further hamstrung by the fact that yoga is an ancient art, and all of the poses would have passed in the public domain years ago, ⁸ if they could be the subject of copyright at all. Which is precisely the ruling from the 9^th Circuit. ⁹

Bikram’s legal pleadings refer to “The Sequence” as “a ‘system’ or a ‘method’ designed to ‘systematically work every part of the body, to give all internal organs, all the veins, all the ligaments, and all the muscles everything they need to maintain optimum health and maximum function.’” This, of course, directly implicates the provisions of 102(b) that “The Sequence” is an uncopyrightable method or system.

Equally unavailing is his argument of how the poses and the special sequence were arrived at after “many years” of constant research and trial. ¹⁰ The Supreme Court over 20 years ago disposed of the “sweat of the brow” theory of copyright protection. ¹¹ “The primary goal of copyright is not to reward the labor of authors, but [t]o promote the Progress of Science and the useful Arts.” ¹²

Bikram’s argument (that almost works) is that the poses are a “compilation” and thus copyrightable. According to the Copyright Act, a compilation 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.” ¹³

So, while no one has a copyright on a fact, a collection of facts in a database are the proper subject of copyright. So, while Bikram does not have a copyright on any individual poses, he contends that his selection and arrangement are, as a unit, copyrightable. The problem with this argument is he cannot escape the fact that “The Sequence” is simply a method or system to achieve personal well-being. The defendants are not selling knock-off copies of his book, they are simply using the method described in the book. As the Court observes:

“The watchmaking treatise’s author could not claim a copyright in the process of making a watch, however, by breaking down the process into multiple steps and labeling it a ‘compilation.’” ¹⁴

Yet, by far, the most intriguing argument is that the “The Sequence” is in fact a “dance” and thus subject to copyright as a choreographic work.

Bikram’s first problem is that he never registered the poses as a dance. His book was registered as a “nondramatic literary work.” ¹⁵ He did try to register the poses as a “work of the performing arts” but his registration attempt was rejected by the Registrar of Copyrights. ¹⁶ This would seem to preclude his argument, since registration is a pre-requisite to filing an infringement action, ¹⁷ but the Court addresses it anyway.

The Court cites to the Copyright Office’s Compendium of Copyright Office Practices as the Copyright Act itself does not define either the term “dance” or “choreography.”

“The Compendium II defines ‘dance’ as ‘static and kinetic successions of bodily movement in certain rhythmic and spatial relationships.’ (citation omitted) The ‘dance movements,’ according to the Compendium II, ‘must be more than mere exercises, such as ‘jumping jacks’ or walking steps.’” ¹⁸

Bikram is already in trouble with this argument since it is clear that “The Sequence” is an exercise routine. But the Court takes the time to further bury the argument.

“We recognize that the Sequence may involve ‘static and kinetic successions of bodily movement in certain rhythmic and spatial relationships.’ (citation omitted) So too would a method to churn butter or drill for oil. That is no accident: ‘successions of bodily movement’ often serve basic functional purposes. Such movements do not become copyrightable as ‘choreographic works’ when they are part and parcel of a process. Even if the Sequence could fit within some colloquial definitions of dance or choreography, it remains a process ineligible for copyright protection.” ¹⁹

So, no need to bend over backwards to avoid copyright infringement, yoga all you want.