Bikram and Supplementary Registration

Supplementary registration is provided for in Section 408(d) of the Copyright Act. The Copyright Office has regulations in 37 CFR 201.5 and a Circular, No. 8 The purpose of a supplementary registration is to "correct" or "amplify" information on an original registration, hence the name of the form for it, CA (correct/amplify). It also follows from this purpose that there must be an original registration on file to correct or amplify. A few things must be borne in mind: a supplementary registration is issued a new registration number in the same class as the original registration, and doesn't expunge or modify the original: the supplementary registration merely"augments" the basic registration by placing new information on the public record (and it is therefore usually cross-referenced to the original record).

There isn't a new deposit requirement because the CA does not expand the existing registration but merely corrects or amplifies it . (The deposit requirement does come into play in one respect: because the deposit requirements are different for unpublished than for published works, a CA may be used where the original claim was for a published work but it is now considered unpublished, but not vice versa).

A CA may be used to correct errors in the basic registration made at the time of the original registration, like an authorship listing. Authorship issues may also be addressed in the amplification part of a CA to add a co-author who was left off, but not to reflect changes in ownership since the basic registration was made. For purposes of statutory damages and attorneys fees, the date of the original registration governs, a very important point for those who might be tempted to seek a new registration.

On Monday, August 22d I did a posting about a claim of copyright in a series of 26 yoga exercises by Bikram Choudhury. I noted there was a CA registration, that it stated "compilation of exercises," and that it was made to a 1979 basic registration for a book. The CA was submitted on December 3, 2002. The CA was preceeded by this: On October 23, 2002, registration on form PA was sought for "Bikram's Asana Sequence," with the nature of authorship described as "selection and arrangement." The cover letter asserted that the work was a "copyrightable performing arts work," and that special handling was sought in connection with a suit already brought in the Central District of California against the Morrisons. In a letter dated October 28, 2002, the Office questioned the application on various grounds, including the large gap in the alleged creation date of 1965 and the date of first publication of 1994.

There were apparently a number of telephone calls between Bikram's attorney and the Examining Division following the letter. In a letter dated dated November 27, 2002 from the Examining Division, Performing Arts section, to Bikram's attorney, the Office suggested filing a CA to the 1979 TX registration for the book to claim either "compilation of exercises" or "selection and arrangement of exercises." The Office noted that the CA would "augment but not supersede the previous registration." A fax dated the same day has what is to me an important clarification about the registration. A handwritten annotation from a Senior Examiner states: "I received your message about the gymnastic floor exercise. I believe I mis-spoke in our earlier conversation. We do not register such claims as choreography, but rather as a compilation of floor exercises." On December 5, 2002, the PA application was abandoned in favor of a CA along the lines suggested by the Office.

The effect of the CA was essentially nil: the claim in the book, which was for entire text, the broadest description, could hardly have been made broader. The only thing that the CA registration did was to note for the public record that entire text included a compilation of exercises. Among the things the registration did not do are the following, contained in a February 5, 2003 press release from Bikram's attorney: "the United States Copyright Office acknowledges Bikram's exclusive right to the distinct series of postures and breathing exercises comprising the sequence and Bikram's Beginning Yoga Class." The Copyright Office never "acknowledges" anyone's exclusive right to anything by registering it: the Office is one of record, and registers claims; it doesn't have the staff to determine whether the claim is true, a fraud, or based on an error. In this case, the Office merely said: "Hey, you registered a claim in 1979 for an entire book; you now want to state that some material already in the book is protected ." In fact, the handwritten notation from the Examiner emphatically stated no choreography claim could be made. As a result, Bikram has, in my opinion, no registered claim in the choreography of the asanas.

As importantly, the press release states that "Due to the originality of the sequence and the strength of the copyright registration, infringement of the sequence can occur in a number of ways." Those ways including "the unauthorized use of even a small number of consecutive postures" and the teaching of the sequence. The registration says nothing about infringement; no registration ever does; nor for the reasons given in the last blog would performance of the exact sequence of 26 asanas every constitute infringement. And we know from Feist that the scope of protection in compilations is thin, not as the press release suggests, obese.

In my opinion, the press release seriously misrepresents the registration and the law. To leave this posting with an amusing precedent, though, in Seltzer v. Sunbrock, 22 F. 621 (S.D. Cal. 1938), a chap registered a claim in a book about roll-skate racing. He then put on, implausibly, a month-long roll-skating event at which skaters traversed the equivalent of coast-to-coast. So many people bought tickets that a competing game was mounted. The owner of the book sued; the competitor didn't have access to the book and couldn't have copied it, and didn't in any event. Improvidently a TRO was earlier issued and then dissolved in this opinion once the judge woke up and smelled the coffee beans. Let's hope that happens in the yoga community.