Yoga and Copyright

The last posting, on choreography, mainly dealt with the lack of utilization of copyright by choreographers and others such as fine artists. One reason for choreographers' attitude toward copyright is that protection was very late in coming, and until 1978 quite limited. Of necessity, if not by design, alternatives had to be found.

Although choreography is of very ancient origin, the first registration was not until 1952. Even in 1952, there was not a separate enumeration in the statute for choreography (as there is now). Instead, choreography had to qualify as a species of dramatic composition in Section 5(d) of the 1909 Act; that meant the choreography had to tell a story. This requirement excluded a lot of what was then called "modern" dance. Fixation was also problematic and expensive since videotaping was not an option. (Tapes weren't an option for musical compositions either). The 1976 Act opened things up both by expanding choreography to include abstract choreography (by which I mean choreography that doesn't tell an overt story like Cinderella), and by permitting more flexible fixation, including videotaping. The same holds true for pantomime (protected for the first time in the 1976 Act). The Office has a fact letter on both.

But what about other scripted routines involving motion, like yoga? Until April 1, 2005, I would never have thought a court would entertain the possibility that one could acquire exclusive rights over the performance of yoga exercises. Leaving aside serious questions of origination, yoga routines are intended to bring about physical, mental, or emotional results and are, therefore, excluded by Section 102(b). Nor does a book about them convey any rights in the routines; that's been the law since Baker v. Selden, 101 U.S. 99 (1879), which rejected a claim by the author of a treatise on bookkeeping that a registration for the book gave him exclusive rights over the system of bookkeeping explained therein. Baker v. Selden is one of the foundations for Section 102(b).

So if everything is so clear, what happened? Bollywood met Hollywood and were married by ignorance, a lethal combination. Bikram Choudhury, a Calcutta native transplanted to LaLa Land, became a yoga teacher to the stars, through his Bikram "hot" yoga style, consisting of 26 yoga positions (asanas), and two breathing exercises, performed at a room temperature of about 105 degrees. We will assume arguendo he was the first to select these particular 26 positions. Importantly, he was quite insistent that they be performed strictly in order to achieve advertised physical and emotional benefits. Whether they did or not is irrelevant to me.

A book, "Bikram's Beginning Yoga Class" was written, and perhaps published before 1978, although that's unclear, at least to me, because the literary work registration (TX 179-160) states it was created in 1978 and first published on January 1, 1979 (most unlikely); the application was submitted on January 17, 1979. The claim of authorship was for "entire text."

Sometime in this new century, Bikram concluded, somehow, that he not only had a copyright in his selection of the 26 positions, but that this selection gave him the exclusive right to stop others from performing them in that order. That's baloney, as Baker v. Selden shows. And his registration was, as in Baker, on a literary work form and for "text," not choreography or any form of performing arts work (PA). That didn't stop him though from suing and threatening to sue, and making what were, in my opinion wildly extravagant and erroneous claims about the extent of this copyright.

On October 24, 2002, he filed a supplementary registration to the 1979 one, TX 5-624-003, listing amplified information of "compilation of exercises." There was correspondence over this that I am dying to see and will as soon as possible. If relevant, I'll revise this posting. But, no matter for right now; the supplemental registration was also for a literary work (it amplified a textual work, after all), and was a compilation claim. It still was not a choreography claim. Yet, Bikram asserted in litigation that "the teaching or offering of the sequence" constituted infringement. That is, as I said, baloney.

The claim was made in a declaratory judgment action brought by the Open Source Yoga Unity, a non-profit group. Their website has copies of many of the relevant legal documents. The case has now been settled, but not after an April 1, 2005 opinion by Judge Phyllis Hamilton of the Central District of California, denying Open Source's motion for summary judgment. A decision that Bikram had a copyright in a pictorial compilation of 26 exercises or in narration about them would be uncontroversial, no more so than a compilation of someone's choices of the best Indian restaurants in New York City. But what is controversial, indeed, outrageously wrong, was Judge Hamilton's conclusion that "should Choudhury establish at trial that his copyright in the Bikram yoga style is valid, under Section 106(4) he retains the exclusive right to authorize the public performance of his sequence."

Not true. Section 102(b) dictates otherwise, as does the very limited scope of the compilation. The only thing hot about Bikram's claim is the air in stating it.