Prof. Randal C. Picker, University of Chicago Law School
October 13, 2015
That is the clickbait headline for last week’s Ninth Circuit decision in Bikram’s Yoga College of India, L.P. v. Evolation Yoga, LLC. The issue in the case was whether a particular set of so-called hot yoga practices could be copyrighted. The Ninth Circuit said no, given the limits on the scope of copyright set forth in Section 102(b) of the Copyright Act. That is almost certainly the right answer, but as always, it is worth working through the analysis in detail.
First a little background. Bikram Choudhury is a well-known yoga practitioner. Even though yoga has roots going back thousands of years to India, for present purposes, Choudhury’s story starts in 1971 in Beverly Hills, Calif. By 1978, he had written a yoga book, Bikram’s Beginning Yoga Class. The core of the work was a series of 26 yoga postures done in a particular sequence. As the Bikram Yoga website makes clear, this particular yoga practice will “move fresh, oxygenated blood to one hundred percent of your body, to each organ and fiber, restoring all systems to healthy working order, just as Nature intended.” The Bikram Yoga System consisted of the 26 poses done in standard sequence, along with two breathing exercises and a rote dialogue delivered by the yoga instructor, all done in a toasty 105 degree Fahrenheit yoga studio.
Choudhury seems to have been quite successful, but one man can only lead so many yoga sessions. The solution to that was to create yoga franchises and to train new yoga teachers. That gets us to Mark Drost and Zefea Samson. Both took the three-month Bikram Yoga Teacher Training program and then subsequently started Evolation Yoga, where they offered hot yoga. Their hot yoga program appears to have been an almost-identical copy of the Bikram yoga program. In July 2011, Choudhury and his training school brought suit against Drost, Samson, and Evolation alleging violation of copyright laws, trademark laws, unfair competition, breach of contract, and more. Only the copyright issues reached the Ninth Circuit.
I have not seen Choudhury’s original 1978 book, but presumably the expression in the book is straightforwardly within copyright. But as Charles Selden was to learn, protecting the expression of a set of ideas is quite different from protecting the ideas or system embodied in that expression. The U.S. Supreme Court so held in 1880 in Baker v. Selden and a version of that idea is currently set forth in Section 102(b) of the Copyright Act. Choudhury wanted more than just protection for the book, but instead wanted to bar entrants from implementing his sequence of yoga poses and the dialogue repeated by instructors when going through the poses.
Last week, the Ninth Circuit rejected this effort and relied on Section 102(b) to treat the sequence of poses as an unprotectable idea. The court relied on Baker and then also pointed to a series of decisions rejecting copyright at the edges (for meditation exercises, cookbook recipes, and rules for organizing roller-skating races). And the Ninth Circuit focused on the health benefits that had been touted as flowing from the 26-pose sequence. Copyright is appropriately nervous about allowing what purports to be a set of rules for framing expression somehow be converted into rules for controlling functionality. While the Bikram instructional dialogue might very well be copyrightable – and the Ninth Circuit doesn’t really address that – the poses themselves have been around for thousands of years and even copyright’s pretty extended duration wouldn’t cover those, plus individual poses are almost certainly functional and not expressive.
But Choudhury had two other copyright paths available and both of those need to be considered. Even if the individual poses were thought to be in the public domain, U.S. copyright law makes it possible for authors to gain copyright in compilations of public domain elements (see Section 103). Focus on the sequence of poses and not the individual poses. But the Ninth Circuit quickly disposed of this as well, making clear that core limit on copyrightability in Section 102(b) applied when the particular compilation was functional and not expressive.
Finally, the Ninth Circuit turned to whether the yoga sequence could be protected as a choreographic work. The 1976 Copyright Act is quite clear that copyrighted works include pantomimes and choreographic works (see Section 102(a)(4)). Think Martha Graham and Alvin Ailey and not the cha-cha-cha. In assessing whether the Bikram yoga sequence qualified, the Ninth Circuit looked to internal guidance from the U.S. Copyright Office in the form of the 1984 Compendium of Copyright Practices (Second Edition).
I am not quite sure why the Ninth Circuit looked at the 1984 edition given the 2014 publication of the new third edition of the Compendium. The Third Edition is clear to distinguish choreographic works (which are copyrightable) from social dances (which are not). The key idea here is that the former are expressive while the latter are not. The same idea would apply directly to the yoga system (and that is exactly what the Third Edition says).
Noah Feldman believes that the Ninth Circuit erred in rejecting Choudhury’s copyright. He notes, correctly, the importance of having copyright in expressive dance, but what I think he misses is the absence of any expression in Choudhury’s yoga sequence. As I have suggested before on this blog, expressive intent is important – central? – to copyright. In some sense, intending to express is what it means to author. Focusing on expressive intent can create its own problems given the manipulability of that idea – suppose Choudhury subsequently offered an interpretation of what his yoga sequence expressed? – but copyright tries to solve that problem through its own internal doctrines, such as the idea-expression dichotomy and the merger doctrine.
Like a practiced yogi, copyright is flexible, but not infinitely so. Firms will seize on copyright to try to limit competition when more direct limits, such as the patent system, are unavailable and that will put courts in the position of policing copyright’s boundaries. A good starting point in these situations is to focus on whether something actually expressive is at stake. If instead the dispute if over control of functionality, courts need to make sure that copyright isn’t extended to where it doesn’t belong.