Copyright law not flexible enough to protect Bikram Yoga Sequence
Thursday 15th October 2015
Article written by: Thomas Huthwaite
Last week, we reviewed the US Ninth Circuit Court of Appeals’ decision holding that the “Batmobile” was copyrightable as a character.  This week, we review the opinion of Judge Wardlaw in the same Court, holding that a sequence of yoga poses and breathing exercises was not entitled to copyright protection.
The case is an important follow-up to the Batmobile decision because it addresses head-on the idea/expression dichotomy. Copyright does not protect an idea, but rather, a particular expression of an idea. The issue before the Court was whether a particular Bikram Yoga Sequence was the proper subject of copyright protection.
The idea/expression dichotomy
The Court held that the Yoga Sequence fell squarely within the ‘idea’ exclusion to copyright protection, codified in section 102(b) of the US Copyright Act 1976:
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.
This exclusion is a familiar copyright concept, despite not being codified in other equivalent legislation, such as the New Zealand or Australian Copyright Acts.
In early English case law, it was said that copyright belongs to “the person who has clothed the idea in form”. The Australian Court said: “copyright does not operate to give any person an exclusive right to state or to describe particular facts. A person cannot by first announcing that a man fell off a bus or that a particular horse won a race prevent other people from stating those facts.”
The fitting French term, scène à faire (literally: “scene that must be done”), provides that a commonplace idea or standard scene within a particular genre of work cannot attract copyright protection. An example might be the concept of a story’s protagonist taking refuge from a storm in a church building, or an alien with supernatural powers, stranded on a planet and hunted by an authority.
With that background in mind, consider the facts of the Bikram’s Yoga case.
Bikram Choudhury’s Yoga Sequence
In 1971, Bikram Choudhury introduced the ancient Indian practice of yoga to Beverly Hills, California. Choudhury was born and raised in Calcutta, India, where he had studied yoga since he was 4 years old. Over time, Choudhury developed a particular arrangement of 26 ‘asanas’ (poses) and two breathing exercises, which he called the “Sequence”. Choudhury dictated that the Sequence was to be performed in its precise order, over 90 minutes, and in a room heated to 105 degrees Fahrenheit (40.6 degrees Celsius) to simulate the Indian climate.
In 1979, Choudhury published and registered the Copyright in his book, Bikram’s Beginning Yoga Class, which included descriptions, photographs, and drawings of how to perform the Sequence. From 1994, Choudhury also provided a Bikram Yoga Teacher Training Course, which two of the defendants (Mark Drost and Zefea Samson) completed.
In 2009, Drost and Samson founded their own company, Evolation Yoga, and started to offer “hot yoga”, which used the same Sequence, performed over 90 minutes, in a room heated to 105 degrees Fahrenheit. In July 2011, Choudhury alleged copyright infringement.
Stretching copyright protection too far
In some ways, it’s easy to have sympathy for Choudhury, who undisputedly developed a particular and novel arrangement of asanas and breathing exercises, performed over a particular timeframe (90 minutes) and at a particular temperature (105 degrees). Choudhury describes his Sequence as being designed “scientifically”, with each asana forming the perfect basis for the next, to be “particularly beautiful and graceful”. The Sequence became hugely popular, and is now practiced around the world.
Here are some examples of the poses in Choudhury’s Sequence:
When seen in visual form, it’s easy to ask: why should this Sequence not attract copyright protection? We know that the simple arrangement of names and phone numbers as a telephone book does attract copyright protection, as do the characterisation of the Batmobile, James Bond, and Godzilla, despite their changing appearances in different stories.
Judge Wardlaw’s opinion suggests that the answer lies in the well-established idea/expression dichotomy. As with any original literary work, Choudhury’s book (including the specific images contained therein) is certainly copyrightable. No one else may take and publish those same images and words, which are a particular expression of Choudhury’s Sequence and practice.
But, says Judge Wardlaw, the particular expression is not what Choudhury seeks to protect here. Instead, Choudhury seeks to prevent others’ from performing and teaching the Sequence. That Sequence (and the practice of that sequence) is described by Choudhury as a “system” and a “method” designed to yield physical benefits and a sense of well-being. Judge Wardlaw held that the Sequence is therefore not a particular expression of an idea; it is the idea. No one may secure copyright protection for an idea, system, or practice – even (or perhaps especially) if it relates to human well-being.
Lest we forget, Choudhury’s Sequence was also founded on, and chosen from, an ancient practice. Choudhury may have breathed new life into that practice and introduced it to the modern Western world, but the US Court has made it clear that he does not own the practice (or his Sequence) to the exclusion of everyone else.
Numerous other systems have fallen into this same trap, including: a book-keeping system, the performance of surgery, the recipe or procedure for producing food, and a process of meditation. These are not concrete expressions like literary or artistic works, or even choreographic works or compilations. While each of these systems may have been novel at the time of their creation, they do not represent the “unique clothing of an idea”; rather, their sequences are the idea, or at the very least scène à faire for the idea.
One aspect of the decision that is difficult to grapple with is the section on choreographic works, which have been expressly copyrightable in US law since the effective date of the Copyright Act 1976. Movement patterns expressed as choreography may be protected if they meet three criteria:
- (a) The work must be a “choreographic work”, defined by the US Compendium of Copyright Practices as: “the composition and arrangement of dance movements and patterns”. “Dance” in turn is defined as “static and kinetic successions of bodily movement in certain rhythmic and spatial relationships.” While Choudhury’s Sequence would not be colloquially termed a “dance”, it does seem to meet this definition. As a sequence, the 26 steps are not a simple routine or step – like the Waltz step, or a pirouette, which could not be protected by copyright. Choudhury has not sought to protect one “building block” of the Sequence, but the entire combination of 26 steps – a choreography of movements, argued Choudhury.
- (b) The work must be original. Choudhury’s Sequence is likely to be original, despite its 26 individual components having been chosen from many more of the ancient practice of yoga.
- (c) The choreographic work must be “fixed in any tangible medium of expression” in a manner that it “can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Choudhury’s Sequence has been set down visually in his book.
Looking at these criteria, it seems the Sequence could be protected as a choreographic work. Judge Wardlaw disagreed, and dealt with the issue of choreographic work by again referring back to the idea/expression dichotomy: ““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.”
In other words, the Sequence is an idea, and an idea cannot be copyrighted. It does not matter whether the idea can be defined as a “choreographic work”. On our reading, there is an element of circularity to this reasoning: if a work meets all the definitional requirements of an original, tangible medium of expression, how can it only amount to an “idea”?
The position in New Zealand
The idea/expression dichotomy was briefly discussed in a recent New Zealand High Court interlocutory decision involving sensory mazes. There, the plaintiffs described their copyright as subsisting in a “series of “maze-like” rooms, each filled with varying special effects and illusions”. The defendants argued that there was no copyright “work” because what was claimed was copyright over bare ideas and concepts, for example, the idea of a “tactile room” or a “room filled with bouncy balls”.
The High Court disagreed, saying that the copyright claim “is in relation to the overall look and expression of those ideas, as expressed in the sum total of Infinity [the name of the maze attraction park]. In the same sense, the concept of having a theme park with different roller-coasters cannot be claimed as copyright, but the particular combination of rides and themes could be expressed in a particular way which is capable of copyright.”
This indicates that our Courts may adopt a lower threshold than the US Courts for determining what forms of expression may amount to a copyright “work”.
The latest Bikram’s Yoga decision may still be appealed. In the future, Choudhury may be better off seeking protection in the US via other means, such as patent registration (if applicable), contractual terms, or any relevant trade practices or consumer protection legislation. While copyright is one of the more flexible forms of intellectual property, it can only be stretched so far.
 Bikram’s Yoga College of India, L.P., & Bikram Choudhury v. Evolation Yoga, LLC, & Mark Drost & Zefea Samson, no. 13- 55763 F.3d (9th Cir. 2015)
 Donoghue v. Allied Newspapers Limited (1938) Ch. 106
 Victoria Park Racing and Recreation Grounds Co. Ltd v. Taylor (1937) 58 CLR 479 at 498
 Cain v. Universal Pictures Co., 47 F. Supp. 1013 (1942)
 Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984)
 Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991)
 DC Comics v. Mark Towle, no. 13-55484 F.3d (9th Cir. 2015)
 Metro-Goldwyn-Mayer, Inc. v. Am. Honda Motor Co., 900 F. Supp. 1287, 1295–96 (C.D. Cal. 1995) at 1296
 Toho Co. v. William Morrow & Co., 33 F. Supp. 2d 1206, 1216 (C.D. Cal. 1998) at 1216
 Baker v. Selden, 101 U.S. 99 (1879)
 Ibid at 102–05; see also Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1526 (9th Cir. 1992)
 Publications International, Ltd. v. Meredith Corp., 88 F.3d 473 (7th Cir. 1996)
 Palmer v. Braun, 287 F.3d 1325 (11th Cir. 2002)
 Donoghue v. Allied Newspapers Limited (1938) Ch. 106
 Cain v. Universal Pictures Co., 47 F. Supp. 1013 (1942)
 Horgan v. MacMillan, Inc., 789 F.2d 157 (2d Cir. 1986)
 Compendium II §§ 450, 450.01 (1984)
 17 U.S.C. § 102(a)
 Dreamtech Designs & Productions Pty Limited v Clownfish Entertainment Limited  NZHC 1143
 Referring to Beckmann v Mayceys Confectionary Ltd  IPR 543 (CA)
 See Bikram’s Yoga at pages 9 – 10, 13 - 14
This article is intended to summarise potentially complicated legal issues, and is not intended to be a substitute for individual legal advice. If you would like further information, please contact a Baldwins representative.