For more than a century, courts have been grappling with the issue of what types of work are eligible for copyright protection. New mediums of expression present challenges to the traditional analyses, and the law continues to evolve on this issue. In the case of Choudhury v. Evolation Yoga[1], the Ninth Circuit Court of Appeals declined to stretch the scope of copyright protection to yoga poses.
Background
Bikram Choudhury, author of the 1979 book Bikram’s Beginning Yoga Class, and his company Bikram’s Yoga College of India (collectively referred to as “Choudhury”), brought suit against Evolation Yoga, Mark Drost, and Zefea Samson (“Evolation”). Choudhury argued that Evolation infringed his copyright in “the Sequence,” a series of 26 yoga poses and two breathing exercises that Choudhury first incorporated into his 1979 book and later into most of his published works. Specifically, Choudhury argued that by teaching these poses during a yoga class, Evolation infringed his public performance right in the Sequence.
Evolation moved for summary judgment as to Choudhury’s infringement claim. The U.S. District Court for the Central District of California granted Evolation’s motion, holding that the Sequence is a collection of facts and ideas that is not entitled to copyright protection. After settling all remaining claims, Choudhury appealed to the Ninth Circuit.
Is the Sequence an Idea or an Expression?
The idea/expression dichotomy is one of the fundamental axioms of copyright law. The doctrine was codified in the 1976 Copyright Act at 17 U.S.C. § 102(b), and it excludes from copyright eligibility “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 [a] work.” As a result, “every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication.” Golan v. Holder, 132 S. Ct. 873, 890 (2012) (quoting Eldred v. Ashcroft, 537 U.S. 186, 219 (2003)).
The classic example of the idea/expression dichotomy is the case of a book describing an accounting system, which the Supreme Court held ineligible for copyright protection in Baker v. Selden, 101 U.S. 99 (1879). In Baker, the Court held that the book’s expression of the system – the arrangement of the chapters and the literal expression of the text – was protected by copyright. But, the system enjoyed no copyright protection as it was an “object of explanation” that, if protectable by law at all, would be protectable under the patent system.
Following Baker, courts have routinely held that copyright protection for a work describing how to perform a process does not extend to the process itself.[2] The issue that the Ninth Circuit addressed in this case was the scope of Choudhury’s copyright. Of course, his books and videos containing the Sequence enjoyed copyright protection. But Choudhury claimed that the Sequence itself was eligible for protection. The Court disagreed with this contention, and upheld the District Court’s holding that the Sequence was an ineligible process or system.
The Court provided a lengthy explanation as to why the Sequence is a system not eligible for copyright. In brief, the Court first found dispositive the fact that Choudhury’s own text described the Sequence as “a system . . . or method designed to systematically work every part of the body . . . to maintain optimum health and maximum function.” Second, the Court found that the “order-matters” nature of the Sequence indicated that it was an unprotectable system. The Sequence, according to the Court and Choudhury, is a healing art designed to yield physical benefits and a sense of wellbeing. Although Choudhury argued that the Sequence’s particular arrangement was “beautiful and graceful,” the Court found that the Sequence is principally a reflection of its function and not its aesthetics. Furthermore, the purpose of the book that first contained the Sequence was explanation, instructing readers how to perform the Sequence and encouraging them to try it. Finally, the Court considered the perspective of consumers, who would be essentially prevented from doing the Sequence in public if it were protected by copyright.
Is the Sequence Protectable as a Compilation?
Choudhury argued that the Sequence was entitled to copyright protection as a compilation because its “selection, coordination, and arrangement” of poses creates a coherent and expressive composition. The Copyright Act specifically contemplates compilations as a proper subject matter for copyright. 17 U.S.C. §103. The Act defines a compilation as “a work formed by the collection and assembling of preexisting materials . . . that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” 17 U.S.C. § 101. However, the Court emphasized that Section 103 is a complement to Section 102, which codifies the idea/expression dichotomy. “In no case [may copyright protection] extend to any idea, procedure, process [or] system.” 17 U.S.C. § 102. This scenario was addressed by the Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), which held that a telephone book was not minimally creative and was thus ineligible for copyright. The Ninth Circuit applied Feist in this case and held that, even though the Sequence may possess many constituent parts, the mere arrangement of those parts does not elevate it beyond a system. The Court further held that the poses within the Sequence are arranged to increase its effectiveness and that such arrangement is not eligible for copyright protection. It makes no difference, according to the Court, that the same health results could be achieved through other means because the Sequence is inescapably a system and therefore ineligible for copyright protection.
Is the Sequence Protectable as a Choreographic Work?
Finally, Choudhury argued that the Sequence is protectable as a choreographic work. The 1976 Copyright Act extended protection to “pantomimes and choreographic works,” which were previously not copyrightable. 17 U.S.C. § 102(a)(4). However, the scope of protection for choreography remains “an uncharted area of the law.” Horgan v. Macmillan, Inc., 789 F.2d 157, 160 (2d Cir. 1986). In Choudhury, the Court struggled with the definition of choreography, finding no guidance in the Copyright Act or its legislative history. So it turned to the Compendium of Copyright Office Practices, which defines choreography as “a related series of dance movements and patterns organized into a coherent whole.” U.S. Copyright Office, Compendium II: Compendium of Copyright Office Practices § 450.03(a) (1984). The Compendium further defines “dance” as “static and kinetic successions of bodily movement in certain rhythmic and spatial relationships.” Id., at § 450.01. After reviewing additional definitions in the Compendium, the Court declined to formally adopt or reject them. Rather, the Court reiterated that even if the Sequence meets this, or any other, definition of choreography, it is still subject to the requirements and limitations of Section 102. Thus, as a process or system, it is ineligible for copyright protection.
Moral of the Story and Moving Forward
The lesson of this case is that there is no escaping the ineligibility of ideas, systems, and processes for copyright protection. Choudhury packaged the Sequence in videos and in books and argued that it was independently protectable as a compilation or as choreography. But those arguments were to no avail because as a process, the Sequence was ineligible for copyright protection in the first place.
This holding may raise more questions than it answers. The state of protection for choreography remains in flux, as noted by the Court. Nimmer on Copyright suggests the same ambiguity, highlighting abstract dance and choreographies not prepared for public performance as especially difficult cases. 1 Nimmer on Copyright § 2.07. Without further guidance from the judiciary, those wishing to protect their choreography are left with continued ambiguity nearly 40 years after the passage of the 1976 Copyright Act. Moreover, it is possible to imagine a series of yoga poses that might survive the idea/expression dichotomy. For example, if a professional dancer were to take the stage and do yoga exercises in a performative and expressive manner, perhaps such a performance would be eligible for copyright protection. But, this holding does not shed light on where the line would be drawn if such a case arose. And so the discussion of the boundaries of what is eligible for copyright protection continues.
[1] Choudhury v. Evolation Yoga, LLC, Slip. No. 13-55763 (9th Cir. Oct. 8, 2015).
[2] See, e.g., Palmer v. Braun, 287 F.3d 1325 (11th Cir. 2002) (instructions for meditation were a process not eligible for copyright); Publications International, Ltd. V. Meredith Corp., 88 F.3d 473 (7th Cir. 1996) (recipes in a recipe book were not eligible for copyright); Seltzer v. Sunbrock, 22 F. Supp. 621 (S.D. Cal. 1938) (instructions on how to organize roller-skating races do not merit copyright).