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Bikram Yoga and Copyright: A lot of ‘Hot’ Air?


Guest Post by Kartik Khanna
Kartik Khanna is a fourth year student of NUJS, Kolkata. He wrote for us in the past as well. [See here]
Facts

While India has been embroiled in patenting issues concerning yoga positions [here], a different storm is brewing in the United States. Continuing a long running saga, Bikram Choudhary, the founder of Bikram Yoga has filed a copyright infringement suit against Greg Gumucio, who is offering similar services through his brand, ‘Yoga to the People’ [YTTP]. Bikram Yoga involves a yoga session lasting 90 minutes. This includes 26 poses, two breathing exercises and a scripted dialogue. All this occurs in a room that is heated to 105 degrees “designed to work every muscle.” These yoga lessons have been propounded by way of Bikram Yoga’s numerous outlets across the world.
Greg Gumucio, a former student of Choudhury, founded YTTP and offered the exact course, heated room et al, at a much lower price. Choudhary had claimed that YTTP’s initiative has not only affected it economically, but also amounts to an infringement of Bikram Yoga’s copyright over the yoga poses. The lawsuit is reportedly seeking damages in excess of $1 million, as well as an injunction stopping YTTP from offering the exact course as Bikram Yoga.
Issue

It has to be seen if it is possible to enjoy copyright over a yoga pose or over a collection of poses that lead to medical benefits. India’s only response to intellectual property in the field of yoga has been the introduction of yoga poses in the Traditional Knowledge Digital Library [TKDL] [here]. Spicy IP has discussed the issue of patentability and touched upon copyrightability hereand here.
Possible arguments
Trawling through the Bikram Yoga’s voluminous litigation history, it is clear that past cases have relied on a claim of copyright arising out of a literary exposition of the Bikram Yoga process [Open Source Yoga Unity v. Bikram Choudhury, 2005 U.S. Dist. LEXIS 10440]. It was held then that Bikram Yoga would exercise all rights over the literary work and prevent anyone from performing the poses. I will argue how this observation ignores the fundamental facets of copyright law. It is to be noted that no judicial pronouncement has been made till date on his ability to copyright the pose itself.
It is reported however, that Choudhary is arguing that the poses should be protected as choreographic works under §102(a)(4) of the Copyright Law of the United States. [See here]
Choudhary’s biggest problem is that the U.S. Copyright Office is disinclined to agree with his interpretation of the copyright law. Their position is that the poses cannot be deemed to be ‘choreographic’ in nature. This is a shift from its earlier position when it permitted yoga poses and their sequences to be registered as a choreographic work, even if those poses were in public domain.
This latest interpretation seems to be correct. As per Indian Law, choreographic work forms a part of dramatic work and hence, can be said to share it characteristics. U.S. Law however, treats choreographic work separately from dramatic work. This suggests that the inclusion of ‘choreographic work’ as a separate right is intended to ensure a wider interpretation of the term. Keeping this in mind, the case of Horgan v. Macmillan Inc. [789 F.2d 157 (2d Cir. 1986)] mandated the flow of steps and movement to qualify work as ‘choreographic’. 
To my mind, a choreographic work suggests a form of ‘dance’ that obviously falls outside the realm of dramatic work enshrined in §102(1)(3). At the risk of sounding crude, I regard a yoga pose as ‘exercise’ [especially in the form it is being taught by Bikram Yoga]. Exercises like running on a treadmill or cycling would not qualify as a ‘dance’ and despite the intricacy involved, neither would a Dhanurasanataught by Choudhary.
Assuming then, that Bikram Yoga relies on its old argument of protection of literary work, it is arguable that the work created is actually functional in nature, broaching the territory of patent law. There is a very interesting Freakonomics blog post [See here], which discusses how Choudhary will have to downplay the medical benefits of ‘Hot Yoga’ that he teaches in order to enjoy copyright over it. The element of functionality means that the expression in Choudhary’s book concerning the yoga poses cannot enjoy copyright as a literary work. The work thus, will not qualify for copyright protection under the head of both choreograph or literary work.
Analysis
Is it possible to enjoy copyright over the pose itself? Arguing for the same would leave you liable for a forced IQ test. It is after all akin to saying that the mouth-to-mouth procedure to revive people can be copyrighted. It doesn’t matter if you have your own special procedure of thumping the back and then going about your reviving business. Any attempt to enjoy copyright the same should receive nothing more than an admonishment for wasting the time of the good people of the court.
Viewed from another angle, it is to be seen if by describing the actions on paper, I can prevent anyone from performing the poses. That line of argument would not be anymore helpful for Choudhary. It is nothing but a predatory practice to enjoy the gamut of rights under copyright over something in public domain. If I wrote a book on football and described the technique of stepovers, it would be ludicrous to start suing Messi and Ronaldo for publically performing my literary work. Similarly, a painstaking description of how to cut trees will not stop deforestation owing to people fearing a copyright infringement notice in their mailbox. Copyright law has certainly not prevented independent dieticians from suggesting the Atkin’s diet to their patients.
If the idea had been expressed such that there was no room to describe it in any other way, it would be difficult to enjoy copyright over the description of the poses. This flows from the ‘Merger Doctrine’ expounded in Chancellor Masters and Scholars of the University of Oxford v. Narendra Publishing that mandates that no copyright can be granted over content where idea and expression are so tied together, that they cannot be separated. Add to this the fact that Choudhary has not formulated the yoga poses himself but only used knowledge in public domain. His selection of 26 unique poses and their description (with the slightest infusion of novelty) could arguably qualify the work as a compilation. However, that would still prevent one from copying the book, not do or teach the pose itself.
Clearly, Bikram Yoga needs to stop being a pain in the aasana and stop the endless stream of frivolous litigations. Anything to the contrary would belittle the purity of yoga itself and unnecessarily commercialise it.
Mathews P. George

Mathews P. George

Mathews is a graduate of National University of Juridical Sciences, Kolkata. His interest in intellectual property was kindled when he bagged the second position in his second year of Law School (in the prestigious Nani Palkhiwala Essay Competition on Intellectual Property). His stint as a student of Prof. Shamnad Basheer further accentuated his interest in intellectual property. Winner of almost a dozen essay competitions in his Law School days, he was involved in various research and policy initiatives relating to intellectual property. Mathews is, currently, based out of Munich, Germany. He had earlier done his LLM in 'IP and Competition Law' from Munich Intellectual Property Law Centre (jointly run by Max Plank Institute for Innovation and Competition, University of Augsburg, Technical University of Munich and George Washington University, Washington).

3 comments.

  1. AvatarEver Victorious

    If Bikram has a clause in the signing agreement that all those who learn the yoga from him are not entitled to use the same for commercial purpose, then he could have based the suit on the negative covenant. I wonder if they will plead an implied negative covenant – a contract to teach yoga implies that he cannot use it for commercial purpose.

    Copyright per se is a weak ground for the case.

    Reply
  2. AvatarAnonymous

    Hi Kartik,

    I was wondering from where do you get the interpretation that “choreographic work” must relate to “dance”?

    Regards

    Reply
  3. AvatarKartik

    @Anonymous: There is an obvious lacuna in the precise meaning of ‘choreograph work’ as understood in US Law.

    If you rely on the meaning given by dictionaries to ‘choreography’, as is the case in several writings, there is a clear tilt towards ‘dance’.

    I think it would be unwise to restrict the meaning of choreography to dance. A cheerleading sequence would also qualify as choreography as it satisfies the ‘flow of movement’ and ‘steps’ laid down in the Horgan case.

    Even if you argue that choreography is much wider than a form of dance, I have tried to show that the yoga being taught here is a form of exercise and should not be seen as a form of choreography.

    I guess the best idea is to interpret the word in terms of common usage as well as the interpretation given by the Horgan case.

    Reply

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