|Photo: "Yoga in the Mountains" by Tomas Sobek licensed under Creative Common Attribution License.|
Until recently, the U.S. Copyright Office took the position that the selection and ordering of public domain exercises was copyrightable. But the Office has now revoked the position, explaining in a new statement of policy that a compilation of exercises or the selection and arrangement of yoga poses would be refused registration because exercise is not a category of authorship that can be granted copyright protection. This new opinion arose out of a copyright case pitting “Bikram Yoga” against “Yoga to the People.”
For the uninitiated, Bikram Yoga is a sequence of twenty-six yoga poses and two breathing exercises performed in a room around 100 degrees Fahrenheit.
Back in 2005, “Open Source Yoga Unity” attempted to invalidate Bikram Yoga’s copyright, but the court refused to do so, explaining that while public domain materials remain free for all to use, a compilation of that same material may qualify for copyright protection if there is a sufficient level of creativity in the selection and arrangement of the elements in the compilation. This law extends from the Supreme Court’s decision in Feist Publications v. Rural Telephone Service, where the court held that public domain factual information (such as names, addresses and telephone numbers) arranged in an obvious manner (such as alphabetically by last name) lacked sufficient creativity to be copyrighted.
Examples of sufficient creativity for copyrighting a compilation in two cases show the requisite level of creativity is small. In Key Publications, Inc. v. Chinatown Today Publishing Enterprises Inc., copyrightability of the yellow pages of a telephone directory for New York’s Chinese-American community was upheld because the arrangement of the directory into categories (such as accountants, bridal shops, shoe stores, bean curd & bean sprout shops) was sufficient for creativity. The court also upheld the copyrightability of a “pitching form” comprised of nine statistics about a pitcher’s performance in Kregos v. Associated Press. The “pitching form” contained a sufficient level of copyrightability because Kregos had not failed to display enough selectivity.
Arguably then, the Bikram Yoga sequence should be copyrightable if the sequence of yoga poses contain a sufficient level of creativity. But not according to the recent policy change by the U.S. Copyright Office. Bikram’s lawyer argued this change shouldn’t affect Bikram’s case, arguing that the Copyright Office “has issued ‘hundreds of copyrights for exercise videos, but now they’re saying they’re looking at it again and they’ve changed their mind? It is meaningless to this litigation.’”
However, a copyright in an exercise video is very different from a copyright in a sequence of yoga positions. With the new policy, if a selection and arrangement of elements does not result in a compilation that is subject matter within one of the categories in section 102(a), registration will be refused. An exercise video would have a copyright in the category of “motion pictures and other audiovisual works.” In the Feist case, had the alphabetical directory contained sufficient creativity, it would have been copyrightable as a “literary work” according to the Copyright Office. So while a sequence of yoga poses is a compilation as defined in section 103 of the Copyright Act, it would not fit into any category under section 102.
Bikram has argued that the yoga sequence can be classified as “choreography” for purposes of the Copyright Act, but the Copyright Office has shot that down as well. In a letter to “Yoga to the People,” the U.S. Copyright Office stated that “exercises, including yoga exercises, do not constitute the subject matter that Congress intended to protect as choreography. Thus, we will not register such exercises (including yoga movements), whether described as exercises or as selection and ordering of movements.” “Compilation” on its own is a subset of the section 102(a) categories, not a distinct and separate category, so yoga sequences could not use that as a category either. Meanwhile, the federal court will have the final say in this interesting copyright dispute.