No Copyrighting Yoga Poses, Football Games, or Acupuncture Procedures?

October 7, 2012

Friday, October 5, 2012, by Seiko Okada
An exercise or a posture is not copyrightable under the Copyright Act.  Whether specific sequences of movements are copyrightable has not, however, been entirely clear. The Copyright Office now has taken an official stance in an effort to resolve that question.
Bikram Choudhury, the founder of Bikram Yoga, claimed a copyright to his “compilation” of yoga poses and exercises, and sued other yogis for copyright infringement.  Traditional yogis objected, saying that yoga is a thousands-of-year old health technique that has been designed and taught as an open source material.  Bikram’s rivals created non-profit Open Source Yoga Unity, and sued Bikram back. “On first impression, it thus seems inappropriate, and almost unbelievable, that a sequence of yoga positions could be any one person’s intellectual property,” the trial court said. However, the court found that compilations of yoga movements may be copyrightable.  The case was subsequently settled and did not go further.
To clarify the issue, the Copyright Office recently issued a policy statement:  Authorship claims for compilations that do not result in Congressionally-established copyrightable subject matter will be refused.  That would include a compilation of physical movements, or health promoting processes, like yoga.

Authorship claims for compilations that do not result in congressionally-established copyrightable subject matter will be refused—including compilation of ideas, procedures, or functional physical movements.

A “compilation” means an assembly 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.”  Individually uncopyrightable elements can be compiled into a copyrightable whole.  The Copyright Office analyzed legislative history of the Copyright Act and concluded that Congress did not delegate authority to create new categories of authorship to either courts or the Copyright Office.  The Office can grant a copyright to a compilation only when it falls under one of the eight categories established in the Copyright Act at 17 U.S.C. § 102(a):  (1) literary works; (2) musical works; (3) dramatic works; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.  Applying this policy, a list of the author’s favorite 50 restaurant names may be copyrightable because it may constitute a literary work. On the other hand, the Office said, a copyright to a “compilation of rocks” would not stand—the Office creating a new copyrightable subject matter “rock” would exceed its authority given by Congress.  (Note, a creative compilation of rocks ending up as a sculptural or architectural work would qualify for a copyright.)  Similarly, the Office will not approve a copyright to a compilation of “functional physical movements such as sports movements, exercises, and other ordinary motor activities,” because that does not amount to a choreographic work, i.e., “an integrated, coherent, and expressive whole.”  Yoga poses would fail this test, in the opinion of the Office.
The Office has another ground for refusing a copyright to yoga. The Act’s 17 U.S.C. § 102(b) precludes “certain compilations that amount to an idea, procedure, process, system, method of operation, concept, principle or discovery,” regardless of the form of expression.  According to the Office, yoga poses may be precluded from copyright registration as a functional “system” or “process” under this provision, where yoga poses are meant to result in improvements in one’s physical/mental condition (which was the case in the Open Source Yoga Unity).
The Office admitted that some registrations of compilations of exercises were “issued in error” in the past. Those who own such types of compilation claims, beware.
Going forward, if the Copyright Office’s position is upheld, how can you protect “your own” yoga poses, football games, acupuncture procedures, and the like?  One strategy would be by recording, describing, or taking photographs of them and obtaining copyrights to these forms of expression.  However, such copyrights protect only forms of expression and do not extend to the poses, games, or procedures themselves.  Then, if someone filmed and broadcasted your football game without your authorization, does it follow that you cannot claim a copyright to the game, while that secret filmer can claim a copyright to his audiovisual work?  Another strategy in such a situation might be to seek protection of your game under trademark law.  Interesting questions remain.
The author thanks Susan Olive for her insightful guidance.