Bikram's Yoga College of India, L.P. v. Evolation Yoga, LLC

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BIKRAM’S YOGA COLLEGE OF INDIA, No. 13-55763
L.P., a California limited
partnership; BIKRAM CHOUDHURY, D.C. No.
an Individual, 2:11-cv-05506-
Plaintiffs-Appellants, ODW-SS
v.
OPINION
EVOLATION YOGA, LLC, a New
York limited liability company;
MARK DROST, an Individual; ZEFEA
SAMSON, an Individual,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted
May 8, 2015—Pasadena, California
Filed October 8, 2015
Before: John T. Noonan, Kim McLane Wardlaw,
and Mary H. Murguia, Circuit Judges.
Opinion by Judge Wardlaw
2 BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
SUMMARY*
Copyright
Affirming the district court’s grant of partial summary
judgment, the panel held that a sequence of yoga poses and
breathing exercises was not entitled to copyright protection.
The panel held that under 17 U.S.C. § 102(b), the
“Sequence,” developed by Bikram Choudhury and described
in his 1979 book, Bikram’s Beginning Yoga Class, was not a
proper subject of copyright protection because it was an idea,
process, or system designed to improve health, rather than an
expression of an idea. Because the Sequence was an
unprotectible idea, it was also ineligible for copyright
protection as a compilation or choreographic work.
COUNSEL
Ivana Cingel (argued), Carla Christofferson and Daniel
Petrocelli, O’Melveny & Myers LLP, Los Angeles,
California, for Defendants-Appellants.
Eric R. Maier (argued) and Louis Shoch, Maier Shoch LLP,
Hermosa Beach, California, for Plaintiffs-Appellees.
Kevin M. Fong and Cydney A. Tune, Pillsbury Winthrop
Shaw Pittman LLP, San Francisco, California, for Amicus
Curiae Yoga Alliance.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA 3
OPINION
WARDLAW, Circuit Judge:
We must decide whether a sequence of twenty-six yoga
poses and two breathing exercises developed by Bikram
Choudhury and described in his 1979 book, Bikram’s
Beginning Yoga Class, is entitled to copyright protection.
This question implicates a fundamental principle underlying
constitutional and statutory copyright protection—the
idea/expression dichotomy. Because copyright protection is
limited to the expression of ideas, and does not extend to the
ideas themselves, the Bikram Yoga Sequence is not a proper
subject of copyright protection.
I. Factual and Procedural History
The Indian practice and philosophy of yoga date back
thousands of years. See Linda Sparrowe, Yoga 9 (2002).
Derived from ancient Hindu scriptures, including the
Bhagavad Gita, the practice of yoga teaches students to attain
spiritual fulfillment through control of the mind and body.
See Stefanie Syman, The Subtle Body: The Story of Yoga in
America 4 (2010). Yoga has evolved into a diverse set of
spiritual, philosophical, and physical disciplines. Some
students practice yoga to transcend the physical body and
unite with divine powers; others focus on improving strength,
flexibility, and overall physical fitness.
The history of yoga in the United States reflects its wide-
ranging appeal. Some of yoga’s first American adherents
included nineteenth-century transcendentalists, such as Henry
David Thoreau and Ralph Waldo Emerson, who were
fascinated by yoga’s approach to achieving enlightenment.
4 BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
In the early twentieth century, yoga grew more popular as
scientists and physicians began to study the physical benefits
of the practice. These physical benefits caught the attention
of Hollywood celebrities, including Gloria Swanson, Greta
Garbo, and Marilyn Monroe, who embraced yoga as a tool to
fight illness and aging. See Pankaj Mishra, Posing as Fitness,
N.Y. Times, July 23, 2010.1 By the 1960s, Americans
increasingly turned to yoga as a “non-religious, decidedly
unspiritual” form of physical exercise. Sparrowe, supra, at
50.
In 1971, Bikram Choudhury, the “self-proclaimed ‘Yogi
to the stars,’” id. at 56, arrived in Beverly Hills, California.
He soon became a central figure in the growing popularity of
yoga in the United States. Born and raised in Calcutta, India,
Choudhury began studying yoga at age four and learned
hundreds of traditional Hatha yoga “asanas,” or individual
poses. Hatha yoga places particular emphasis on the physical
components of yoga. Choudhury developed a sequence of
twenty-six asanas and two breathing exercises, arranged in a
particular order, which he calls the “Sequence.” See Bikram
Choudhury, Bikram’s Beginning Yoga Class (1979).
Choudhury opened his own studio, where he began offering
“Bikram Yoga” classes. In a Bikram Yoga class, the
Sequence is practiced over the course of ninety minutes, to a
series of instructions (the “Dialogue”), in a room heated to
105 degrees Fahrenheit to simulate Choudhury’s native
Indian climate.
Choudhury popularized the Sequence by marketing the
many health and fitness benefits it provides. Choudhury
1
This article may be found at http://www.nytimes.com/2010/07/25/
books/review/Mishra-t.html.
BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA 5
informs prospective students that his “system of Hatha Yoga
is capable of helping you avoid, correct, cure, heal, or at least
alleviate the symptoms of almost any illness or injury.” He
claims that he developed the Sequence after “many of years
of research and verification . . . using modern medical
measurement techniques.” He tells reporters that he extended
the careers of professional athletes, including Kareem Abdul-
Jabbar and John McEnroe. This message has resonated with
an American audience: as the complaint in this action
explains, “[p]ublic demand for Bikram Yoga classes grew
steadily once Bikram Yoga participants realized that
Bikram’s unique yoga style and method offered them
tremendous physical, mental and other benefits.”
In 1979, Choudhury published the book Bikram’s
Beginning Yoga Class, which includes descriptions,
photographs, and drawings of the Sequence’s twenty-six
poses and two breathing exercises. Choudhury registered the
book with the U.S. Copyright Office in 1979. In 2002, he
also registered the “compilation of exercises” contained in the
book, using a supplementary registration form that referenced
back to the 1979 book.2
In 1994, Choudhury introduced the “Bikram Yoga
Teacher Training Course.” In 2002 and 2005, respectively,
Mark Drost and Zefea Samson enrolled in and successfully
completed the three-month Bikram Yoga Teacher Training
2
Choudhury has registered several other works with the Copyright
Office, including Bikram’s Beginning Yoga Class (2d ed.) (2000),
Bikram’s Beginning Yoga Class (sound cassette) (2002), Bikram’s Yoga
College of India Beginning Yoga Dialogue (2002), Bikram’s Yoga
College of India: Yoga Teacher Training Course: Curriculum Outline
(2002), Yoga for Pregnancy (2002), Bikram’s Advanced Yoga Class
(2006), and Bikram’s Yoga (2007).
6 BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
course. In 2009, Drost and Samson founded Evolation Yoga,
LLC. Evolation Yoga offers several types and styles of yoga,
including “hot yoga,” which is similar to “Bikram’s Basic
Yoga System.” Evolation acknowledges that hot yoga
“includes 26 postures and two breathing exercises and is done
for 90 minutes, accompanied by a series of oral instructions,
in a room heated to approximately 105 degrees Fahrenheit.”
On July 1, 2011, Choudhury and Bikram’s Yoga College
of India, L.P. (“Choudhury”)3 filed a complaint in the Central
District of California alleging, inter alia, that defendants
Evolation Yoga, LLC, Mark Drost, and Zefea Samson
(“Evolation”) infringed “Bikram’s Copyrighted Works
through substantial use of Bikram’s Copyrighted Works in
and as part of Defendants’ offering of yoga classes.” On
November 12, 2012, Evolation moved for partial summary
judgment as to Choudhury’s claim of copyright infringement
of the “Sequence.” The district court granted Evolation’s
motion, ruling that the “Sequence is a collection of facts and
ideas” that is not entitled to copyright protection. The parties
settled all remaining claims against each other, and
Choudhury timely appealed as to the “Sequence.”
II. Standard of Review
“We review de novo a district court’s grant of partial
summary judgment, and may affirm on any ground supported
by the record.” White v. City of Sparks, 500 F.3d 953, 955
(9th Cir. 2007) (citation omitted). “After ‘viewing the
3
For the purposes of this appeal, it is not necessary to distinguish
between Bikram Choudhury, the individual, and Bikram’s Yoga College
of India, LP. Accordingly, we refer to all Plaintiffs-Appellants as
Choudhury.
BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA 7
evidence in the light most favorable to the nonmoving party,’
we determine ‘whether there are any genuine issues of
material fact and whether the district court correctly applied
the relevant substantive law.’” Id. (quoting Am. Civil
Liberties Union of Nev. v. City of Las Vegas, 333 F.3d 1092,
1097 (9th Cir. 2003)).
III. Discussion
Though Choudhury emphasizes the aesthetic attributes of
the Sequence’s “graceful flow,” at bottom, the Sequence is an
idea, process, or system designed to improve health.
Copyright protects only the expression of this idea—the
words and pictures used to describe the Sequence—and not
the idea of the Sequence itself. Because the Sequence is an
unprotectible idea, it is also ineligible for copyright protection
as a “compilation” or “choreographic work.” The district
court properly granted partial summary judgment in favor of
Evolation because the Sequence is not a proper subject of
copyright.
A. The Sequence Is an Unprotectible Idea.
Section 102(a) of the Copyright Act of 1976 sets forth the
proper subjects of copyright protection. 17 U.S.C. § 102(a).
Section 102(b) expressly excludes protection for “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.”
Id. § 102(b). Section 102(b) codifies the “idea/expression
dichotomy,” under which “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,
8 BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
537 U.S. 186, 219 (2003)); see also Frybarger v. Int’l Bus.
Machs. Corp., 812 F.2d 525, 529 (9th Cir. 1987) (explaining
that Section 102(b) “expressly codified” this principle); H.R.
Rep. No. 94–1476, at 57 (1976) (explaining that the “purpose
[of Section 102(b)] is to restate . . . that the basic dichotomy
between expression and idea remains unchanged”).
The idea/expression dichotomy has two constitutional
foundations: the Copyright Clause and the First Amendment.
Under the Copyright Clause, “[t]he primary objective of
copyright is not to reward the labor of authors, but ‘[t]o
promote the Progress of Science and useful Arts.’” Feist
Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349
(1991) (quoting U.S. Const. art. I, § 8, cl. 8). Thus, “[t]he
‘constitutional command’ . . . is that Congress, to the extent
it enacts copyright laws at all, create a ‘system’ that
‘promote[s] the Progress of Science.’” Eldred, 537 U.S. at
212 (quoting Graham v. John Deere Co. of Kansas City,
383 U.S. 1, 6 (1966)). “To this end, copyright assures authors
the right to their original expression, but encourages others to
build freely upon the ideas and information conveyed by a
work.” Feist, 499 U.S. at 349–50. At the same time, the
idea/expression dichotomy “strike[s] a definitional balance
between the First Amendment and the Copyright Act by
permitting free communication of facts while still protecting
an author’s expression.” Harper & Row Publishers v. Nation
Enters., 471 U.S. 539, 556 (1985); see also Eldred, 537 U.S.
at 219 (describing the idea/expression dichotomy as a “built-
in First Amendment accommodation[]”); L.A. News Serv. v.
Tullo, 973 F.2d 791, 795 (9th Cir. 1992) (“Copyright law
incorporates First Amendment goals by ensuring that
copyright protection extends only to the forms in which ideas
and information are expressed and not to the ideas and
information themselves.”); 5 Melville B. Nimmer & David
BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA 9
Nimmer, Nimmer on Copyright § 19E.04[B] (2015) (“[F]ree
access to ideas is vital not only for copyright law but also for
the maintenance of the democratic dialogue . . . .”).
In Baker v. Selden, 101 U.S. 99 (1879), the Supreme
Court addressed the protection copyright law provided to a
book, a classic subject of copyright protection, explaining a
system of book-keeping. Id. at 99–100. The Court held that
the book’s expression of the book-keeping system was
protected, but the system of book-keeping itself was not
entitled to copyright protection. Id. at 102. The Court
explained:
The description of the art in a book, though
entitled to the benefit of copyright, lays no
foundation for an exclusive claim to the art
itself. The object of the one is explanation;
the object of the other is use. The former may
be secured by copyright. The latter can only
be secured, if it can be secured at all, by
letters-patent.
Id. at 105.
Following Baker, and recognizing this vital distinction
between ideas and expression, courts have routinely held that
the copyright for a work describing how to perform a process
does not extend to the process itself. In Palmer v. Braun,
287 F.3d 1325 (11th Cir. 2002), for example, the Eleventh
Circuit held that meditation exercises described in a
copyrighted manual on exploring the consciousness were “a
process” unentitled to copyright protection. Id. at 1334. The
court explained that the “exercises, while undoubtedly the
product of much time and effort, are, at bottom, simply a
10 BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
process for achieving increased consciousness. Such
processes, even if original, cannot be protected by
copyright.”4 Id. Similarly, in Publications International, Ltd.
v. Meredith Corp., 88 F.3d 473 (7th Cir. 1996), the Seventh
Circuit held that recipes contained in a copyrighted cookbook
are not entitled to copyright protection, for they merely
“describe a procedure by which the reader may produce many
dishes,” and “there can be no monopoly in the copyright
sense in the ideas for producing certain foodstuffs.” Id. at
481. Finally, in Seltzer v. Sunbrock, 22 F. Supp. 621 (S.D.
Cal. 1938), which predates the Copyright Act of 1976 but
applies Baker, the court held that the copyright in a manual
describing how to organize roller-skating races does not
extend to the rules for the races themselves. Id. at 630. The
court explained, “[w]hat [the author] really composed was a
description of a system for conducting races on roller skates.
A system, as such, can never be copyrighted. If it finds any
protection, it must come from the patent laws.” Id. (citing
Baker, 101 U.S. 99).
Here, we must similarly determine not the validity of a
copyright but rather its scope.5 Does Choudhury’s copyright
4
Cf. Arica Institute, Inc. v. Palmer, 970 F.2d 1067, 1075 (2d Cir. 1992)
(holding that the owner of copyrights in training materials describing
ancient Sufi methods to “better understand oneself and one’s interactions
with others” was judicially estopped from claiming copyright protection
for the program techniques, in light of representations in commercial
publications that the techniques were “based upon . . . proven scientific
knowledge” and “provable in the laboratory and clinically”).
5
As noted above, Choudhury obtained a copyright for a “compilation of
exercises” through his 2002 supplementary registration to Bikram’s
Beginning Yoga Class, which was first published in 1979. Choudhury
claims that the 2002 supplementary registration relates back to the 1979
registration. In Choudhury’s view, the supplementary registration thus
BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA 11
protection for his 1979 book extend to the Sequence itself?
Under the fundamental tenets of copyright law and consistent
with the precedents discussed above, the answer is no.
As Choudhury describes it, the Sequence is a “system” or
a “method” designed to “systematically work every part of
the body, to give all internal organs, all the veins, all the
ligaments, and all the muscles everything they need to
maintain optimum health and maximum function.” In
Bikram’s Beginning Yoga Class, Choudhury explains that he
“arrived at the sequence of postures” after “[researching] the
diseases and the postures and after many years of research
and verification . . . using modern medical measurement
techniques.” The book tells readers that “Bikram’s
twenty-six exercises systematically move fresh, oxygenated
blood to one hundred percent of your body, to each organ and
fiber, restoring all systems to healthy working order, just as
Nature intended. ” Bonnie Jones Reynolds, Introduction to
Bikram’s Beginning Yoga Class, at xi (1979). This text
promises readers that Choudhury’s “system of Hatha Yoga is
capable of helping you avoid, correct, cure, heal, or at least
alleviate the symptoms of almost any illness or injury.”
Also illuminating is Choudhury’s spoken Dialogue, which
accompanies the Sequence. Before the Sequence’s first
breathing exercise, for example, the instructor tells students,
“[The exercise] is good for the lungs and respiratory system.
issued within five years of first publication and therefore serves as “prima
facie evidence of the validity of the copyright.” 17 U.S.C. § 410(c). Here,
however, we need not decide whether Choudhury’s supplementary
registration is prima facie evidence of the validity of the copyright, for
even if it were, the undisputed facts are sufficient to overcome any
presumption of validity.
12 BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
This exercise expands your lungs to their maximum
expansion capacity. And it improves the elasticity of your
lungs.” Before the twelfth pose, the instructor explains:
Every exercise in the world you do, you burn
energy/calories like driving a car burns gas.
The tank is empty, you need to fill it up again.
Hatha Yoga class is a gas station, it is the only
place in the world where you gain energy
instead of burning energy. Asana is the only
natural physical activity in the world because
it is scientific [and] with the help of science,
we can explain nature.
An essential element of this “system” is the order in
which the yoga poses and breathing exercises are arranged.
Bikram’s Beginning Yoga Class instructs readers, “Do the
poses in the strict order given in this book. Nothing about
Bikram’s Beginning Yoga Class is haphazard. It is designed
to scientifically warm and stretch muscles, ligaments, and
tendons in the order in which they should be stretched.”
Bikram’s Beginning Yoga Class, supra, at xi. For instance,
Choudhury explains, “Camel Pose (Ustrasana) stretches the
abdomen and compresses the spine; so for the next posture,
I chose the Rabbit Pose (Sasangasana), which does the
converse: stretches the back and compresses the abdomen.”6
One Yoga Journal article explains that “[a]ccording to
6
A recent research study published in the Journal of Strength and
Conditioning Research further explains the clinical effects of the
Sequence’s composition: “The combination of rapid transition between
postures and environmental heat stress produces a substantial
cardiovascular response and muscle fatigue.” Brian L. Tracy & Cady E.F.
Hart, Bikram Yoga Training and Physical Fitness in Healthy Young
Adults, 27 J. Strength & Conditioning Res. 822, 823 (2013).
BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA 13
Bikram, each posture in his series forms the perfect basis for
the next, warming and stretching the appropriate muscles,
ligaments and tendons.” Loraine Despres, Yoga’s Bad Boy:
Bikram Choudhury, Yoga J., Aug. 28, 2007.7
Choudhury thus attempts to secure copyright protection
for a healing art: a system designed to yield physical benefits
and a sense of well-being. Simply put, this attempt is
precluded by copyright’s idea/expression dichotomy, codified
by Section 102(b). As the Supreme Court explained in Baker,
“Certain mixtures are found to be of great value in the healing
art. If the discoverer writes and publishes a book on the
subject (as regular physicians generally do), he gains no
exclusive right to the manufacture and sale of the medicine;
he gives that to the public.” 101 U.S. at 102–03. Thus, for
example, the copyright for a book describing how to perform
a complicated surgery does not give the holder the exclusive
right to perform the surgery. Like the series of movements a
surgeon makes, the Sequence is, as Choudhury tells readers,
a method designed to “cure, heal, or at least alleviate”
physical injuries and illness. Monopoly protection for such
a method “can only be secured, if it can be secured at all, by
letters-patent.” Id. at 105; see also Sega Enters. Ltd. v.
Accolade, Inc., 977 F.2d 1510, 1526 (9th Cir. 1992), as
amended (Jan. 6, 1993) (“In order to enjoy a lawful monopoly
over the idea or functional principle underlying a work, the
creator of the work must satisfy the more stringent standards
imposed by the patent laws.”). In light of Baker and its
progeny, Choudhury’s healing methodology is not eligible for
protection by copyright. Indeed, if it is entitled to protection
7
This article may be located at http://www.yogajournal.com/
article/lifestyle/yoga-s-bad-boy-bikram-choudhury/.
14 BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
at all, that protection is more properly sought through the
patent process.8
That the Sequence may produce spiritual and
psychological benefits makes it no less an idea, system, or
process and no more amenable to copyright protection.
Choudhury’s personal declaration explains that the Sequence
offers “spiritual benefits” to his students and “lead[s] to a
general sense of peace and well-being that is undoubtedly of
benefit to all of us.” Like the meditation exercises designed
to achieve greater consciousness in Braun, 287 F.3d at 1334,
the Sequence sets forth a method to attain identifiable, if
spiritual and psychological, results: a “sense of well-being”
and “boundless energy.” Bikram’s Beginning Yoga Class,
supra, at xi.9 As such, it falls within the Copyright Act’s
definition of an idea, process, or system excluded from
copyright protection. See 17 U.S.C. § 102(b).
Choudhury contends that the Sequence’s arrangement of
postures is “particularly beautiful and graceful.” But beauty
is not a basis for copyright protection. The performance of
many ideas, systems, or processes may be beautiful: a
surgeon’s intricate movements, a book-keeper’s careful
notations, or a baker’s kneading might each possess a certain
grace for at least some viewers. Indeed, from Vermeer’s
8
We do not opine on whether the Sequence is, in fact, patentable.
9
Choudhury’s website features research, including a report presented at
the Anxiety and Depression Association of America Conference, which
concludes that Bikram Yoga may reduce stress, anxiety, and depression
among women at risk for mental health problems. See Fran Lowry, Hot
Yoga Cools Anxiety, Relieves Depression, Medscape (Apr. 13, 2015),
reproduced at Research, Bikram Yoga, http://www.bikramyoga.com/
BikramYoga/Research.php (last visited Sept. 16, 2015).
BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA 15
milkmaid to Lewis Hine’s power house mechanic, the
individual engrossed in a process has long attracted artistic
attention. But the beauty of the process does not permit one
who describes it to gain, through copyright, the monopolistic
power to exclude all others from practicing it. This is true
even where, as here, the process was conceived with at least
some aesthetic considerations in mind. Just as some steps in
a recipe may reflect no more than the author’s belief that a
particular ingredient is beautiful or that a particular cooking
technique is impressive to watch and empowering to practice,
some elements in Choudhury’s Sequence may reflect his
aesthetic preferences. Yet just like the recipe, the Sequence
remains unprotectible as a process the design of which
primarily reflects function, not expression.
In drawing the “difficult” line between idea and
expression in this case, we are mindful of the “guiding
consideration” of the idea/expression dichotomy: “the
preservation of the balance between competition and
protection reflected in the patent and copyright laws.” CDN
Inc. v. Kapes, 197 F.3d 1256, 1262 (9th Cir. 1999) (quoting
Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738,
742 (9th Cir. 1971)). As in Baker, the “object” of the book
Bikram’s Beginning Yoga Class is “explanation”: it tells
readers how to perform the Sequence and encourages them to
try it. Baker, 101 U.S. at 105. The introduction to Bikram’s
Beginning Yoga Class, for example, urges the audience to:
(i) “turn to the Contents page,” (ii) “read through the book,”
(iii) “build gradually,” and (iv) “do the poses in the strict
order given in this book.” Bikram’s Beginning Yoga Class,
supra, at ix–xi. Like a book explaining “Book-keeping
Simplified,” 101 U.S. at 100, Bikram’s Beginning Yoga Class
sets out to “communicate to the world the useful knowledge
which it contains.” Id. at 103. It invites readers to practice
16 BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
the method it describes. “But this object would be frustrated
if the knowledge could not be used without incurring the guilt
of piracy of the book.” Id. Consumers would have little
reason to buy Choudhury’s book if Choudhury held a
monopoly on the practice of the very activity he sought to
popularize. Rather than “stimulat[ing] artistic creativity for
the general public good,” copyright protection for the
Sequence would prevent the public from engaging with
Choudhury’s idea and building upon it. Mattel, Inc. v. MGA
Entm’t, Inc., 705 F.3d 1108, 1111 (9th Cir. 2013) (quoting
Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156
(1975)).
B. The Sequence Is Not a Copyrightable Compilation.
Choudhury contends that the Sequence is entitled to
copyright protection as a “compilation.” Specifically,
Choudhury claims that the Sequence qualifies for copyright
protection because his “selection, coordination, and
arrangement” of twenty-six poses and two breathing exercises
create a coherent and expressive composition. The district
court correctly rejected this argument.
The Copyright Act identifies compilations as a proper
subject of copyright. Section 103 of the Copyright Act
provides that “[t]he subject matter of copyright as specified
in section 102 includes compilations.” 17 U.S.C. § 103(a).
A “compilation” is “a work formed by the collection and
assembling of preexisting materials or of data that are
selected, coordinated, or arranged in such a way that the
resulting work as a whole constitutes an original work of
authorship.” Id. § 101. It essential to recognize, however,
that Section 103 complements Section 102. Thus, while a
compilation may be eligible for copyright protection, it must
BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA 17
nevertheless satisfy the requirements of Section 102. A
compilation must, in other words, represent an “original
work[] of authorship,” and “[i]n no case” may copyright
protection “extend to any idea, procedure, process, [or]
system.” Id. § 102. The availability of copyright protection
for compilations, therefore, does not eliminate Section 102’s
categorical bar on copyright protection for ideas.
The Supreme Court addressed the relationship between
these “two well-established propositions”¯that compilations
are eligible for copyright but facts and ideas are not¯in
Feist, 499 U.S. 340. In Feist, the Court considered whether
the collection of names, towns, and telephone numbers in a
telephone directory is eligible for copyright protection as a
compilation. The Court held that “[a] factual compilation is
eligible for copyright if it features an original selection or
arrangement of facts, but the copyright is limited to the
particular selection or arrangement. In no event may
copyright extend to the facts themselves.” Id. at 350–51.
By claiming copyright protection for the Sequence as a
compilation, Choudhury misconstrues the scope of copyright
protection for compilations. As we have explained, the
Sequence is an idea, process, or system; therefore, it is not
eligible for copyright protection. That the Sequence may
possess many constituent parts does not transform it into a
proper subject of copyright protection. Virtually any process
or system could be dissected in a similar fashion. Baker’s
examples of “how-to” treatises are instructive: “A treatise on
. . . the construction and use of ploughs, or watches, or
churns[,] . . . or on the mode of drawing lines to produce the
effect of perspective” would likely list the steps necessary to
perform the process it describes. 101 U.S. at 102. The
watchmaking treatise’s author could not claim a copyright in
18 BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
the process of making a watch, however, by breaking down
the process into multiple steps and labeling it a
“compilation.” Recipes further illustrate the point: a cake
recipe could be viewed as a “compilation” of carefully
arranged and selected steps¯which may, of course, reflect
the personal preferences and tastes of the recipe’s author¯yet
the recipe would remain, in most instances, a process that is
not eligible for copyright protection. See Meredith, 88 F.3d
at 480–81. Likewise, Choudhury cannot obtain copyright
protection for the Sequence as a compilation by separately
identifying the poses and breathing exercises it contains.
Moreover, according to Choudhury himself, the medical
and functional considerations at the heart of the Sequence
compel the very selection and arrangement of poses and
breathing exercises for which he claims copyright protection.
According to Bikram’s Beginning Yoga Class, the “strict
order” of the poses “is designed to scientifically warm and
stretch muscles, ligaments, and tendons in the order in which
they should be stretched.” Bikram’s Beginning Yoga Class,
supra, at xi. Read in the light most favorable to Choudhury,
the record demonstrates that the overarching reason for the
organization of the poses and breathing exercises in the
Sequence is to further the basic goals of the method: to attain
“[p]roper weight, muscle tone, glowing complexion,
boundless energy, vibrant good health, and a sense of
well-being.” Id. The Sequence’s composition renders it
more effective as a process or system, but not any more
suitable for copyright protection as an original work of
authorship.
It makes no difference that similar results could be
achieved through a different organization of yoga poses and
breathing exercises. Choudhury argues that he could have
BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA 19
chosen from “hundreds of postures” and “countless
arrangements of these postures” in developing the Sequence.
But the possibility of attaining a particular end through
multiple different methods does not render the
uncopyrightable a proper subject of copyright. See BellSouth
Advert. & Publ’g Corp. v. Donnelley Info. Publ’g, Inc.,
999 F.2d 1436, 1443 (11th Cir. 1993) (“The relevant inquiry
[under Feist] is not whether there is some imaginable,
although manifestly less useful, method of arranging business
telephone listings.”); see also ATC Distrib. Grp., Inc. v.
Whatever It Takes Transmissions & Parts, Inc., 402 F.3d 700,
711–12 (6th Cir. 2005) (“To be sure, [the publisher of a
catalog describing a transmission parts numbering system]
could have arranged the parts information in other ways that
were potentially less clear or useful, but this fact alone is
insufficient to demonstrate the creativity necessary for
copyright protection.”). Though it may be one of many
possible yoga sequences capable of attaining similar results,
the Sequence is nevertheless a process and is therefore
ineligible for copyright protection.10
10
Choudhury argues that the district court granted undue deference to
a recent Copyright Office Policy Statement concerning copyright
protection for yoga sequences as compilations. See Registration of Claims
to Copyright, 77 Fed. Reg. 37605 (June 22, 2012). In this Statement, the
Copyright Office explains that
a claim in a compilation of exercises or the selection
and arrangement of yoga poses will be refused
registration. . . . The Copyright Office would entertain
a claim in the selection, coordination or arrangement of,
for instance, photographs or drawings of exercises, but
such compilation authorship would not extend to the
selection, coordination or arrangement of the exercises
themselves that are depicted in the photographs or
drawings.
20 BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
C. The Sequence Is Not a Copyrightable Choreographic
Work.
The district court properly rejected Choudhury’s
argument that the Sequence is entitled to copyright protection
as a choreographic work.11 The 1976 Copyright Act extended
protection to “pantomimes and choreographic works,” which
were previously not copyrightable. Pub. L. No. 94–553,
90 Stat. 2541, 2545 (codified at 17 U.S.C. § 102(a)(4)). In
1986, the Second Circuit observed that “[e]xplicit federal
copyright protection for choreography is a fairly recent
development, and the scope of that protection is an uncharted
area of the law.” Horgan v. Macmillan, Inc., 789 F.2d 157,
160 (2d Cir. 1986). This remains true today.
The parties debate the meaning of the term
“choreography,” which we have not yet defined in the
copyright context. Nor did Congress define the term
Id. at 37607. We need not decide whether the district court improperly
deferred to the Copyright Office, however, for we “may affirm on any
ground supported by the record.” White, 500 F.3d at 955 (citation
omitted). The undisputed evidence, viewed in the light most favorable to
Choudhury, precludes copyright protection for the Sequence.
11
Though not dispositive, we note that Choudhury did not register the
Sequence as a choreographic work. Choudhury’s Certificate of
Registration for Bikram’s Beginning Yoga Class is for “a nondramatic
literary work.” When Choudhury tried to obtain a Certificate of
Registration for the Sequence as a “work of performing arts,” the
Copyright Office denied his application. The Copyright Office stated that
the “concept or idea for a particular manner or style of exercise is not
registrable.” Choudhury’s subsequent supplementary registration for a
“compilation of exercises” is an extension of the original registration for
“a nondramatic literary work,” and thus is itself a literary work
registration.
BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA 21
“choreographic work[],” apparently because its meaning was
“fairly settled.” H.R. Rep. No. 94–1476, at 53 (1976). The
legislative history does explain, however, that it is not
“necessary to specify that ‘choreographic works’ do not
include social dance steps and simple routines.” Id. at 53–54.
The Second Circuit has relied on the Compendium of
Copyright Office Practices as persuasive authority and
concluded that “[c]horeography represents a related series of
dance movements and patterns organized into a coherent
whole.” Horgan, 789 F.2d at 161 (quoting U.S. Copyright
Office, Compendium II: Compendium of Copyright Office
Practices § 450.03(a) (1984)). The Compendium II defines
“dance” as “static and kinetic successions of bodily
movement in certain rhythmic and spatial relationships.”
Compendium II, § 450.01.12 The “dance movements,”
according to the Compendium II, “must be more than mere
exercises, such as ‘jumping jacks’ or walking steps.” Id.
§ 450.03(a). Finally, the Compendium II explains that
choreography is “usually intended to be accompanied by
music” but “need not tell a story” and need not be presented
“before an audience.” Id. §§ 450.01–450.02.
In this case, we need not decide whether to adopt the
Copyright Office’s definition of “choreographic work” or
fashion another on our own because all categories of works
eligible for copyright protection, including choreographic
works, are subject to the critical requirements and limitations
of Section 102. The beauty of this section is that it allows for
12
This interpretation is consistent with dictionary definitions. Webster’s
defines “choreography” as “the art of symbolically representing dancing.”
Webster’s Ninth New Collegiate Dictionary 237 (9th ed. 1987). “Dance,”
in turn, is defined as “a series of rhythmic and patterned bodily
movements usually performed to music.” Id. at 324.
22 BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
the possibility that the term “original work of authorship”
may, as it has, evolve and encompass new forms of
expression that, like choreography, are not easily reduced to
neat definitions. “Congress recurrently adjusts copyright law
to protect categories of works once outside the law’s
compass.” Golan, 132 S. Ct. at 892 (listing such categories,
including foreign works, dramatic works, photographs,
motion pictures, fixed sound recordings, and architectural
works). Yet as Congress has responded to new technologies
and evolving understandings of creative expression, the
idea/expression dichotomy has remained firmly in place.
This dichotomy, as this case illustrates, polices the uncertain
boundaries of copyrightable subject matter.
The Sequence is not copyrightable as a choreographic
work for the same reason that it is not copyrightable as a
compilation: it is an idea, process, or system to which
copyright protection may “[i]n no case” extend. 17 U.S.C.
§ 102(b). We recognize that the Sequence may involve
“static and kinetic successions of bodily movement in certain
rhythmic and spatial relationships.” Compendium II,
§ 450.01. So too would a method to churn butter or drill for
oil. That is no accident: “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.
The idea/expression dichotomy, codified in Section
102(b), plays a similar role in defining the scope of protection
for a “choreographic work” as it does for compilations. See
Feist, 499 U.S. at 350–51. In the context of choreographic
BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA 23
works, that role is essential. Our day-to-day lives consist of
many routinized physical movements, from brushing one’s
teeth to pushing a lawnmower to shaking a Polaroid picture,
that could be (and, in two of the preceding examples, have
been13) characterized as forms of dance. Without a proper
understanding of the idea/expression dichotomy, one might
obtain monopoly rights over these functional physical
sequences by describing them in a tangible medium of
expression and labeling them choreographic works. The
idea/expression dichotomy thus ensures that expansive
interpretations of the categories enumerated as proper
subjects of copyright will, “[i]n no case,” extend copyright
protection beyond its constitutional limits. 17 U.S.C.
§ 102(b).
IV. Conclusion
Although there is no cause to dispute the many health,
fitness, spiritual, and aesthetic benefits of yoga, and Bikram
Yoga in particular, they do not bring the Sequence into the
realm of copyright protection. The Sequence falls squarely
within Section 102(b)’s exclusions from copyright protection,
no matter how it is labeled or how ably the label is argued.
Therefore, the district court properly granted Evolation’s
motion for partial summary judgment.
AFFIRMED.
13
See How To Do the ‘Lawn Mower’ (Dance), WikiHow,
http://www.wikihow.com/Do-the-%22Lawn-Mower%22-(Dance) (last
visited Sept. 16, 2015); Shake It Like a Polaroid Picture, Urban
Dictionary, http://www.urbandictionary.com/define.php?term=
shake+it+like+a+Polaroid+picture (last visited Sept. 16, 2015).