The Hot Debate Over Copyrighting Bikram Yoga (posted for Sau Chen)
Bikram Choudhury, a flamboyant yogi whose following includes celebrities, sports stars and supermodels, in 2003 obtained a copyright on his sequence of 26 yoga postures and two breathing exercises done at a room temperature of about 100 degrees Fahrenheit. It was a move that got some fellow practitioners in the U.S. and the government in his native India steamed.
In response, a group called Open Yoga Source Unity filed suit in federal court in California. Meanwhile, the government in India has gathered 100 historians and scientists to catalogue 1,500 yoga poses (“asanas'') recorded in ancient texts. The goal: to use the catalogue to try to block anyone else from cornering the market on the 5,000-year-old discipline of stretching, breathing and meditating.
Bikram (who goes by his first name) said he sought legal protection for his yoga because “it's the American way.''
“You cannot drive the car if you do not have a driver's license. You cannot do brain surgery if you're not a brain surgeon. You cannot even do a massage if you don't have a license.'' So, you shouldn't be able to teach Bikram's style of yoga unless you pay him for a license. If you infringe, Bikram says he's entitled to receive an award of statutory damages of as much as $150,000 per infringement as well as attorneys fees.
Bikram first sought copyright protection for his work in 1979 when he registered his book Bikram's Beginning Yoga Class. More than 20 years later, he secured federal copyright registration for the sequence itself under 17 U.S.C. § 410. Like buying a McDonald's burger or drinking Coca-Cola, Bikram has said he wants consumer recognition; he wants people to know what they're getting and the consistency of the product when they step into a heated studio of one of his personally trained instructors. He even has a trademark for their studios: a depiction of himself doing the spinal twist. But did he deserve a copyright?
In 2005, Open Source Yoga challenged Bikram's copyright before Judge Phyllis J. Hamilton in the U.S. District Court in Northern California. Hamilton faced two issues: how to apply two competing principles of copyright law and whether Bikram's yoga sequence should be regulated under the 1909 Copyright Act or the 1976 Act.
As for the competing principles, copyright law does not protect factual or functional information, or information already in the public domain. However, copyright law does extend protection to an arrangement of information in the public domain assembled in a sufficiently creative fashion.
Yoga has been in the U.S. public domain for decades, a mere blip compared with yoga's history in India. Bikram first selected and arranged his sequence of asanas between 1965 and 1970, and taught the sequence in Southern California throughout the 1970s. He also presented the yoga sequence at a conference in Japan in 1972. Was what he did enough to win a copyright?
Hamilton, relying on first impression, said it seemed “inappropriate, and almost unbelievable, that a sequence of yoga positions could be anyone's intellectual property.'' Even, the U.S. Copyright Office had misgivings initially. In a 2002 letter to Bikram's attorney, the agency said it took “the position that functional physical movements such as exercise and other ordinary motor activities do not represent the type of authorship intended to be protected under the copyright law. Since your work does not contain sufficient original choreographic authorship, we must refuse registration on this basis.''
Still, Bikram won his copyright – protecting only the arrangement of asanas as specifically described in his book. While copyright law provides that functional and public domain material remains free for all use, a compilation of that material may nonetheless qualify for copyright protection if the compiler can demonstrate a sufficient level of creativity in the selection and arrangement of the elements in the compilation. Labeling a sequence of 26 poses and two breathing exercises with a “sufficient level of creativity'' seems to be a debatable as evidenced by Open Source Yoga's lawsuit.
Hamilton called Bikram's copyright “thin,'' meaning when the range of protectable expression is narrow, the appropriate standard for illicit copying is virtual identity.'' Still, Bikram's attorneys have sent cease-and-desist letters to studios and gyms worldwide for offering similar forms of yoga. In addition to keeping others from the exact copying of the sequence, the copyright prohibits others from creating “derivative'' works of the sequence and “virtually all modifications or additions to the sequence,'' according to Birkam. 
Open Source Yoga argued that the Bikram yoga sequence could not be copyrighted because the practice of yoga and the individual poses were merely uncopyrightable functional physical movements. Among the cases the group cited for the proposition that an exercise routine (karate) could not be copyrighted was Data East USA Inc. v. EPYX, Inc., 862 F.2d 204 (9th Cir. 1988).
However, the court would not accept Data East in its analysis because the case involved a copyright infringement claim raised by competing karate video games; it did not reach the issue of the originality of karate routines. It was an uphill battle for Open Source Yoga, which the court said failed to provide any persuasive authority that a sequence of yoga poses could not be protected under copyright law in the same manner as other compilations. Still, the court wasn't unsympathetic to Open Source Yoga's cause, admitting that there seems to be no authority to preclude such application even “while recognizing, and even agreeing that application of the law of compilations to yoga asanas appears to violate the spirit of yoga.''
Open Source Yoga also tried to undermine Bikram's copyright under the 1909 Copyright Act. Here is where the issue got complicated. When Bikram put together the sequence in the late 1960s or 1970s, the Copyright Act of 1909 was in effect. Under the 1909 Act, any publication of a copyrightable work made without a copyright notice irrevocably dedicated the work to the public, rendering the work uncopyrightable in the future.
The court held that while the 1909 Act is silent on the issue of choreography, the legislative history for the 1976 specifies that “choreography that has never been filmed or notated'' is to be considered a work not fixed in tangible form. Therefore, performance alone could not be considered general publication.
Another tricky aspect here was that the term “publication'' was not defined in the 1909 Act, according to the court. The Ninth Circuit has defined “publication'' for the purposes of the 1909 Act as occurring “when by consent of the copyright owner, the original or tangible copies of a work are sold, leased, loaned, given away, or otherwise made available to the general public.''
Open Source Yoga speculated that Bikram must have memorialized his poses at some point since the sequence was presented at a medical conference in Kyoto, Japan, in 1970. However, the group could not produce evidence that Bikram did anything other than perform the yoga sequence, and there was no evidence that he ever reduced the elements of the sequence to writing or otherwise tangibly memorialized it before publishing a book in 1979.
At the same time, Bikram denied that he published the sequence until his 1979 book. The court noted that it would be “nearly impossible'' for Bikram to prove a negative – that he did not publish the sequence during the 1960s and 1970s. Even on this issue, the court was not unsympathetic with Open Source Yoga.
“Although it seems likely that Choudhury would have memorialized the sequence during the decade or so that he taught it prior to its appearance in his book, OSYU's uncorroborated speculation that he did simply does not amount to a colorable claim. But even if it did, the court would find Choudhury's statement that he did not publish the sequence prior to 1979 sufficient to raise triable issues of fact.''
Even though Open Source Yoga eventually settled out of court with Bikram, the jury arguably is still out on the whole issue.
 Mindy Fetterman, Yoga Copyright Raises Questions of Ownership, USAToday, June 29, 2006.
 Open Source Yoga Unity v. Choudhury, 2005 U.S. Dist. LEXIS 10440 (N.D. Cal. 2005).
 Letter from U.S. Copyright Office to Jacob Reinbolt at Procopio, Cory, Hargreaves & Savith LLP (March 4, 2002).
 Letters from Procopio, Cory, Hargreaves & Savitch to Nester Fernandez II, Manager of the San Francisco Bay Club (July 19, 2002 and Dec. 5, 2002)
 Open Source Yoga Unity, 2005 U.S. Dist. LEXIS 10440 at 11.
 Open Source Yoga Unity v. Choudhury, 2005 U.S. Dist. LEXIS 10440