Compilation of Yoga Positions Can Be Protected by Copyright

On April 1, 2005, the district court for the Northern District of California found that a selection and arrangement of yoga positions (known as “asanas” ) can be the subject of a valid copyright. Open Source Yoga Unity v. Bikram Choudhury, (N. D. Cal., 4/1/05, No. C 03-3182 PGH).

Bikram Choudhury, is the founder of the popular brand of yoga known as Bikram Yoga®. Open Source Yoga Unity, Inc. (“OSYU”) is an organization comprised of yoga instructors who seek to cancel Bikram's trademarks and copyrights in Bikram Yoga®.

Judge Phyllis Hamilton denied OSYU’s motion for summary judgment that the Bikram yoga sequence constituted uncopyrightable functional physical movements, not creative expression. The Court acknowledged the uniqueness of the case, noting:

"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 court went on to find, however, that "OSYU has provided no persuasive authority that a compilation of yoga asanas cannot be protected under the copyright laws in the same manner as other compilations." Citing Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003), the court found that the Bikram yoga asanas could be protected as “a combination of unprotectable elements . . . if those elements are numerous enough and their selection and arrangement are original enough that their combination constitutes an original work of authorship." The Choudhury court observed:

“while functional and public domain material remains free for all to 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.”

The court also rejected the OSYU’s claims for declaratory judgment of non-infringement. Noting that while the copyright in the Bikram Yoga sequence must necessarily be considered “thin", the court nevertheless held that Choudhury “could properly enjoin exact or near-exact duplication of his yoga sequence, if the routines taught by OSYU were 'substantially similar' to Choudhury’s and thus infringing.”

The court also rejected OSYU’s claim that the Bikram Yoga® sequence, originally copyrighted under the 1909 Act, was subject to cancellation for failure to comply with that Act’s requirements of a copyright notice at the time of publication. OSYU argued that such a publication occurred when Bikram performed the sequence in his yoga classes in the 1970’s and demonstrated the sequence in Japan. The court denied summary judgment finding a triable issue of fact in Choudhury’s claim that he merely performed his sequence in these venues, since “mere performance of or exhibition of a work does not constitute a publication of that work," citing American Vitagraph, Inc. v. Levy, 650 F.2d 1023, 1027 (9th Cir. 1981).

The court next rejected OSYU's motion for summary judgment that Choudhury’s copyright was unenforceable based on alleged copyright misuse. Construing the evidence in Choudhury's favor for purpose of the motion for summary judgment, the court found the evidence could allow a finding that Choudhury had asserted only valid copyright claims.

Finally, the court found numerous questions of fact prevented summary judgment of OSYU’s claim that the Choudhury’s trademark Bikram Yoga® was invalid because it is generic.