Copyright Law and Choreography: From The Lawnmower Dance To Bikram Yoga

COPYRIGHT LAW - CHOREOGRAPHY - COMPILATIONS - IDEA/EXPRESSION DICHOTOMY -USEFUL PROCESSES - BIKRAM YOGA - DANCE ROUTINES - COPYRIGHT IN RECIPES - YOGA ROUTINES - DANCE STEPS 












Can copyright law stop dance routines? The Ninth Circuit says no!  In Bikram's Yoga College of India, L.P. v. Evolation Yoga, LLC., 803 F.3d 1032 (9th Cir. Oct. 8, 2015), the Ninth Circuit rejected the Bikram's Yoga College's attempt to stop its former students from using the Bikram method of using a series 26 yoga poses in a 105-degree-heated studio.   Bikram Choudhury wrote a book describing his method in 1979 and made a claim to copyright in the book.   In 2002, the copyright registration was supplemented to claim the "compilation of exercises" contained in the 1979 book.   The 1979 book contained descriptions, photos and drawings of the exercises.


The Ninth Circuit concluded that Bikram's sequence of exercises was not copyrightable because it was an unprotectible idea or process and thus not the proper subject of copyright law.  Section 102(b) of the Copyright Act expressly excludes "any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodies in such work."


Section 102(b) of the Copyright Act codified a copyright law doctrine known as the "idea/expression dichotomy".  That is, "every idea, theory and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication" - even though copyright law protects the author's original contributions to the expression of the idea.


Here, Bikram sought protection of a useful, beneficial healing process that he described as a "system". The difference between copyright law and patent law is that patents may protect useful processes for limited times - copyright law does not.  As the court observed:  "Consumers would have little reason to buy Choudhury's book if Choudhury held a monopoly on the practice of the very activity that he sought to popularize."  The court drew analogies to the lack of copyright in recipes, bookkeeping methods, or in rules for competitive activities.


The Ninth Circuit further rejected Bikram's claims of a compilation or choreographic copyrights.  With respect to choreography, the court could not find a clear definition, but found that it had to be something more than dance steps or useful routines and pointed out that our days are filled with routinized physical movements that cannot be copyrighted but that have become dance routines, such as mowing the lawn or shaking a Polaroid picture.  The court's decision links to the "How To Do The Lawnmower Dance"  Youtube dance routine embedded at the beginning of this blog post.


The first chapter of my book, Copyright Litigation Handbook deals with the scope of copyright law's coverage. Copyrightability is an important issue and one of the first to be raised in a copyright litigation, usually on a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.  The Bikram case went to the Ninth Circuit Court of Appeals following the district court granting the defendant's motion for summary judgment for copyright infringement pursuant to Rule 56 of the Federal Rules of Civil Procedure.  Visit here to see the table of contents.


You can watch the oral argument below, you might enjoy the exchange over how yoga routines are different from jellyfish sculptures.








 






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 Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
 

Copyright Law - Second Circuit: Can Lamp Fixture Elements Be Conceptually Separable?

Copyrightability of Useful Objects, Merger Doctrine, Separability, Light Fixtures and Lamps, Motion to Dismiss Copyright Infringement Action

Aqua Creations USA Inc. v. Hilton Worldwide, Inc., 2012 WL 2687957 (2d Cir. July 9, 2012)(unpublished summary order).  Here the Second Circuit affirmed the dismissal of an amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim.   Plaintiff was a manufacturer of lamp fixtures.  The Copyright Office denied Plaintiff registration for the lamp fixtures.  Useful items are not generally copyrightable.  An exception is only to the extent that a design “incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article”.  The court noted that no aspect of the lamp could be physically separated, citing the famous Mazer v. Stein, 347 U.S. 201 (1954)(copyrighted statue of a dancer as a lamp base remained protectable).   The court then reviewed “conceptual severability” (also known as the “merger doctrine”) – “if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements.”   Conversely “where design elements can be identified as reflecting the designer’s artistic judgment exercised independently of functional influences, conceptual separability exists.”   Pleading tip:  the court chided plaintiff for pleading in a conclusory manner that elements were conceptually and physically separable, but failing to identify any such elements, even on appeal.  In drafting a complaint, a plaintiff should specify elements that are either physically or conceptually separable.

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