Back in February, I wrote about a copyright infringement lawsuit that had been asserted by the creator of Bikram Yoga, Bikram Choudury.
He brought the case against one of his former students on the basis that the student allegedly taught Bikram’s sequence of twenty-six postures without a copyright license to use Bikram’s work. Bikram claimed the sequence of 26 postures was tantamount to choreography, and thus entitled to protection under the Copyright Act.
The Copyright Office disagreed, saying that exercises, including yoga exercises, are not protected as choreography. Because the Copyright Office has extensive experience reviewing copyright claims and the authority to interpret the Copyright Act, courts tend to give deference to its decisions. See Batjac Productions Inc. v. GoodTimes Home Video Corp., 160 F.3d 1223, 1230 (9th Cir. 1998) (deferring to Copyright Office’s refusal of registration, stating “the Register has the authority to interpret the copyright laws and [ ] its interpretations are entitled to judicial deference if reasonable”) (citation omitted); Southco, Inc. v. Kanebridge Corp., 390 F.3d 276, 287 (3d Cir. 2004) (“the Copyright Office’s longstanding practice of denying registration to short phrases merits deference”).
The issue was subject to dispute on the basis that Section 102(a)(4) of the Copyright Act includes choreographic works as subject matter in which copyright protection subsists. See Martha Gram School and Dance Foundation, Inc. v. Martha Gram Center of Contemporary Dance, Inc., 380 F.3d 624, 632 and n. 13 (2d Cir. 2004) (choreographic work may be fixed by being filmed, videotaped or through use of a written system of notation); Horgan v. Macmillan, Inc., 789 F.2d 158, 160, n. 3 (2d Cir. 1986) (same).
Well, in case the Copyright Office failed to put this dispute to rest earlier in the year, it has conclusively done so now.
The Copyright Office announced last week on Friday that it had made a mistake when it issued registration certificates for yoga sequences as “compilation authorship” as a result of the “selections and arrangement of exercises.”
It’s well established that a sufficiently original compilation of unprotectable elements may be protected by copyright. See Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000) (unique compilation of unprotectable musical elements held to be protected). The protection offered by the copyright in such a situation is not for the individual elements giving rise to the compilation, but rather to the selection or arrangement of elements, but only where that selection and/or arrangement is sufficiently original. See Feist Publications, Inc. v. Rural Telephone Service Company, Inc., 499 U.S. 340, 348 (1991); Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003) (“[A] combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes original work of authorship.”).
As to a protectable selection of elements, the more numerous and diverse the criteria used to make the selection, the greater the likelihood that the compilation will be deemed sufficiently original. See Matthew Bender & Co., Inc. v. West Publishing Co., 158 F.3d 674, 682 (2d Cir. 1998) (“creativity inheres in making non-obvious choices from among more than a few options”). The lower the percentage of material used from the universe of relevant elements, the greater the likelihood that the compilation will be deemed sufficiently original. See Eckes v. Card Prices Update, 736 F.2d 859 (2d Cir. 1984); see also Mattel, Inc. v. MGA Entertainment, Inc., 616 F.3d 904, 915 (9th Cir. 2010) (expression of an attractive young, female fashion doll with exaggerated proportions in a doll sculpt is highly constrained because the factors can be exaggerated only so much before they become freakish).
For the arrangement of elements to be protected, there must be sufficient creativity in that arrangement. Again, the greater the number of categories or sections in which the information is arranged, the greater the likelihood that the compilation will be deemed sufficiently original. See Key Publications, Inc. v. Chinatown Today Publishing Enterprises, Inc., 945 F.2d 509 (2d Cir. 1991). The use of obvious, garden-variety, traditional or routine categories or sections in the arrangement of elements will not be sufficiently original for protection. See Feist Publications, supra; Matthew Bender & Co., Inc. v. West Publishing Co., 158 F.3d 674, 682 (2d Cir. 1998) (creativity is lacking where the selection is dictated by industry conventions or other external factors).
Of course, even where the selection and arrangement of elements satisfies the test of originality, the protection provided to a compilation by copyright is thin. See Feist, 499 U.S. at 349. This means that the lack of close copying and the inclusion of additional elements is generally sufficient to withstand a claim of that the plaintiff’s selection of elements has been infringed.
In making its announcement last week, the Copyright Office explained (in keeping with the case law identified above, e.g. that the mere combination of preexisting material does not render it – without more – copyrightable) that a yoga sequence is not entitled to copyright protection as a compilation (or as a work of choreographic authorship).
Jonathan Pink is an intellectual property, entertainment and new media attorney specializing in copyright, trademark litigation, and rights of publicity. He works extensively with clients in the entertainment and retail industries, and is resident in Los Angeles and Orange County, California. He can be reached at email@example.com.