Copyright Protection in Yoga Exercises? Not Likely

I remember when I first heard of Bikram Yoga, the rigidly prescribed sequence of twenty-six postures set to balmy 105 degrees and 40% humidity:

It was New Year's day some years ago and we were walking with friends -- and kids in strollers -- around Balboa Island in Newport Beach. A woman in our group was a recent convert to Bikram Yoga. Most of us (except for my very well read wife) had never heard of it.

After an explanation of this form of hot yoga, a young physician in the group opined that it sounded dangerous.

Conflict came early to Bikram Yoga.

Bikram Yoga is said to be the most popular – certainly the most well known -- form of hot yoga. Derived from traditional hatha yoga, it was developed and popularized by Bikram Choudury.

By all accounts he has made a mint off of it. According to Wikipedia, Mr. Chodury's owns more than 40 Rolls Royces, including cars owned by the Queen Mother and the Beatles (although probably not at the same time). Wikipedia quotes him saying “I'm making - I don't know - millions of dollars a day, $10 million a month - who knows how much?”

Who knew a yoga franchise could be so profitable? Given that it is, it’s easy to understand why Choudury would want to protect his golden goose by zealously guarding the right to teach the 26 postures in a sauna-like setting.

After first learning of Bikram Yoga, occasionally reemerged in my periphery. At some point, a year or two later, I received a call from the owner of a yoga studio who described a brewing dispute with Bikram. He (or his lawyers) didn’t want her to offer Bikram-style yoga absent Bikram-authorized training and a Bikram-license.

Hey, this may be meditative, but it’s also business. Someone’s got to pay for Chodury’s watch collection that Wikipedia says is valued at more than $1 million.

When I received the call, I thought you probably can't use his name (nomitive use likely would not work as a defense), but how can he protect the sequence? Does it constitute choreography, maybe?

I never answered the question. The caller decided she didn't have the funds or the fortitude for a yoga fight.

Apparently other Bikram disciples were more inclined to go to the yoga-mat on this.

Greg Gumucio is the founder of Yoga to the People, a New York based franchise which offers "Traditional Hot Yoga." He’s a former student of Chodury. Now he’s the defendant in a copyright infringement lawsuit brought by Chodury based on Gumucio having allegedly taught Bikram's sequence of twenty-six postures set to 105 degrees (or there about).

Wow, talk about “Time for you to go, Grasshopper.” “Time for me to squish you like a bug, Grasshopper!”

It seems Bikram used the argument that the sequence of 26 was tantamount to choreography, and thus entitled to protection under the Copyright Act.

Section 102(a)(4) of the Copyright Act includes choreographic works as subject matter in which copyright protection subsists. Of course, the Copyright Act only affords protection to a work that is "fixed", that is, written or recorded on some physical medium. Thus, courts have found protection in a choreographed work where, e.g. the movements were digitized in a video game (Ahn v. Midway Manufacturing, Co., 965 F. Supp. 1134, 1138 (N.D. Ill. 1997); 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).


Accordingly, Bikram’s argument was that the movements required for the yoga at issue were comparable to a choreographic work thus were protectable under 17 U.S.C. Section 102(a)(4).

Well, the Copyright Office has weighed in on this, and the answer is . . . No.

After conducting a legislative review of the Copyright Act, the Copyright Office determined that exercises, including yoga exercises, are not protected as choreography.

Breath . . . Deeply.

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”).

I'm not sure what this means to the creators of Jazzercise, Tae Bo or other exercise routines, but this case does seem to add some clarification to the issue of choreography.

By the way, Gumucio is now suing for a recovery of his fees. So exhale . . . at least for now.


Jonathan Pink is an intellectual property attorney in the Los Angeles and Orange County offices of Bryan Cave, LLP. He specializes in copyright, trademark and unfair competition claims. He can be reached at jonathan.pink@bryancave.com.