Copyright Law Issues – Protection of creative yoga and dance move compilations!
This blog discusses whether or not you can seek federal copyright protection by registering your unique dances moves, signature yoga poses, or other creative choreography. In general a yoga stance might not be easy to protect, nor would a simple dance move, however, there might be circumstances when a creative arrangement and compilation might create a right to obtain a copyright.
Key case – Birkam’s Yoga College of India v. Evolation Yoga, LLC
In 2009, Drost and Samson founded Evolation Yoga, LLC. Evolation Yoga offers several types and styles of yoga, including “hot yoga,” which is similar to “Bikram’s Basic Yoga System.” Evolation acknowledges that hot yoga “includes 26 postures and two breathing exercises and is done for 90 minutes, accompanied by a series of oral instructions, in a room heated to approximately 105 degrees Fahrenheit.”
Legal issue: Whether or not the yoga sequence was protected by copyright laws, such that Plaintiff could maintain a claim of federal copyright infringement which would allow Plaintiff to seek damages and penalties for copyright infringement.
Though Choudhury emphasizes the aesthetic attributes of the Sequence’s “graceful flow,” at bottom, the Sequence is an idea, process, or system designed to improve health. Copyright protects only the expression of this idea—the words and pictures used to describe the Sequence—and not the idea of the Sequence itself. Because the Sequence is an unprotectable idea, it is also ineligible for copyright protection as a “compilation” or “choreographic work.” The district court properly granted partial summary judgment in favor of Evolation because the Sequence is not a proper subject of copyright.
“Section 102(a) of the Copyright Act of 1976 sets forth the proper subjects of copyright protection. 17 U.S.C. § 102(a). “Section 102(b) expressly excludes protection for “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” Id. § 102(b). Section 102(b) codifies the “idea/expression dichotomy,” under which “every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication.”
“Choudhury contends that the Sequence is entitled to copyright protection as a “compilation.” Specifically, Choudhury claims that the Sequence qualifies for copyright protection because his “selection, coordination, and arrangement” of twenty-six poses and two breathing exercises create a coherent and expressive composition. The district court correctly rejected this argument.
The Copyright Act identifies compilations as a proper subject of copyright. Section 103 of the Copyright Act provides that “the subject matter of copyright as specified in section 102 includes compilations.” 17 U.S.C. § 103(a). A “compilation” is “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” Id. § 101.It is essential to recognize, however, that Section 103 complements Section 102. Thus, while a compilation may be eligible for copyright protection, it must nevertheless satisfy the requirements of Section 102. A compilation must, in other words, represent an “original work of authorship,” and “in no case” may copyright protection “extend to any idea, procedure, process, or system.” Id. § 102. The availability of copyright protection for compilations, therefore, does not eliminate Section 102’s categorical bar on copyright protection for ideas.”
“The district court properly rejected Choudhury’s argument that the Sequence is entitled to copyright protection as a choreographic work. The 1976 Copyright Act extended protection to “pantomimes and choreographic works,” which were previously not copyrightable. Pub.L. No. 94–553, 90 Stat. 2541, 2545 (codified at 17 U.S.C. § 102(a)(4)). In 1986, the Second Circuit observed that “[e]xplicit federal copyright protection for choreography is a fairly recent development, and the scope of that protection is an uncharted area of the law.” Horgan v. Macmillan, Inc., 789 F.2d 157, 160 (2d Cir.1986). This remains true today.
The parties debate the meaning of the term “choreography,” which we have not yet defined in the copyright context. Nor did Congress define the term “choreographic work,” apparently because its meaning was “fairly settled.” H.R.Rep. No. 94–1476, at 53 (1976). The legislative history does explain, however, that it is not “necessary to specify that ‘choreographic works’ do not include social dance steps and simple routines.” Id. at 53–54. The Second Circuit has relied on the Compendium of Copyright Office Practices as persuasive authority and concluded that “choreography represents a related series of dance movements and patterns organized into a coherent whole.” Horgan, 789 F.2d at 161 (quoting U.S. Copyright Office, Compendium II: Compendium of Copyright Office Practices § 450.03(a) (1984)).”
This case should give you some general guidance on what would be required to seek copyright protection for yoga positions and choreographed dance moves and compilations. There is additional guidance below.
U.S. Copyright Office statement of policy regarding compilations
In one copyright “statement of policy” from the United States Copyright Office (2012), they discussed ways in which there MIGHT be a way to protect dance or yoga moves that constitute “compilation authorship. In this statement of policy they noted:
“SUPPLEMENTARY INFORMATION: The Copyright Office is issuing a statement of policy to clarify its examination practices with respect to claims in “compilation authorship,” or the selection, coordination, or arrangement of material that is otherwise separately uncopyrightable. The Office has long accepted claims of registration based on the selection, coordination, or arrangement of uncopyrightable elements, because the Copyright Act specifically states that copyrightable authorship includes compilations. 17 U.S.C. 103.”
The statement goes on to describe what a compilation is:
A`compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. 17 U.S.C. 101 (“compilation”). This definition’s inclusion of the terms`preexisting material” or “data” suggest that individually uncopyrightable elements may be compiled into a copyrightable whole. The legislative history of the 1976 Act supports this interpretation, stating that a compilation`results from a process of selecting, bringing together, organizing, and arranging previously existing material of all kinds, regardless of whether the individual items in the material have been or ever could have been subject to copyright.” H.R. Rep. 94-1476, at 57 (emphasis added).
The policy memorandum then discussed that there must still be unique work of authorship in the whole:
“Viewed in a vacuum, it might appear that any organization of preexisting material may be copyrightable. However, the Copyright Act, the legislative history and the Supreme Court’s decision in Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (U.S. 1991), lead to a different conclusion. In Feist, interpreting the congressional language in the section 101 definition of`compilation,” the Supreme Court found protectable compilations to be limited to`a work formed by the collection and assembling of preexisting material or data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” Feist at 356, quoting 17 U.S.C. 101 (“compilation”) (emphasis by the Court). The Court stated: The purpose of the statutory definition is to emphasize that collections of facts are not copyrightable per se. It conveys this message through its tripartite structure, as emphasized above by the italics. The statute identifies three distinct elements and requires each to be met for a work to qualify as a copyrightable compilation:
(1) The collection and assembly of pre-existing material, facts, or data;
(2) the selection, coordination, or arrangement of those materials;
(3) the creation, by virtue of the particular selection, coordination, or arrangement, of an`original” work of authorship. Not every selection, coordination, or arrangement will pass muster. This is plain from the statute. We conclude that the statute envisions that there will be some fact-based works in which the selection, coordination, and arrangement are not sufficiently original to trigger copyright protection.
Copyright office definition of Pantomimes and Choreographic works
Here is a fact sheet from the U.S. Copyright office on copyrighting pantomime and choreographic works. The definition on their website states:
“Choreography and pantomimes are also copyrightable dramatic works. Choreography is the composition and arrangement of dance movements and patterns usually intended to be accompanied by music. As distinct from choreography, pantomime is the art of imitating or acting out situations, characters, or other events. To be protected by copyright, pantomimes and choreography need not tell a story or be presented before an audience. Each work, however, must be fixed in a tangible medium of expression from which the work can be performed. Note: Sports games and physical-fitness exercises are not considered choreographic works.”
17 U.S.C. 103 “Compilations”
Section 17 U,S.C. 103 of the U.S. Copyright laws discusses limitations on the the right to claim copyright protection in a yoga or dance compilation:
“(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.”
So the extent you might be able to claim copyright protection, you would not have any rights in any pre-existing works incorporated into your dance moves or yoga poses.
Is there any other types of intellectual property protection?
If you cannot obtain protection for the yoga position, stance, or pose, you might still be able to seek copyright protection for the following (meaning you could have the right to sue anyone who copied your work under the copyright infringement laws, and also be able to license your work to others for profit):
1. Dance videos – ex. a dance moves training video (the video can be copyrighted)
2. Pictures or compilations of dance move or yoga position (the photo for a book for example could be copyrighted, as could a book itself).
3. Podcasts that describe your moves in detail (copyright the podcast or webpage)
4. A film that incorporates the dance move (copyright the film or video)
These are just a few ideas.
Contact a copyright protection & infringement law firm
If you find yourself embroiled in a dispute over copyrighted dance, yoga, or other creative works, contact us to discuss your case. We offer a free initial consultation at (877) 276-5084. We have extensive federal court experience and excellent client reviews.
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