December 16, 2011

If you can copyright choreography, can you copyright a sequence of yoga poses?

Apparently not.

12 comments:

phx said...

Chess games can't be copyrighted either.

Bruce Hayden said...

Probably not.

There are actually two somewhat related issues here. First, can you get it through the Copyright Office, and the answer there is almost assuredly not.

The better question though, since you can get the advantages of copyright registration without actually registering a work by submitting it for registration, and having it rejected (i.e. the Copyright Office's decision on copyrightability is not determinative), is whether it is really protectable by copyright under U.S. law.

And, the answer there is that it is probably not. That to some extent depends on the Federal Circuit you are talking about (slightly different copyright in each). But, for most, what should probably be done is to filter out the non-protectable elements to see if any protectable elements of original expression remain, and one of the filtrations is functionality. The problem for yoga moves is that they are, by design, functional. This move stretches these muscles, and that move stretches those moves.

But, what about the combination and sequence of moves? Well, why are they doing something in a certain order? Is it to warm up and stretch different parts of the body in a certain order? Or does someone find the sequence aesthetically pleasing? Even there though, there may not be enough alternatives to qualify for having sufficient original expression.

So, in the end, we know that a dance or play may be sometimes protected by copyright, but probably not a single yoga move or pose. This falls somewhere in between, but probably closer to the single yoga move or post. Maybe.

Bruce Hayden said...

Chess games can't be copyrighted either.

One of the big problems there is their functionality. In my previous post, I mentioned that as one of the elements that needed to be filtered out.

Part of functionality is that the best, or even very good, moves are considered to be preferable to lesser moves, and a sequence of these are what is most likely being attempted to be protected by copyright.

Now, if someone were trying to protect a marginal game on aesthetic grounds, that would be different. But it is essentially the functionality of the very good games that people have wanted to protect.

Bruce Hayden said...

Let me add something else - "copyrightable" is no longer really a valid word to use with copyright protection. It is an adjective built on a verb, and that implies the ability to perform an action of some sort.

Since the U.S. joined the Berne Convention a bit over 20 years ago, copyright has been essentially automatic in this country, as long as there is original protectable expression and the work was not created by the United States (i.e. by its employees), and a couple of other very small exceptions.

So, what really matters is what the courts say, and not what actions were taken or what the Copyright Office says, though the later is relatively close. But, as I noted above, copyright law differs a bit throughout the Circuits, and the Copyright Office is one national office. So, its pronouncements are not binding, just highly suggestive.

What you can do, is to register a work with the Copyright Office. And, that has certain advantages. One is that you cannot sue for copyright infringement until you have either obtained registration, or been rejected. But, that can be done at the last minute and expedited. The other advantages are the availability for statutory damages and attorneys' fees. You need to have done this up front. These can be esp. important, esp. since you are likely to spend a couple hundred thousand dollars or more taking a copyright case through trial. Being limited to actual damages and no attorneys' fees makes this viable, absent these registration benefits, for only the bigger infringements.

But back to my original point - it no longer makes sense talking about something being "copyrightable". But, you can talk about whether something, like the sequence of yoga moves, is protected or protectable by copyright.

edutcher said...

No dog in this one, but, if it's a specific set of moves, I can't see why you couldn't. Isn't that what a choreographed dance routine is?

They might want to look into legal action, IMHO.

phx said...

Chess games can't be copyrighted either.

I'd think all chess games are unique, but a specific set of strategic or tactical moves (gambits) might be a different thing.

The Crack Emcee said...

While I'm happy about anything that slaps down Bikram, the entire debate is silly:

Yoga poses such as head-to-knee stretches and the sequences of the moves are “exercises” rather than “choreography”..

Bullshit. Yoga is a 5,000 year old spiritual practice designed to produce an altered state of mind, and no amount of convenient Western relabeling is going to make it anything else.

Just as it produces so-called "God Men" in India - who famously end up smearing themselves with excrement and the ashes of the dead - here, it produces, promotes, and reinforces the ignorant "progressive" world view brought to us, partially, by the Maharishi Mahesh Yogi. And, either way, it produces people who are not as strong as those who do calisthenics, who become so enamored with the lifestyle associated with it they can't be reasoned with, who get exploited by cults who embrace it as a sort of gateway drug (why would cults do that if it's just "exercise"?) and - like homosexuality - causes more divisions in society than anyone involved in it cares to admit.

They think they're slick (if you don't pay attention to society's 'spiritual' battles they don't exist, right?) but not everyone is as willfully ignorant as the gullible oikaphobes.

phx said...

Part of functionality is that the best, or even very good, moves are considered to be preferable to lesser moves, and a sequence of these are what is most likely being attempted to be protected by copyright.

My understanding is that people wanted to copyright their entire games to keep them out of proprietary (and for-profit) databases. This was tested in some jurisdiction in recent years and failed.

Particular sequences of moves are only good or bad in specific positions and in the context of an opponent's pieces and moves.

EDH said...

I think the issue is quite simple.

Copyright is supposed to protect "original expression," not ideas or methods.

The focus of yoga is inner peace, not outward expression.

So, yea, I agree: no copyright for you!

ginnad said...

Well, I practice Bikram Yoga, and don't feel like I'm in a cult... But then, maybe I would say that!

I think the article interestingly makes the point that if "exercises" don't count, then any exercise video is no longer covered? Do the people who make "Insanity" know this? This seems like a much larger issue.

Secondly, it is my understanding as a practitioner, that what Bikram objects to is not only the use of the 26 poses, which are part of hatha yoga, but the specific dialog he developed. The dialog is designed to be 99% the same in any studio, with any teacher, so you always get the same experience. (Yes, the McDonalds of yoga.)

I've been to a few "hot yoga" studios who use the dialog verbatim but don't want to pay Bikram's franchise fees. I can understand why this is a problem.

The Crack Emcee said...

ginnad,

Well, I practice Bikram Yoga, and don't feel like I'm in a cult... But then, maybe I would say that!

Haven't met a cultist yet who admitted it, either to themselves or others - unless they got out and looked at it objectively - then, surprise, surprise, surprise, they discover they were in a cult all along. Look, when 900 people can be talked into dying in the jungle of Guyana - or three in a Sedona, Arizona sweatlodge - without it ever occurring to them, then you have to suspect we're talking about some slippery shit. The answer to your problem (not understanding it's a cult) is simple:

Get out.

Think about it: what do you lose by stopping yoga? Nothing. There are other forms of "exercise" that are more rewarding physically, if exercise is what you want, and they don't have a cult taint. Why must you participate in something that does? What is this mass hysteria associated with it, that demands you do it, defend it, and give it your money? That certainly never happened because someone was into push-ups, right? Why yoga?

They're playing with your mind, ginnad, and you'll always be the last to know how,...

ginnad said...

Look, when 900 people can be talked into dying in the jungle of Guyana - or three in a Sedona, Arizona sweatlodge - without it ever occurring to them, then you have to suspect we're talking about some slippery shit.

Dude, seriously? I go to a 90 min yoga class 3 times a week. I get told to push myself and concentrate, not kill myself, or other people.

As for there being other forms of exercise, yes, I know. I do many of them. I ski (and teach skiing), and ski tour, I hike, I snowshoe, I play soccer, etc. I also like to do yoga 3 times a week, and the heat feels nice. It feels good to stretch.

I'm just happy the knots in my neck are gone. Are there other ways I could have achieved that? I'm sure there are. But this one is good too. I've tried other forms of yoga, and this one seems to work for me. That's all.

No one is asking me to sign away my life savings, or shave my head. Lighten up!

The Crack Emcee said...

ginnad,

Dude, seriously? I go to a 90 min yoga class 3 times a week. I get told to push myself and concentrate, not kill myself, or other people.

Do you seriously think telling or asking people to kill themselves is how that process begins? And, if I'm wrong, why do almost all cults endorse yoga?

As for there being other forms of exercise, yes, I know. I do many of them.

You sound just like one of the people who died in that sweatlodge,...

No one is asking me to sign away my life savings, or shave my head. Lighten up!

Cultists are always screaming for others to "lighten up." Needless to say, they are some of the most lightheaded individuals walking the planet,...which is why they're so malleable.

Skeptics have a saying - Don't be so open-minded your brains fall out - which is all your plea to "lighten up" is. You are asking me to stop using my critical faculties - stop thinking about what I know - to accommodate what merely feels right for you. In other words, it's a demand I allow you to be an idiot.

I accept.