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:#%2%6(!1!#3%1)9!3)/./&/-0),!3)/.2:#%2%6(!1!#3%1)9!3)/./&/-0),!3)/.2
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/--/.2
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/5%-%.32).)'(3/&3(%/081)'(3:#%2%6(!1!#3%1)9!3)/./&/-0),!3)/.2
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SPORTS LAW JOURNAL
V
OLUME
XX 2013 I
SSUE
1
Articles
STRETCHING COPYRIGHT TO ITS LIMIT:
ON THE COPYRIGHTABILITY OF YOGA AND OTHER
SPORTS MOVEMENTS IN LIGHT OF THE U.S. COPYRIGHT
OFFICE’S NEW CHARACTERIZATION OF COMPILATIONS
A
LEXANDER
B
USSEY
*
A
BSTRACT
On June 22, 2012, The U.S. Copyright Office (the “Office”)
released a statement of policy indicating that a compilation is un-
copyrightable unless the compilation fits within the enumerated
categories of works of authorship found in 17 U.S.C. § 102(a). Ac-
cordingly, the Office indicated that a compilation of sports moves
such as yoga poses are not copyrightable, and any copyright the
Office has previously registered—such as the one for Bikram Yoga,
which has been the center of an ongoing debate over the copyright-
ability of yoga for several years—is now invalid. While the new
statement from the Copyright Office has chosen the best policy, it
fails to explain adequately why a yoga routine does not fit within the
Office’s own definition of a choreographic work. Furthermore, the
statement does not adequately distinguish between uncopyright-
able sports movements like exercise routines and those that warrant
greater consideration for copyrightability such as figure skating rou-
tines. This comment identifies the arguments that could under-
mine the Copyright Office’s statement, while explaining the policy
considerations that refute those arguments and support the Of-
fice’s statement.
I. I
NTRODUCTION
Exercise fads come and go. During the 1970s and the fitness-
crazed 1980s, Jane Fonda and Richard Simmons popularized aer-
* B.S., B.A., 2010, Bethel University, Saint Paul, MN; J.D. Expected, 2013,
Fordham Law School, New York, New York.
(1)
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obics. Then there was Jazzercise and Billy Blanks’s Tae Bo which
was popularized during the 1990s.
1
More recently, Tony Horton’s
P90X and Insanity have popularized “muscle confusion” and boot-
camp style workout routines.
2
Meanwhile, yoga has existed as a
form of exercise for both the body and the mind for thousands of
years.
3
Bikram yoga, a comparatively recent addition to the yoga
tradition, is now one of the fastest growing styles of yoga in the
United States.
4
In fact, it has become so popular that in 2003,
founder Bikram Choudhury obtained a copyright of a compilation
of twenty-six yoga poses.
5
As of May 2007, the U.S. Copyright Office
had issued 150 yoga-related copyrights (many in books describing
techniques rather than the underlying exercise).
6
Since it was is-
sued, Bikram has used and arguably over-enforced his copyright on
many occasions. But in late 2011, Laura Lee Fischer, the acting
Chief of the U.S. Copyright Office’s Performing Arts Division, de-
clared that copyrights in yoga sequences were no longer valid.
7
Fur-
thermore, in an official statement of policy, the Office declared that
a compilation of exercise movements is not a valid copyrightable
1. See generally
J
AZZERCIZE
, http://www.jazzercise.com/ (last visited July 15,
2012) (defining jazzercise as fun, effective workout combining dance-based cardio
with strength training and stretching); see also Penelope Green, Mirror, Mirror;
Punching and Kicking All the Way to the Bank,
N.Y. T
IMES
, Mar. 21, 1999, at 6, available
at http://www.nytimes.com/1999/03/21/style/mirror-mirror-punching-and-kick-
ing-all-the-way-to-the-bank.html (explaining Tae Bo fitness as workout system that
is “a cocktail of tae kwon do, boxing and aerobics”).
2. See generally
T
ONY
H
ORTON
,
http://www.tonyhortonsworld.com/ (last vis-
ited July 15, 2012) (defining P90X system as home fitness program designed to
constantly challenge muscles with variety of intense movements); see also Insanity
,
B
EACH
B
ODY
, http://www.beachbody.com/ (last visited July 15, 2012) (identifying
insanity as “hardest fitness program ever put on DVD”).
3. See Katherine Machan, Bending over Backwards for Copyright Protection: Bikram
Yoga and the Quest for Federal Copyright Protection of an Asana Sequence, 12
UCLA E
NT
.
L. R
EV
. 29, 29 (2004) (acknowledging that yoga has existed for over 5,000 years).
4. See generally id. (describing history and legal battles of Bikram Yoga).
5. See Bikram Obtains Copyright Registration for His Asana Sequence,
B
IKRAM
Y
OGA
(July 30, 2003), http://www.bikramyoga.com/press/press19.htm (declaring per-
manent injunction banning use and exploitation of Bikram yoga “significant vic-
tory” in protection of Bikram’s copyright and trademark infringement).
6. See Suketu Mehta, A Big Stretch,
N.Y. T
IMES
, May 7, 2007, at A21, available at
http://www.nytimes.com/2007/05/07/opinion/07mehta.html (recognizing that
“US government has issued 150 yoga-related copyrights, 134 patents on yoga acces-
sories and 2,315 yoga trademarks,” amounting to $3 billion in America each year).
7. See Ellen Rosen, Yoga Pose Copyright Bid Too Big of a Stretch, Regulator Says,
B
USINESSWEEK
, Dec. 10, 2011, available at http://www.businessweek.com/news/
2011-12-12/yoga-pose-copyright-bid-too-big-of-a-stretch-regulator-says.html (an-
nouncing yoga “stretches and sequences are ‘exercises’ rather than ‘choreogra-
phy’” and thus no longer copyrightable).
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subject matter and sports movements are not classifiable as choreo-
graphic work.
8
Although the Office’s statement of policy was a step in the
right direction regarding copyrightable subject matter and compila-
tions, its argument about the classification of sports movements was
incomplete. Some athletic activities such as yoga and exercise
should not be copyrightable, but an argument can be made that
they do, in fact, fit within the Office’s own definition of a choreo-
graphic work. The Office could have better reinforced its state-
ment by examining policy considerations in addition to the
functionality doctrine. Furthermore, the Office’s characterization
of sports movements was overbroad and failed to distinguish be-
tween exercise-type routines and more creative works such as figure
skating routines and other routine-based athletics.
This article considers the arguments in opposition to the Of-
fice’s recent statement. It then considers the underlying policies
that support the Office’s statement and refutes oppositional argu-
ments. Further, it attempts to better differentiate between non-
copyrightable sports movements and more expressive athletic rou-
tines that are likely copyrightable.
Part II of this paper provides a background of copyrightable
subject matter.
9
It first briefly examines the Copyright Act and
identifies attempts found in case law to copyright sports and related
activities, including the Bikram yoga copyright. Part III considers
more closely how yoga and exercise routines have previously been
squeezed into classifications of choreography and compilations.
10
Part IV carefully examines the Office’s statement of policy regard-
ing compilations and sports movements.
11
It identifies where the
justifications in the statement are lacking and provides arguments
that could be used to refute the validity of the statement. Part V
then explains why, even though the Office provided a refutable ar-
gument about the classification of yoga and exercise routines, its
decision was in fact correct.
12
This Part considers policies and theo-
ries that justify copyright protection to explain that some, but not
all, athletic activities and sports movements should not be copy-
rightable. Finally, Part VI identifies a method of classifying these
8. Registration of Claims to Copyright, 77 Fed. Reg. 37,605 (June 22, 2012)
(to be codified at 37 C.F.R. pt. 201).
9. See infra notes 14-71 and accompanying text.
R
10. See infra notes 72-103 and accompanying text.
R
11. See infra notes 104-133 and accompanying text.
R
12. See infra notes 134-159 and accompanying text.
R
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activities into a spectrum of copyrightability.
13
It provides a distinc-
tion between uncopyrightable sports movements such as yoga and
exercise routines, and those that should be copyrightable such as
figure skating and gymnastics floor routines.
II. B
ACKGROUND
While one may not frequently consider the copyrightability of
sports and exercise routines, the topic has been contemplated often
since copyright was extended beyond books, maps and charts.
14
For example, in a 1938 decision, the Southern District of California
held that under the 1909 Copyright Act, an author’s copyright in a
book that described the rules and procedures for a roller derby
competition was not infringed when the format was copied for an
actual roller derby competition.
15
However, since that decision, the
Copyright Act of 1976 (“Act”) broadened copyrightable subject
matter considerably.
16
An understanding of that statute is neces-
sary before further considering any copyright in exercise routines
such as yoga.
A. Copyrightable Subject Matter
Article I, Section 8, Clause 8 of the U.S. Constitution provides
“[t]o promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries.”
17
This Clause has been
understood to give Congress great discretion “to determine the in-
tellectual property regimes that, overall, in that body’s judgment,
will serve the ends of the Clause.”
18
Accordingly, the word “author”
in this Clause has been interpreted to mean “he to whom anything
owes its origin; originator; maker; [or] one who completes a work
13. See infra notes 160-166 and accompanying text.
R
14. See generally Seltzer v. Sunbrock, 22 F. Supp. 621 (S.D. Cal. 1938) (holding
that reproducing description of roller derby rules and procedures was not viola-
tion of copyright); see also Hoopla Sports & Entm’t, Inc. v. Nike, Inc., 947 F. Supp.
347 (N.D. Ill. 1996); see also Baltimore Orioles, Inc. v. Major League Baseball Play-
ers Ass’n, 805 F.2d 663 (7th Cir. 1986); see also Nat’l Basketball Ass’n v. Motorola,
105 F.3d 841 (7th Cir. 1997).
15. See generally Seltzer v. Sunbrock, 22 F. Supp. 621 (S.D. Cal. 1938) (holding
that reproducing description of roller derby rules and procedures was not viola-
tion of copyright).
16. See generally 17 U.S.C. § 101 (2006) (defining literary works, motion pic-
tures, performances, graphic and sculptural works, and phonorecords as all exam-
ples of copyrightable material).
17.
U.S. C
ONST
.
art. I, § 8, cl. 8.
18. Eldred v. Ashcroft, 537 U.S. 186, 222 (2003).
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of science or literature.”
19
Furthermore, the Court has indicated
that the laws passed by Congress pursuant to this Clause should be
construed “fairly or even liberally.”
20
Thus, it is clear that copyright
in the United States has been applied broadly and with great ease
to many creations with increasing frequency and for increasing
terms.
21
Copyrightable subject matter is set forth in section 102 of the
Copyright Act, stating that protection exists “in original works of
authorship fixed in any tangible medium of expression, now known
or later developed, from which they can be perceived, reproduced,
or otherwise communicated, either directly or with the aid of a ma-
chine or device.”
22
The statute then indicates that “works of au-
thorship include . . .
(1) literary works;
(2) musical works . . . ;
(3) dramatic works . . . ;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures . . . ;
(7) sound recordings; and
(8) architectural works.”
23
The use of the word “include” here suggests that the list of works of
authorship is not all-encompassing. In fact, a House report indi-
cated that what Congress understood as worthy of copyright protec-
tion can change over time. “[T]he bill does not intend . . . to freeze
the scope of copyrightable subject matter at the present stage of
19. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).
20. Bauer & Cie v. O’Donnell, 229 U.S. 1, 10 (1913). Note, however, that this
case was decided long before copyright law was expanded under the 1976 act.
21. See generally 17 U.S.C. § 101 (detailing current copyright law). The 1790
act provided a 28 year copyright only for books, maps, and charts. In 1831, that
term was extended to 42 years. See Act of Feb. 3, 1831, 4 Stat. 436 (amending
copyright laws). The Copyright Act of 1909 extended the copyright term to 56
years. See Copyright Act of 1909, 35 Stat. 1075 (1909). Starting in 1962, a series of
laws were passed in anticipation of the upcoming copyright overhaul that ex-
tended the term of copyrights set to expire between September 19, 1962 and De-
cember 31, 1976 to the end of 1976. The Copyright Act of 1976 set the general
copyright term to the life of the author plus 50 years. See Copyright Act of 1976, 90
Stat. 2541 (1976) (amending copyright laws). The same statute eliminated the
requirement of registration. See id. (amending copyright laws). Finally, in 1998,
the Sonny Bono Copyright Term Extension Act brought the general term of a
copyright up to the life of the author plus 70 years. See Sonny Bono Copyright
Term Extension Act, 112 Stat. 2827 (1998) (amending copyright laws).
22. 17 U.S.C. § 102(a) (2012).
23. Id. (emphasis added).
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communications technology . . . . The historic expansion of copy-
right has . . . applied to forms of expression which, although in
existence for generations or centuries, have only gradually come to
be recognized as creative and worthy of protection.”
24
However,
the House report also warned that the statute does not intend “to
allow unlimited expansion into areas completely outside the pre-
sent congressional intent.”
25
So although athletic activities are not
expressly included in the statute’s list of enumerated works of au-
thorship, it is not beyond the realm of possibilities that such cre-
ations could be copyrighted.
The Act provides further insight into what may be copyright-
able in section 103, which states that “subject matter of copyright as
specified by section 102 includes compilations and derivative
works.”
26
The word “compilation” is defined as “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 author-
ship.”
27
Preexisting materials and data are unquestionably not copy-
rightable. Accordingly, by including compilations in the subject
matter of copyright, Congress has made it possible to receive pro-
tection for a creative grouping of uncopyrightable information.
Such a copyright is generally understood as being “thin,” how-
ever.
28
That is, the protection afforded to such a work will only
protect against exact or near-exact reproductions, and it does not
extend to the use of the individual pieces of information within the
compilation.
29
B. Copyright and Athletic Activity
While athletic activity is not one of the enumerated types of
copyrightable subject matter, the issue of the copyrightability of
athletic activity or sports has come up occasionally in the courts. As
previously mentioned, the Southern District of California held in
24. H
.R. D
OC
. N
O
. 94-1476, at 51 (1976).
25. Id.
26. 17 U.S.C. § 103 (2012).
27. § 101.
28. See generally 4
M
ELVILLE
B. N
IMMER
& D
AVID
N
IMMER
,
N
IMMER ON
C
OPY-
RIGHT
§ 13.03[A][4] (describing how shallow creativity, like that which produces a
compilation, is only entitled to shallow copyright protection).
29. See Feist Publ’ns., Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 349
(1991) (“Notwithstanding a valid copyright, a subsequent compiler remains free to
use the facts contained in another’s publication to aid in preparing a competing
work, so long as the competing work does not feature the same selection and
arrangement.”).
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Seltzer v. Sunbrock that a roller derby competition did not infringe
upon the copyright of the book that described the derby.
30
The
Sunbrock court noted that “protection is afforded, not to the ideas
therein expressed, but to the original wording, the distinctive word
order, the literary style in which the ideas are presented.”
31
As an
example of this, the court explained that an author may copyright
his description of the Battle of Gettysburg, but doing so would not
preclude future historians from describing the battle in their own
words.
32
The court further held that a description of an athletic
competition could not be copyrighted as a drama because it lacked
plot and characters.
33
Instead, the rules and procedures described
in plaintiff’s book were a “system,” which is something that can
never be copyrighted.
34
More recently, in Hoopla Sports & Entertainment v. Nike,
35
Hoopla Sports sued Nike for copying Hoopla’s “U.S. vs. The World”
all-star basketball game format.
36
But as with the rules in the roller
derby case, the all-star game format was merely an idea, and, as the
Supreme Court has held since its 1879 decision in Baker v. Seldon,
37
ideas cannot be copyrighted.
38
In dicta, the Hoopla court also men-
tioned that “it is doubtful whether a sports event is a copyrightable
work.”
39
That question—whether a sports event is a copyrightable
work—has been considered in at least two circuits. In the Seventh
Circuit case Baltimore Orioles v. Major League Baseball Players,
40
profes-
30. See Seltzer v. Sunbrock, 22 F. Supp. 621, 626 (S.D. Cal. 1938) (finding that
“[t]he official program of the defendants is in no way an infringement of plaintiff’s
copyrighted books.”).
31. Id. at 627 (explaining basis upon which copyright protection is legally
afforded).
32. See id. (“[I]f John Doe has copyrighted a description of the Battle of Get-
tysburg, he has not precluded any other historian from discussing or describing
the events of that battle. He has merely pre-empted the right to narrate the inci-
dents in that particular, original wording which he has employed. Another may
relate exactly the same incidents, but in different words, and not thereby infringe
the copyright, insofar as it covers a book, as such.”).
33. See id. at 628-29 (requiring story to contain “a thread of consecutively re-
lated events” to qualify as dramatic composition).
34. See id. at 630 (citing Baker v. Seldon, 101 U.S. 99 (1879)).
35. Hoopla Sports & Ent., Inc. v. Nike, Inc., 947 F. Supp. 347 (N.D. Ill. 1996).
36. See id. at 350 (describing Hoopla’s development of game theme of inter-
national peace and Nike sponsoring it).
37. Baker v. Seldon, 101 U.S. 99 (1879).
38. See id. at 101-02 (holding that books explaining well-known systems may
be copyrighted, but art book conveying or explaining may not be).
39. Hoopla, 947 F. Supp. at 354.
40. Baltimore Orioles v. Major League Baseball Players, 805 F.2d 663 (7th Cir.
1986).
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sional baseball players argued that their right of publicity interest in
their performances during games was not preempted by federal
copyright law because sporting events were not copyrightable sub-
ject matter.
41
While the court did not directly address whether the
game itself was subject to copyright law, it did hold that the telecast
of the game was copyrightable as an audiovisual work, and that the
players had no interest in that copyright because the telecast was a
work made for hire under 17 U.S.C. § 201(b).
42
It even went as far
as stating that the “[p]layers’ performances” contain the “modest
creativity required for copyright ability,” without explicitly stating
that the events themselves are copyrightable.
43
The Second Circuit considered more directly whether a sports
event is a copyrightable work in National Basketball Association v. Mo-
torola, Inc.
44
In that case, Motorola provided a service that would
display live scores and other information about NBA basketball
games based on the service provider’s observation of broadcasts of
those games.
45
NBA argued that this was an infringement of their
copyright in the games or the broadcast of those games.
46
The
court explained that the Copyright Act of 1976 “expressly af-
ford[ed] copyright protection to simultaneously-recorded broad-
casts of live performances such as sports events. Such protection
was not extended to the underlying events.”
47
It held that a sports
event is neither among the eight categories of “works of author-
ship” in section 102 of the Act, nor such an event similar or analo-
gous to any of the enumerated categories, and as such, should not
be protected by copyright law.
48
The Second Circuit disagreed with
41. See id. at 667-74 (reasoning that works made for hire are considered to be
work of employer unless expressly agreed upon otherwise under 17 U.S.C.
§ 201(b), therefore professional athletic performances in telecast are considered
work of team owner and players’ rights of publicity are preempted by owner’s tele-
cast copyrights).
42. See id. at 668 (listing tangibility, originality, and subject matter as require-
ments of copyrightable works and concluding that telecast meets those
requirements).
43. Id. at 669 n.7 (“That the Players’ performances possess great commercial
value indicates that the works embody the modicum of creativity required for
copyrightability.”).
44. Nat’l Basketball Ass’n v. Motorola, 105 F.3d 841 (7th Cir. 1997).
45. See id. at 843-44 (describing Motorola’s SportTrax pager service for dis-
seminating information about NBA games).
46. See id. at 845 (describing NBA’s assertions).
47. Id. (citations omitted).
48. See id. at 846 (“Section 102(a) lists eight categories of ‘works of author-
ship’ covered by the act, including such categories as ‘literary works,’ ‘musical
works,’ and ‘dramatic works.’ The list does not include athletic events, and, al-
though the list is concededly non-exclusive, such events are neither similar nor
analogous to any of the listed categories.”).
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the Seventh Circuit’s characterization of athletes’ creativity in sport-
ing events, stating:
[s]ports events are not ‘authored’ in any common sense of
the word. There is, of course, at least at the professional
level, considerable preparation for a game. However, the
preparation is as much an expression of hope or faith as a
determination of what will actually happen. Unlike mov-
ies, plays, television programs, or operas, athletic events
are competitive and have no underlying script. Prepara-
tion may even cause mistakes to succeed, like the broken
play in football that gains yardage because the opposition
could not expect it.
49
Ultimately, the Second Circuit concluded that if Congress had in-
tended for sports events to be protected by copyright, it would have
included them in the list of § 102 works of authorship.
50
These cases suggest that the underlying events in sports are not
copyrightable, but sports events are not entirely analogous to all
athletic activities, including exercise routines or competitive rou-
tine-based sports like figure-skating, which some authors have sug-
gested are in fact analogous to choreographic works.
51
That some choreographic works can be copyrighted is indispu-
table.
52
But in Miller v. Civil City of S. Bend,
53
the Seventh Circuit
considered whether exotic dancing could be protected as a choreo-
graphic work.
54
The court held that with or without clothing,
“dance as entertainment inherently embodies the expression and
communication of ideas and emotions” which are required for cop-
49. Id.
50. See id. at 847 (“Congress found it necessary to extend such protection to
recorded broadcasts of live events. The fact that Congress did not extend such
protection to the events themselves confirms our view that the district court cor-
rectly held that appellants were not infringing a copyright in the NBA games.”).
51. See, e.g., Karolina Jesian, Don’t Sweat It: Copyright Protection for Yoga . . . Are
Exercise Routines Next?, 5
C
ARDOZO
P
UB
. L. P
OL
’
Y
& E
THICS
J.
623 (2007) (distin-
guishing between sports events and scripted sports plays like yoga, and legal reper-
cussions); see also Jordan Susman, Your Karma Ran Over My Dogma: Bikram Yoga and
the (Im)possibilities of Copyrighting Yoga, 25
L
OY
. L.A. E
NT
. L. R
EV
.
245 (2005) (dis-
cussing copyrightability of Bikram yoga); see also Wm. Tucker Griffith, Beyond the
Perfect Score: Protecting Routine-Oriented Athletic Performances with Copyright Law, 30
C
ONN
. L. R
EV
. 675 (1998) (discussing unique qualities of routine-based athletic
performance, and legal implications).
52. See 17 U.S.C. § 102(a)(4) (2012) (listing works of authorship which qual-
ify for copyright protection).
53. Miller v. Civil City of S. Bend, 904 F.2d 1081 (7th Cir. 1990).
54. See id. at 1087 (explaining State’s concession that exotic dances can qual-
ify as protected expression if they are choreographed).
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yright protection.
55
Justice Holmes has stated that “[i]t would be a
dangerous undertaking for persons trained only to the law to con-
stitute themselves final judges of the worth of pictorial illustrations,
outside of the narrowest and most obvious limits.”
56
The Miller
court likewise held that “[a]ny attempt to distinguish ‘high’ art
from ‘low’ entertainment based solely on the advancement of intel-
lectual ideas must necessarily fail.”
57
Thus, whether the expression
embodies a particularly intellectual purpose is irrelevant to the cop-
yright analysis. As such, if exercise routines and other athletic activ-
ities fit among the “works of authorship” considered in § 102, they
most certainly may be copyrightable.
58
C. Bikram Yoga
Yoga is a form of exercise routine and meditation that has
been in existence for thousands of years.
59
Bikram Choudhury de-
veloped what came to be known as Bikram Yoga after recovering
from a knee injury at age seventeen.
60
Bikram Yoga is a sequence
of twenty-six postures, or asanas, that are performed in the same
order every time in a room heated above 100 degrees Fahrenheit.
61
Over the last decade, Bikram Yoga has grown greatly in popularity,
resulting in considerable economic success for its creator.
62
In 2003, Bikram Choudhury issued a press release indicating
that he had successfully copyrighted “his original work of author-
ship in his asana sequence of twenty-six postures and two breathing
exercises.”
63
The copyright is a compilation of otherwise un-
copyrightable asanas, creatively arranged in a specific sequence.
64
Bikram vehemently enforced this copyright registration, sending
55. Id.
56. Bleistein v. Donaldson Lithographing Co. 188 U.S. 239, 251 (1903).
57. Miller, 904 F. 2d at 1086.
58. See 17 U.S.C. § 102 (2012) (outlining general boundaries of copyright
protection).
59. See Machan, supra note 3, at 29 (“In some form or another, the practice of
R
yoga, with its roots in ancient India, has existed for over 5,000 years.”).
60. See id. (describing origins of Bikram Yoga).
61. See id. (“Bikram Yoga consists of twenty-six postures, conducted in pre-
cisely the same order each time, over a ninety minute period, in a room heated up
to 115 degrees.”).
62. See id. at 32 (describing rise in popularity of Bikram Yoga and associated
costs).
63. See Jacob C. Reinbolt, Bikram Obtains Copyright Registration for His Asana
Sequence,
B
IKRAM
Y
OGA
(Feb. 5, 2003), http://www.bikramyoga.com/press/press19.
htm (describing outcome of copyright infringement litigation).
64. See Open Source Yoga Unity v. Choudhury, No. C 03-3182 PJH, 2005 WL
756558, at *2-3 (N.D. Cal. Apr. 1, 2005) (summarizing position on contents of
compilation).
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out cease and desist letters to numerous infringers and claiming
that “[v]irtually all modifications or additions to the sequence will
constitute copyright infringement.”
65
Bikram used his copyright re-
gistration to his advantage in a civil suit between himself and an
unlicensed Bikram Yoga instructor.
66
The case eventually settled,
but according to Bikram, the confidential settlement vindicated his
rights and was a substantial legal victory for the Bikram Yoga
community.
67
In response to Bikram’s yoga copyright, Open Source Yoga
Unity (OSYU), a California organization, filed a lawsuit seeking a
declaratory judgment that Bikram’s copyright was invalid.
68
OSYU
argued that Bikram could not copyright his sequence of asanas be-
cause the poses were thousands of years old and therefore, a part of
the public domain.
69
Further, OSYU argued that yoga is a func-
tional routine that cannot be copyrighted.
70
The court was not con-
vinced. It stated that
what is at issue are two competing principles of copyright
law. On the one hand, copyright law does not protect fac-
tual or functional information, or information that is al-
ready in the public domain. On the other hand, copyright
law does extend protection to an arrangement of informa-
tion in the public domain assembled in a sufficiently crea-
tive fashion. The question at hand is how to reconcile
these two principles.
71
The court ultimately sidestepped the issue and determined that
whether the asanas were arranged in a sufficiently creative manner
to warrant copyright protection as a compilation was a question of
fact.
72
65. See Susman, supra note 51, at 249 (“Bikram issued cease and desist letters
R
to yoga studios throughout the world, threatening the studios with litigation if they
continued to violate his copyright.”) (citations omitted); see also Reinbolt, supra
note 63 (quoting press release).
R
66. See Choudhury v. Morrison, No. SA02-565, 3-12 (C.D. Cal. June 30, 2003),
available at http://yogaunity.org/law/law_downloads/exhibitA.pdf (recounting
position of case).
67. See Reinbolt, supra note 63 (summarizing outcome of settlement in
R
founder’s perspective).
68. See Open Source Yoga Unity, 2005 WL 756558, at *1 (“Plaintiff Open Source
Yoga Unity (“OSYU”) has filed a declaratory relief action, seeking a declaration
that Choudhury does not have valid copyright or trademark rights in a series of
yoga exercises he has compiled under the name ‘Bikram yoga.’”).
69. See id. at *2 (summarizing plaintiff’s argument against valid copyright).
70. See id. (continuing summary of plaintiff’s argument against copyright).
71. Id.
72. See id. at *4 (citing Swirsky v. Carey, 376 F.3d 841, 851 (9th Cir. 2004)).
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III. C
OPYRIGHTING
Y
OGA AND
E
XERCISE
R
OUTINES
In the words of the OSYU court, “[o]n first impression, it . . .
seems inappropriate, and almost unbelievable, that a sequence of
yoga positions could be any one person’s intellectual property,” yet
the issue is not so obvious.
73
This part examines how one might
construe the copyright act to afford protection to yoga and other
similar exercise routines.
There are a number of issues to consider when determining
the copyrightability of yoga and exercise routines. First, these ath-
letic activities are most closely related to choreographic works. If
they cannot be classified as choreographic works, then one might
argue that yoga and exercise routines could fall back on the protec-
tion of compilations like the Bikram example, at least prior to the
Office’s recent statement of policy. But even if yoga and other ex-
ercise routines can be contorted to fit within either of these catego-
ries, they must still overcome a number of issues, including
originality, the merger doctrine, and the functionality doctrine.
This part examines how yoga and exercise routines are affected by
each of these issues.
A. Yoga and Exercise as Choreography
When Congress passed the Copyright Act of 1976, it assumed
that pantomimes and choreographic works had “fairly settled mean-
ings.”
74
Despite failing to provide a definition for these works, the
House did indicate that “‘choreographic works’ do not include so-
cial dance steps and simple routines.”
75
This likely rules out the
Macarena and the waltz, but the term “simple routines” is not with-
out its own ambiguities.
In 1984, the Office picked up what Congress left undone, pro-
viding its own definition of choreographic works in the Compen-
dium II of Copyright Practices.
76
The Office states that
73. See id. at *2 (quoting court’s skepticism).
74. See
H.R. R
EP
. N
O
. 94-1476, at 53 (1976) (“The three undefined catego-
ries— ‘musical works,’ ‘dramatic works,’ and ‘pantomimes and choreographic
works’— have fairly settled meanings.”).
75. See id. at 54 (commenting that choreographic works “do not include social
dance steps and simple routines.”).
76. See
C
OPYRIGHT
O
FFICE
, C
OMPENDIUM
II
OF
C
OPYRIGHT
O
FFICE
P
RACTICES
,
§ 450, at 400-19 [hereinafter
C
OMPENDIUM
II
] (setting forth U.S. Copyright Of-
fice’s definition of choreographic works). As of this writing, the Compendium is
undergoing revision by the Copyright Office. For a summary of the Office’s priori-
ties as they pertain to the Compendium, see
U.S. C
OPYRIGHT
O
FFICE
,
P
RIORITIES
AND
S
PECIAL
P
ROJECTS OF THE
U
NITED
S
TATES
C
OPYRIGHT
O
FFICE
(2011), available at
http://www.copyright.gov/docs/priorities.pdf.
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[c]horeography is the composition and arrangement of
dance movements and patterns, and is usually intended to
be accompanied by music. Dance is static and kinetic suc-
cessions of bodily movement in certain rhythmic and spa-
tial relationships. Choreographic works need not tell a
story in order to be protected by copyright.
77
The Compendium further states that choreographic works need
not be presented in front of an audience to receive protection.
78
But they must be “more than mere exercises, such as ‘jumping
jacks’ or walking steps.”
79
In describing unprotectable social dance
steps and simple routines, the Office stated that the basic waltz step,
the hustle step, and the second position of classical ballet are not
copyrightable. However, this is not a restriction against the incor-
poration of social dance steps and simple routines, as such, in an
otherwise registrable choreographic work. Social dance steps, folk
dance steps, and individual ballet steps alike may be utilized as the
choreographer’s basic material in much the same way that words
are the writer’s basic material.
80
While the Office’s conclusions are not binding, the courts gen-
erally heed their recommendations as long as they are reasonable.
81
Based on this understanding, it is clear that a single yoga pose or
basic aerobic movement would not be copyrightable. At the same
time, a unique combination of ballet steps would almost certainly
be copyrightable as a choreographic work. Accordingly, a combina-
tion of basic aerobic movements or yoga postures, if combined in
some creative order and set to music would, at least on first glance,
fit quite comfortably into the definition as a “succession of bodily
movement” that is usually “accompanied by music.”
B. Yoga and Exercise as Compilations
Even if an exercise routine would not be classified as a choreo-
graphic work, it might be considered a compilation—notwithstand-
77. See
C
OMPENDIUM
II, supra note 76, § 450.01, at 400-19 (quoting definition
R
of choreographic works).
78. See id. § 450.02, at 400-19 (stating no performance in front of audience
required for protection of choreography).
79. See id. § 450.03(a), at 400-19 (indicating choreography must contain
unique characteristics).
80. See id. § 450.06 (declaring unprotectable dance steps may be included in
protectable choreographic works).
81. See, e.g., Horgan v. Macmillan, Inc., 789 F.2d 157, 161 (2d Cir. 1986) (en-
dorsing Copyright Office’s definition of “choreographic work” found in
C
OMPEN-
DIUM
II
).
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ing the Office’s recent statement. Section 101 of the Copyright Act
defines a compilation as “a work formed by the collection and as-
sembling of preexisting materials or of data that are selected, coor-
dinated, or arranged in such a way that the resulting work as a
whole constitutes an original work of authorship.”
82
Feist Publica-
tions, Inc. v. Rural Telephone Service Co. identified three elements re-
quired for copyrighting a compilation: “(1) the collection and
assembly of pre-existing material, facts, or data; (2) the selection,
coordination, or arrangement of those materials; and (3) the crea-
tion, by virtue of the particular selection, coordination, or arrange-
ment, of an ‘original’ work of authorship.”
83
Many works that would generally be considered choreographic
works probably fit more comfortably in this category. That is, a bal-
let is traditionally made up of a number of classic movements that
are not copyrightable alone not only because they are simple, but
also because they are already in the public domain.
84
But a ballet is
copyrightable, nonetheless, because it (1) assembles pre-existing
dance moves, and (2) arranges them into (3) an original work.
In OSYU, Bikram argued that his yoga routine was in fact copy-
righted as a compilation of asanas because he coordinated the pre-
existing postures in a new, original fashion.
85
And, apparently,
neither the court nor the Office opposed this argument at the
time.
86
But even if a yoga or exercise routine fits into this category,
or the category of choreographic works, there are still a number of
hurdles to clear in order to receive copyright protection.
C. Limitations on Copyrighting Yoga and Exercise Routine
1. Fixation and Originality
As previously mentioned, all copyrightable subject matter must
be an “original work of authorship fixed in any tangible medium of
82. See 17 U.S.C. § 101 (2006) (citing definition of compilation).
83. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 357 (1991) (detail-
ing Court’s three requirements for copyrighting compilations).
84. See Katie M. Benton, Can Copyright Law Perform the Perfect Fouett
´
e?: Keeping
Law and Choreography on Balance to Achieve the Purpose of the Copyright Clause, 36
P
EPP
.
L. R
EV
.
59, 79-80 (2008) (discussing relationship between public domain and Cop-
yright Clause).
85. See Open Source Yoga Unity v. Choudhury, C 03-3182 PJH, 2005 WL
756558, *1 (N.D. Cal. Apr. 1, 2005) (describing defendant’s argument that routine
was coordination of pre-existing moves in new way).
86. For further discussion, see infra notes 105-134 for a description of the
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Office’s new understanding of a compilation.
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expression.”
87
The fixation requirement is easily overcome. Simply
recording a routine on video is sufficient to fix the work.
88
Original-
ity, however, is not as straightforward.
As OSYU explained, originality is generally a question of fact.
89
But the standard is fairly low. In MLB, the Seventh Circuit held that
baseball players’ performances in a baseball game are sufficiently
creative to overcome the originality requirement, even though in
most instances they merely react to the movements of the ball and
other players.
90
The Feist court held that arranging names in alpha-
betical order was insufficiently original to garner copyright protec-
tion in a phonebook.
91
However, in another case the court held
that a phone book that selected business based on their interest to a
Chinese community was sufficiently original.
92
It seems then, that
some arrangements of simple exercise steps could satisfy the origi-
nality requirement.
2. Idea/Expression Dichotomy & the Merger Doctrine
The idea/expression dichotomy, which is similar to the merger
doctrine, was first discussed in the nineteenth century case Baker v.
Selden.
93
In that case, the plaintiff, Selden, attempted to enforce a
copyright in relation to a book that described a method of book-
keeping and included copies of a number of bookkeeping forms.
94
Selden attempted to enjoin another from selling a book that in-
cluded very similar forms.
95
The court held that “there is a clear
distinction between the book, as such, and the art which it is in-
87. See 17 U.S.C. § 102(a) (2012) (explaining criteria for copyrightable
material).
88. See 17 U.S.C. § 101 (2012) (stating that work is fixed “if it is in a form that
is sufficiently permanent or stable to permit it to be perceived, reproduced, or
otherwise communicated for a period of more than transitory duration.”).
89. See Open Source Yoga Unity, 2005 WL 756558, at *4 (citing Swirsky v. Carey,
376 F.3d 841, 851 (9th Cir. 2004)) (trier of fact determines originality of work).
90. See Baltimore Orioles, Inc. v. Major League Baseball Players Ass’n, 805
F.2d 663, 676 (7th Cir. 1986) (finding that “[r]egardless of the creativity of the
Players’ performances, the works in which they assert rights are copyrightable
works which come within the scope of § 301(a) because of the creative contribu-
tion of the individuals responsible for recording the Players’ performances.”).
91. See generally Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340
(1991) (holding that white pages did not meet constitutional for copyright
protection).
92. See Key Publ’ns, Inc. v. Chinatown Today Pub. Enters., 945 F.2d 509 (2d
Cir. 1991) (applying Feist).
93. See 101 U.S. 99 (1879) (holding that blank account-books are not subject
of copyright).
94. See id. at 100 (stating that defendant utilized similar method of bookkeep-
ing as system created by plaintiff).
95. See id.
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tended to illustrate.”
96
In other words, the book is copyrightable,
and an exact duplication of the book would have been copyright
infringement, but the system described in the book is not copyright-
able because it is merely an idea. Ideas cannot be copyrighted.
Such a system might be protectable under patent law, but not
under copyright.
97
The Ninth Circuit explains merger like this: “[w]hen the ‘idea’
and its expression are . . . inseparable, copying the ‘expression’ will
not be barred, since protecting the ‘expression’ in such circum-
stances would confer a monopoly of the ‘idea’ upon the copyright
owner free of the conditions and limitations imposed by the patent
law.”
98
William Patry explains that if the merger doctrine applies,
then the expression cannot possibly be considered original in the
first place.
99
These doctrines present only minor trouble for athletic activi-
ties. Any copyright in a yoga or exercise routine would be thin to
begin with because of its nature as a compilation.
100
But the idea/
expression dichotomy and merger doctrine would really only limit
one’s interest in a specific motion or posture. A combination of
motions or postures that is sufficiently robust would not be further
thinned by these doctrines. That is, the idea of yoga or exercise is
moving the body in certain ways to achieve physical, mental, and/or
psychological fitness. Because this can theoretically be achieved by
any number of combinations of motions and postures, a single rou-
tine that expresses this idea is not precluded from copyright protec-
tion based on these doctrines.
3. Functionality Doctrine
Section 102(b) of the Copyright Act indicates that protection
does not “extend to any idea, procedure, process, system, method
96. See id. at 102 (elaborating on idea that treatise referencing act does not
copyright act itself).
97. See id. at 103 (finding that plaintiff “must obtain a patent for the mixture
as a new art, manufacture, or composition of matter.”).
98. Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir.
1971).
99. See 2
P
ATRY ON
C
OPYRIGHT
§ 4:46 (describing history of merger doctrine
and its limited applicability).
100. See 17 U.S.C. § 103(b) (2012) (“The copyright in a compilation or deriv-
ative 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.”).
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of operation, concept, principle, or discovery.”
101
In other words, if
a workout routine is considered a method of operation or proce-
dure for achieving fitness, it might not be copyrightable. However,
in Mazer v. Stein, the Supreme Court held that functional aspects
may be severable from non-functional aspects.
102
Further, the
Ninth Circuit has held that “[t]he theory that the use of a copy-
righted work of art loses its status as a work of art if and when it is
put to a functional use has no basis in the wording of the copyright
laws.”
103
This suggests that a routine may be both functional and
expressive. In the case of Bikram Yoga, Bikram has described his
routine as “the only ‘safe and lasting way to cure, or relieve the
symptoms of chronic ailments and achieve total health.’”
104
This
description makes his routine seem dangerously like an un-
copyrightable “system,” and illustrates the importance of how one
describes his or her work when attempting to maneuver the copy-
right act.
The fact is, though, that in order to develop a strong exercise
routine, its creator needs to describe it to the public as a routine
using text that will ultimately make it seem more like a process or
system than a form of expression. Consequently, this could make it
very difficult to receive any copyright protection. This, in conjunc-
tion with a court’s adoption of the Office’s updated understanding
of a compilation, as described below, will likely preclude any future
protection for yoga or other exercise routines.
IV. A N
EW
U
NDERSTANDING OF
“C
OMPILATION
”
A. The U.S. Copyright Office Statement of Policy on
Registration of Compilations
1. Redefining “Compilation”
On June 22, 2012, the Office issued “a statement of policy to
clarify its examination practices with respect to claims in ‘compila-
101. 17 U.S.C. § 102(b) (2012).
102. See Mazer v. Stein, 347 U.S. 201 (1954) (finding that statuettes, utilized as
table lamps, were copyrightable works of art).
103. Rosenthal v. Stein, 205 F.2d 633, 635 (9th Cir. 1953).
104. See Michael J. Thomas, The OSYU v. Bikram Choudhury Copyright Case: Ana-
lytical Approaches to Fleshing Out A Paper Tiger, 10
I
NTELL
. P
ROP
. L. B
ULL
. 31, 44
(2005) (quoting OSYU’s Motion for Partial Summary Judgment on Claim I – Copy-
right, 2 (17 U.S.C. § 102) at 2, Open Source Yoga Unity v. Bikram Choudhury, No.
C 03-3182 PJH, 14 (N.D. Cal. Dec. 15, 2004)).
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tion authorship.’”
105
The statement indicates that the definition of
a compilation, which is found in § 101 of the Copyright Act, when
viewed in light of §§ 102 and 103 of the Act suggests that in order to
be copyrighted, a compilation must fit within one of the eight cate-
gories of copyrightable subject matter listed in § 102.
106
Based on
the plain meaning of the text, the Office provides a fairly compel-
ling argument for this new interpretation.
Section 103(a) states that “the subject matter of copyright as
specified by section 102 includes compilations.”
107
“Compilation” is
defined in § 101 as “a work formed by the collection and assem-
bling of preexisting materials or of data that are selected, coordi-
nated, or arranged in such a way that the resulting work as a whole
constitutes an original work of authorship.”
108
Finally, § 102 provides a
list of categories that can constitute a work of authorship.
109
Conse-
quently, a compilation must arrange information in such a way to
fit within one of the categories specified in § 102—”Section 103
makes it clear that compilation authorship is a subset of the section
102(a) categories, not a separate and distinct category.”
110
The greatest concern with this deduction is that § 102 in-
troduces the list of eight categories of works of authorship with the
word “include.”
111
This suggests – and the Office’s statement rec-
ognizes – that the list is not all-encompassing. But the statement
indicates that this problem is solved by considering the legislative
history.
112
The legislative history, according to the Office, suggests
that “[t]he flexibility granted to the courts is limited to the scope of
the categories designated by Congress in section 102(a). Congress
did not delegate authority to the courts to create new categories of
authorship. Congress reserved this option to itself.”
113
105. See Registration of Claims to Copyright, 77 Fed. Reg. 37,605, 37,605
(June 22, 2012) (to be codified at 37 C.F.R. pt. 201) (clarifying practices and poli-
cies relating to copyright authorship claims).
106. See id. (detailing categories of copyrightable subject matter).
107. 17 U.S.C. § 103(a) (2012) (emphasis added).
108. 17 U.S.C. § 101 (2012) (emphasis added).
109. See 17 U.S.C. § 102 (2012) (including literary works, musical works, dra-
matic works, etc).
110. Registration of Claims to Copyright, 77 Fed. Reg. at 37,606.
111. See § 102 (outlining list of categories which constitute “a work of
authorship”).
112. See Registration of Claims to Copyright, 77 Fed. Reg. at 37,606 (discuss-
ing legislative history of Copyright Act).
113. Id. at 37,607.
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2. Athletic Activities Under the New Definition
Next, the Office goes on to explain that a copyright in a compi-
lation of public domain yoga asanas would be invalid under this
new understanding, and that those registrations approved in the
past were a mistake.
114
The argument here is slightly less compel-
ling. The Office points out the obvious fact that one cannot copy-
right a physical collection of rocks or an arrangement of hand
tools.
115
Likewise, according to the Office, one cannot copyright an
“arrangement of preexisting exercises, such as yoga poses” because
“[e]xercise is not a category of authorship in section 102.”
116
So,
while a compilation of photos or textual descriptions of yoga poses
would be copyrightable subject matter, that copyright would not ex-
tend to the actual performance of the exercises themselves.
117
However, the Office does not touch on the fact that a copy-
right in a literary work affords its owner with the exclusive right to
perform the work publicly. While this does not visibly provide the
copyright owner with an exclusive right to “act out” the literary
description of yoga poses, e.g., or compilation thereof, there is an
argument to be made that it does. As discussed above, one court
has ruled that performing a sporting event for which the rules are
described in a copyrighted book is not an infringement, but that
case did not consider a literal performance of the exact sequence of
events described in the literature.
118
Case law indicates that a copy-
right extends from one medium to another. In Horgan v. McMillan,
the plaintiff was able to enjoin the defendant from publishing a
series of photographs depicting a copyrighted ballet.
119
The court
reasoned by way of Judge Hand’s “ordinary observer” test that the
photographs were substantially similar to the ballet.
120
Though it
114. See id. (“[U]nder the policy stated herein, a claim in a compilation of
exercises or the selection and arrangement of yoga poses will be refused
registration.”).
115. See id. (noting that collection of photographs of rocks are incapable of
being registered as compilation of pictorial works).
116. See id. (“Exercise is not a category of authorship in section 102 and thus a
compilation of exercises would not be copyrightable subject matter.”).
117. See id. (noting that per statutory definition of “compilation,” “sufficiently
creative selection, coordination or arrangement of public domain yoga poses”
would be “copyrightable as a compilation of such poses or exercises” but that statu-
tory definition is not meant to be taken in isolation).
118. See supra notes 35-39 and accompanying text.
R
119. See Horgan v. Macmillan, Inc., 789 F.2d 157, 162 (2d Cir. 1986) (holding
that district court erred in applying wrong test and finding that no recreation was
possible instead of determining whether photographs were “substantially similar”).
120. See Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d
Cir.1960) (“[T]he ordinary observer, unless he set out to detect the disparities,
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may be a stretch to claim that an ordinary observer would consider
the aesthetic appeal of a performance of a series of yoga asanas to
be substantially similar to a literary description of such, the Office
did not adequately address why such an argument might fail.
121
Nonetheless, the Office does address the analogy between an
exercise routine and a choreographic work. It reasons that because
Congress indicated that “social dance steps and simple routines” do
not fall within the category of choreographic works, a compilation
of exercise movements would not fit in that category.
122
However,
without a bright-line rule indicating the distinction between a “sim-
ple routine” and something more complicated, this argument is not
helpful. The Office explains:
[a] compilation of simple routines, social dances, or even
exercises would not be registrable unless it results in a cat-
egory of copyrightable authorship. A mere compilation of
physical movements does not rise to the level of choreo-
graphic authorship unless it contains sufficient attributes
of a work of choreography. And although a choreo-
graphic work, such as a ballet or abstract modern dance,
may incorporate simple routines, social dances, or even
exercise routines as elements of the overall work, the mere
selection and arrangement of physical movements does
not in itself support a claim of choreographic
authorship.
123
The Office further provides:
[a] claim in a choreographic work must contain at least a
minimum amount of original choreographic authorship.
Choreographic authorship is considered, for copyright
purposes, to be the composition and arrangement of a re-
would be disposed to overlook them, and regard their aesthetic appeal as the
same.”); see also Horgan, 789 F.2d at 162 (stating correct test is that articulated by
Judge Learned Hand in Peter Pan).
121. See Registration of Claims to Copyright, 77 Fed. Reg. 37,605, 37,607 (pro-
posed June 22, 2012) (to be codified at 37 C.F.R. pt. 201) (supporting that though
strongest opposing argument might be that performance of series of yoga asanas is
actually “procedure” or “system,” and therefore not subject to copyright according
to § 102(b), which is addressed independently, later in Office’s statement).
122. See id. (quoting
H.R. R
EP
.
94-1476, at 54 (1976)) (“Congress has stated
that the subject matter of choreography does not include “social dance steps and
simple routines.”).
123. Id.
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lated series of dance movements and patterns organized
into an integrated, coherent, and expressive whole.
124
But the Office’s own definition of dance would certainly in-
clude a series of yoga asanas, and U.S. courts have long held that
“the requisite amount of creativity for copyright is extremely
low.”
125
The Office’s circular reasoning often leaves the reader
unconvinced.
Finally, the Office discusses the functionality aspect of yoga
and exercise routines: “[t]he Copyright Office takes the position
that a selection, coordination, or arrangement of functional physi-
cal movements such as sports movements, exercises, and other ordi-
nary motor activities alone do not represent the type of authorship
intended to be protected under the copyright law as a choreo-
graphic work.”
126
The Office states that because these routines are
said to improve one’s health, they are a “functional system or pro-
cess,” even though they may be aesthetically appealing.
127
The Office fails, however, to consider the severability of func-
tion from aesthetics as discussed in Mazer v. Stein.
128
As any copy-
right on a choreographic compilation would be thin, the author of
such routines would not own exclusive rights in the use of the indi-
vidual poses to improve one’s health; he would merely have a copy-
right in performing a very specific series of poses (provided the
series is sufficiently complicated—a threshold that no one has at-
tempted to define yet). Further, the subject matter of a work of
authorship should not hinge solely on claims its author makes. Just
because Bikram claimed that his form of yoga is the only “safe and
lasting way to cure, or relieve the symptoms of chronic ailments and
achieve total health” does not make it so.
129
An author of a self-
help book may claim that reading his book is the only way to en-
124. Id.
125. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991)
(holding that names and other such information of utility’s subscribers are facts
and thus not protected under copyright); see also supra notes 76-80 (“Dance is static
R
and kinetic successions of bodily movement in certain rhythmic and spatial
relationships”).
126. Registration of Claims to Copyright, 77 Fed. Reg. 37,605, 37,607 (June
22, 2012) (to be codified at 37 C.F.R. pt. 201).
127. See id. (stating that functional processes that improve health are not
copyrightable).
128. See Mazer v. Stein, 347 U.S. 218 (1954) (quoting Stein v. Rosenthal, D.C.,
103 F. Supp. 227, 231 (S.D. Cal. 1952)) (“[A]rtistic articles are protected in ‘form
but not their mechanical or utilitarian aspects.’”).
129. See supra note 104 and accompanying text.
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lightenment, but such a claim does not make the book a system, per
se—the text of the book would still be copyrightable.
The Office’s statement seems even less convincing when it
comes to exercise routines that resemble dance, such as Alberto
Perez’s Zumba. Zumba is a form of aerobics that incorporates
Latin dance moves.
130
While Perez has not attempted to copyright
Zumba and “does not charge licensing fees” to teach classes, a set
Zumba routine would look more like a choreographic work than
yoga does, but the Office’s argument applies equally because it
functions to improve one’s health.
131
3. Beyond Exercise
The Office’s statement about “sports movements” is quite
broad. Even assuming the statement is right about yoga and exer-
cise routines, it leaves little room for the copyrightability of routine-
based athletic events such as figure skating, competitive cheerlead-
ing, or gymnastic floor routines. While these athletic events are
sporting events like the basketball game in NBA, and they incorpo-
rate “sports movements,” they should be distinguished from head-
to-head competitions and mere exercise routines.
The gymnastics floor routine incorporates music with a num-
ber of tumbling movements accompanied by various dance ele-
ments that show agility, flexibility, and even personality.
Cheerleading, likewise, includes much of the same elements but is
generally performed as a team, requiring even more complicated
choreography. Finally, figure skating involves a number of athletic
movements and dance moves set to music, often incorporating cos-
tumes and lighting. But each event also serves a functional purpose
in that the choreography is intended to achieve the highest score at
a competitive event, and performing the events most certainly im-
proves the health of the performer just as a choreographed exercise
routine does.
In NBA, the Second Circuit indicated that sports events are not
a copyrightable subject matter.
132
However, that court obviously
130. See About Zumba Fitness,
Z
UMBA
F
ITNESS
, http://www.zumba.com/en-US/
about/ (last visited Dec. 1, 2012) (summarizing history and philosophy of Zumba
Fitness).
131. See Amber Parcher, Zumba Shakes the Monotony Out of Ordinary Aerobics
Classes,
W
ASH
. P
OST
, July 31, 2008, at GZ05, available at http://www.washington
post.com/wp-dyn/content/article/2008/07/30/AR2008073001580.html (describ-
ing enjoyable differences between Zumba and other forms of aerobics).
132. See Nat’l Basketball Ass’n v. Motorola, Inc., 105 F.3d 841, 846 (2d Cir.
1997) (“Sports events are not ‘authored’ in any common sense of the word.”).
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had a certain kind of sports event in mind: head-to-head competi-
tions like basketball or baseball. No court has addressed the
copyrightability of a figure-skating routine. But figure-skating rou-
tines that are virtually identical to those used in competition are
also used during professional tours that have no competitive ele-
ment and are merely meant to entertain.
133
Surely, a choreo-
graphic work of figure-skating at such an event would be subject to
copyright protection, so copyright should seemingly also extend to
the routine used in competition.
134
But both are a compilation of
“sports movements” under the Office’s statement of policy. It is
possible that the incorporation of music and costume would be
enough “choreographic authorship” to satisfy the Office’s new
statement, but the Office failed to indicate such, leaving the distinc-
tion between athletic activity and dance quite vague.
In the current climate of unrestricted promulgation of copy-
right protection, the Office’s statement limiting the applicability of
copyrights is commendable. It may even be sound. But without
further argument from the Office, the statement is left wanting in
clarity and not entirely convincing.
V. S
HOULD
E
XERCISE
B
E
C
OPYRIGHTABLE
?
As the OSYU court indicated “[o]n first impression, it . . . seems
inappropriate, and almost unbelievable, that a sequence of yoga po-
sitions could be any one person’s intellectual property.”
135
Also,
despite the argument presented above in contrast to the Office’s
statement of policy, the inappropriateness of a copyright for yoga
and similar exercises still holds true. If the Copyright Office had
considered various policy considerations and examined copyright
justification theory, it may have presented a stronger case against
such copyrights. This Part examines policy considerations that sup-
port foreclosing such protections. Then it will analyze various intel-
lectual property theories as applied to yoga and exercise routines to
explain why such copyrights are inappropriate notwithstanding
their choreographic nature.
133. See Griffith, supra note 51, at 678 (discussing idea that exercise routines
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or competitive routine-based sports, e.g., figure skating, are similar to choreo-
graphic works).
134. For more discussion on the copyrightability of routine-based athletics,
see Griffith, supra note 51; see also William J. Fishkin, Next on Floor Exercise, Domi-
R
nique Dawes(c): The Difficulties in Copyrighting Athletic Routines, 11
S
ETON
H
ALL
J.
S
PORT
L
. 331 (2001).
135. Open Source Yoga Unity v. Choudhury, No. C 03-3182, 2005 WL 756558,
at *2 (N.D. Cal. Apr. 1, 2005).
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A. Policy Considerations
1. Restriction on Fitness
The primary policy consideration that should discourage al-
lowing copyrights in exercise routines is that it would limit an indi-
vidual’s options to improve his or her own fitness. Issuing a
copyright can lead to an over-enforcing of that right, as has been
seen with Bikram. Even if Bikram’s copyright was valid prior to the
Office’s recent statement, it was certainly a thin protection and did
not afford him all the rights he has claimed.
136
A copyright gives its owner an exclusive right to perform the
work publicly.
137
Courts have interpreted “public” quite broadly to
include private viewing rooms in a public store.
138
Applied to exer-
cise routines, this understanding of public performance would pre-
clude an individual from performing a copyrighted exercise in a
gym. That person may still have the option of performing the exer-
cise in his or her own home, however.
Copyrights also ensure exclusive rights of reproduction.
139
This reproduction right would likely foreclose the option of record-
ing oneself performing a copyrighted exercise, as the recording
would be substantially similar to the original. This makes one won-
der about a video camera in a gym where the exercise is being per-
formed (legally or illegally). Arguably, that recording could be an
inadvertent copyright infringement on the part of the gym. These
imposing restrictions would contradict the public policy of encour-
aging healthy behavior.
2. Issues in Broadcasting
If athletic routines or exercises were copyrightable, then a tele-
vision channel interested in broadcasting such routines would have
more cumbersome licensing issues with which to deal. In Coleman
v. ESPN,
140
a music publisher sued ESPN for copyright infringe-
136. See Jacob C. Reinbolt, Press Release of July 30, 2003
, B
IKRAM
Y
OGA
(July 30,
2003), http://www.bikramyoga.com/press/press19.htm (claiming that all similar
forms of yoga were infringement of Bikram copyright).
137. See 17 U.S.C. § 106 (2012) (enumerating exclusive rights of copyright
owners).
138. See Columbia Pictures Indust. v. Redd Horne, 749 F.2d 154 (3d Cir.
1984) (holding that “transmission of a performance to members of the public,
even in private settings such as hotel rooms or Maxwell’s [store] viewing rooms,
constitutes a public performance”).
139. See 17 U.S.C. § 106 (2012) (enumerating exclusive rights of copyright
owners).
140. See 764 F. Supp. 290 (1991) (discussing music publisher’s copyright in-
fringement suit against ESPN).
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ment when it broadcast a cheerleading competition that included a
routine featuring the publisher’s song.
141
While the court never
determined whether such a use was an infringement, the case hints
at the troubles that might be encountered if athletic routines are
copyrighted.
If every gymnastics routine at the 2012 Olympics had been
copyrighted by its creator, NBC would have been forced to seek
licenses to broadcast each one. This requirement would be further
complicated by the fact that it is an international competition, fea-
turing gymnasts from numerous countries with numerous different
copyright laws. It would obviously create a headache for NBC. Nev-
ertheless, the cumbersome nature of licensing is no excuse for pre-
cluding copyright protection. Anyone who has attempted to wade
through the restrictions governing copyrights in musical recordings
knows this all too well.
3. Fair Use
Fair use is a confusing and unpredictable doctrine.
142
Apply-
ing the fair use doctrine might solve the above-mentioned issues;
but then again, they might not.
The fair use doctrine allows an individual to use copyrighted
material in certain situations in a way that would normally be an
infringement of the owner’s rights.
143
Those situations include
“criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research.”
144
However,
this list is not exclusive. In determining if a use is fair under this
doctrine, one must consider four factors:
(1) the purpose and character of the use, including
whether such use is of a commercial nature or is for non-
profit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
141. See id. (concluding that factual issues, disputing whether copyright tak-
ing was substantial and if it could hurt market value of copyrighted work, barred
summary judgment).
142. See Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939)
(identifying copyright as “the most troublesome doctrine in the whole law of
copyright”).
143. See 17 U.S.C. § 107 (2012) (listing limitations on exclusive rights).
144. See id. (listing factors to consider when deciding whether something is
fair use).
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(4) the effect of the use upon the potential market for, or
value of, the copyrighted work.
145
Unfortunately, these factors have not proven to be terribly use-
ful, as courts apply the doctrine inconsistently.
This doctrine would not be of any use for the issues that would
accompany broadcasting if athletic routines were copyrightable.
Such broadcasts are commercial, and, generally, show the whole
routine. The thin nature of an athletic copyright would weigh in
favor of the broadcaster, but the other factors would not. Accord-
ingly, broadcasters would not be able to rely on this doctrine.
It is more likely, however, that fair use would apply to personal
exercise. While an instructor teaching a copyrighted routine to a
paying class of students would likely not fit into fair use, a student in
that class might. The student’s use is not commercial in nature,
and it is not completely obvious that his or her use of the exercise
would have any significant impact on that market of the work. This,
in conjunction with the fact that the copyright on an exercise rou-
tine is inherently thin, would provide a strong argument for fair
use; however, no fair use argument is a sure thing.
To conclude, a number of policy issues point away from afford-
ing copyright in athletic routines that are at least partially func-
tional, as well as—though to a lesser degree—routine-oriented
sports. However, none of these arguments were considered in the
Office’s statement on the copyrightability of athletic activity.
B. Copyright Theory
While the intellectual property clause of the U.S. Constitution
is generally understood to incorporate an economic utilitarian justi-
fication for the near-monopolies it confers to authors, scholars have
identified numerous other theories that could justify copyright,
some of which are often considered by lawmakers and courts.
146
These theories include labor theory, personality theory, and what is
sometimes called distributive justice theory. Each will be briefly
considered below.
1. Utilitarian Theory
Judge Richard Posner and Professor William Landes state that:
145. Id.
146. See
U.S. C
ONST
. art. I, § 8, cl. 8 (providing patents and copyrights clause);
see generally William M. Landes & Richard A. Posner, An Economic Analysis of Copy-
right Law, 18
J. L
EG
. S
TUD
. 325 (1989) (discussing how copyright law can be ex-
plained as “means of promoting efficient allocation of resources.”).
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[a] distinguishing characteristic of intellectual property is
its “public good” aspect. While the cost of creating a work
subject to copyright protection . . . is often high, the cost
of reproducing the work, whether by the creator or by
those to whom he has made it available, is often low . . . .
Copyright protection . . . trades off the costs of limiting
access to a work against the benefits of providing incen-
tives to create the work in the first place.
147
This is the foundational basis of the utilitarian theory of copy-
right. Put simply, copyright should only be afforded to an author of
a work if that work requires some incentive to offset the cost of
creating.
So the question is: does the creator of an original exercise rou-
tine require protection of that routine as incentive to create it?
Probably not. In the case of Bikram Yoga, Bikram created his rou-
tine without any expectation of monetary gain. In fact, he initially
offered his classes for free.
148
Since the idea of copyrighting a new
exercise routine is such a foreign concept, most routines are likely
created without even considering copyright. If copyright is part of
the incentive, it is in the copyright of the video or the literature that
explains the routine. The copyright in an exercise video, which
merely controls reproduction and display of that video, is probably
enough incentive to create a new workout routine. This is evident
based on the number of workout videos and exercise fads that
come and go with time.
The answer is likely similar, though less convincingly so, for
routine-based sports. The incentive to create a figure skating rou-
tine is based on the desire to win the competition, and the disincen-
tive to copy is driven by community norms—a figure skater who
copies another’s performance would surely be shunned by the fig-
ure skating community. However, when those skating routines
transition into non-competitive performances, some incentive is
needed to create new routines. Non-competitive routine-based
sports performances are much more analogous to a dramatic per-
formance or a ballet, which have long been justified for copyright-
ability under the utilitarian theory.
147. See id. at 326 (discussing “public good” aspect of copyright law).
148. See Susman, supra note 51, at 245 (explaining how Bikram Choudhury
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learned and taught yoga in its initial stages).
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2. Labor Theory
The labor theory of intellectual property is based primarily on
the philosophy of John Locke found in Two Treatises of Govern-
ment.
149
Though this theory has largely been disregarded as a justi-
fication for basic copyright law in the United States, it is,
nonetheless, one of the most prominent theories for general prop-
erty law, and frequently referenced when considering copyright
policy.
150
At its most basic level, this theory suggests that a person
deserves a copyright in his or her creation because of the labor he
or she put into that creation.
151
Under this interpretation, it would
seem that the creator of a specific exercise routine should have a
copyright in that routine because of the work he or she put into
creating it, but the Supreme Court has rejected this as a justifica-
tion for copyright. Labor theory may apply to patent law, but copy-
right requires more than just “sweat of the brow.”
152
Furthermore, a more nuanced interpretation of Locke’s labor
theory might suggest that exercise routines should not be protected
by intellectual property of any kind.
153
Professor Shiffrin explains
that labor theory requires a determination of whether the property
is the kind of thing that warrants ownership,
154
and it is not obvious
that a copyright in a workout routine would qualify. Also, Locke’s
theory has two provisos that must be met to justify individual owner-
ship of property: (1) one’s property (the fruit of his labor) must be
included in the commons for others to improve upon unless remov-
ing it would leave “enough and as good” in common for others to
use; and (2) property should not be wasted.
155
Applying these
provisos to workout routines makes it harder to justify copyright
protection. By taking an effective workout routine out of the public
domain, it makes it more difficult for the public to improve their
fitness. This is a strong argument against copyright protection for
exercise routines.
149. See
J
OHN
L
OCKE
, T
WO
T
REATISES OF
G
OVERNMENT
(1689) (discussing John
Locke’s labor theory of intellectual property).
150. See Feist Publ’ns., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 354 (1991)
(rejecting “sweat of the brow” doctrine of copyright).
151. See Justin Hughes, The Philosophy of Intellectual Property, 77
G
EO
. L.J.
287,
297 (1988) (explaining Locke’s property theory).
152. See Feist, 499 U.S. at 354 (discussing differences between burden for copy-
right law as opposed to patent law).
153. See generally Seana Valentine Shiffrin, Lockean Arguments for Private Intellec-
tual Property, in
N
EW
E
SSAYS IN THE
L
EGAL AND
P
OLITICAL
T
HEORY OF
P
ROPERTY
138
(Stephen R. Munzer ed., 2001) (discussing Locke’s labor law).
154. See id. at 146-47 (discussing one view of labor theory).
155. See Shiffrin, supra note 153, at 146-47 (noting Locke’s provisos).
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As for routine-based athletics, by taking the functional aspect
out of the picture, it seems more logical to provide protection to a
routine’s creator. Still, the problem that the Supreme Court has
rejected this theory for copyright still exists.
156
Therefore, any at-
tempt to justify a copyright law of any kind under the labor theory
may prove futile.
3. Personality Theory
Personality theory is the basis for copyright in much of Europe,
and is based on the philosophy of Georg Wilhelm Friedrich
Hegel.
157
Hegel’s basic argument was that a person’s creations are
an extension of their self, and, therefore, that person should have a
degree of control over those creations.
158
This may be the strong-
est justification for copyrighting exercise routines, as it is generally
favorable to strong intellectual property rights. The goal of copy-
right under this theory, however, is not to promote monetary gains.
Instead, personality theory values recognition and integrity.
159
If a copyright can only be justified by personality theory, then
the economic rights of reproduction, display, and public perform-
ance are likely still impossible to justify. Moral rights that ensure
that a creator’s name accompanies the work and that the work is
not attributed to the creator if its integrity is changed are, however,
justifiable. Accordingly, it may be reasonable to provide moral
rights to the creator of an exercise routine, but these rights would
not give him the option to enjoin others from performing his rou-
tine. Furthermore, there is no vehicle in U.S. law that allows for
moral rights outside of the economic rights of copyright.
The argument for routine-based sports is similar. A gymnast’s
floor routine is certainly an expression of her personality. As such,
it deserves protection under this theory. Furthermore, the fact that
such a performance is not so clearly precluded by utilitarian theory
strengthens the argument for the copyrightability of routine-based
sports.
156. See Feist, 499 U.S. at 354 (discussing Supreme Court’s rejection of labor
theory). The athletic performance may be functional to the athlete, but to every-
one else, it serves primarily as entertainment, which is not generally understood to
be function as it pertains to 17 U.S.C. § 102(b). See id.
157. See generally Margaret Jane Radin, Property and Personhood, 34
S
TAN
. L. R
EV
.
957 (1982) (exploring relationship between property and personhood, and dis-
cussing Hegel’s personhood perspective).
158. See Hughes, supra note 151, at 330-34 (discussing Hegelian justification
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of property).
159. See id. at 349 (recasting Hegel’s theory into framework of personality
theory).
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4. Distributive Justice Theory
The distributive justice theory of copyright is not yet well set-
tled. Professor William Fisher explains, however, that this theory
aims to use intellectual property rights to promote justice, welfare,
cultural progress, and respect.
160
Justifying individual ownership over a means to promote
health would be quite difficult under this theory. Despite the fact
that functionality and aesthetics are theoretically severable, al-
lowing copyrightability of an exercise routine would potentially
foreclose access to that exercise to the poor, and the distributive
justice theory aims to use intellectual property to unite classes and
encourage health. Instead, a copyright in an exercise routine
would likely promote elitism. This is evident where one gym is of-
fering Bikram Yoga classes for twenty-five dollars and a gym across
the street merely has “hot yoga” for eight dollars.
161
Such a result
would be unacceptable under this theory. Furthermore, as with the
utilitarian theory, a copyright in video or literature explaining an
exercise would likely be a sufficient incentive to create the rou-
tine—those who can afford it will purchase the video, and those
who do not purchase the video may still have the option of learning
about the exercise through other means such as a local community
center or library. Accordingly, exercise routines themselves should
not be copyrightable.
The analysis for routine-based sports is somewhat more
favorable. A copyright in a cheerleading routine would not prevent
an individual from using cheerleading to improve his or her health;
it would merely prevent other cheerleading teams from using the
same routine. This increases the diversity between routines. At the
same time, however, a copyright-based incentive to create new rou-
tines is likely unnecessary due to the competitive nature of the activ-
ity and the community norms. As mentioned above, however, these
norms do not apply when the routines move out of the competitive
arena and into strict entertainment. This theory would favor a ro-
bust selection of routines in each sport, as long as the protections
that promote that robustness do not hinder access to the routines
as entertainment. This seems to be an entirely realistic possibility.
160. See William Fisher, Theories of Intellectual Property, in
N
EW
E
SSAYS IN THE
L
EGAL AND
P
OLITICAL
T
HEORY OF
P
ROPERTY
169, 192 (Stephen R. Munzer ed., 2001)
(discussing distributive theory of justice as it applies to copyright law).
161. See Meredith Hoffman, Off the Mat, Into Court: Lawsuit Pits Bikram and
Yoga to the People,
N.Y. T
IMES
(Dec. 1, 2011, 7:22 PM), http://cityroom.blogs.ny
times.com/2011/12/01/off-the-mat-into-court-lawsuit-pits-bikram-and-yoga-to-the-
people/ (discussing issues involved in Bikram case).
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In sum, of the four most prominent theories used to justify
copyright laws, only the personality theory seems to support copy-
righting exercise routines. However, that theory is not widely ac-
cepted in U.S. law, and is incompatible with its economic rights.
Other justifications fail to find room for a copyright in exercise rou-
tines. On the other hand, routines in sports like figure skating,
gymnastics, and competitive cheerleading seem to fit more comfort-
ably within the confines of each copyright theory, especially as they
move out of the competitive arena.
VI. S
OLUTION
The Office’s statement is not binding. Though courts will give
such opinions deference, they may choose to diverge from follow-
ing if they prefer another argument. The previous parts have
demonstrated that some athletic activities, such as figure skating
routines, may be deserving of copyright protection, whereas others,
such as exercise and yoga routines, are much less deserving. Unfor-
tunately, the Office’s statement of policy failed to establish a strong
distinction between these two forms of athletic activity in determin-
ing that sports movements are not copyrightable.
Karolina Jesian has identified four categories pertaining to
copyright into which sports movements may fall: “[1] sports events;
[2] scripted sports plays; [3] routine-oriented competitive sports;
and [4] routine-oriented non-competitive sports.”
162
Jesian ex-
plains that the categories are arranged in order from least-copy-
rightable to most-copyrightable.
163
Figure-skating and gymnastics
fall into category three, but they may move into category four when
removed from the competitive arena. Jesian also puts yoga and ex-
ercise routines into category four, but as discussed in Part V, policy
considerations and an understanding of copyright theory jurispru-
dence removes yoga and exercise from category four into a fifth
category that likely lies somewhere between category two and cate-
gory three on the copyrightability spectrum: function-based athletic
routines. Rather than simply calling yoga and exercise a functional
routine, I use the term “function-based” because it is important to
note that functionality is severable from the more copyrightable as-
pects of a work, yet yoga and exercise is foremost about achieving
fitness results. Accordingly, a better spectrum would be this:
162. See Jesian, supra note 51, at 635 (discussing four categories of copyright
R
law into which sports can fall).
163. See id. (discussing spectrum of copyright categories).
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32 J
EFFREY
S. M
OORAD
S
PORTS
L
AW
J
OURNAL
[Vol. 20: p. 1
(1) Sports events;
(2) Scripted sports plays;
(3) Function-based athletic routines;
(4) Routine-oriented competitive sports; and
(5) Routine-oriented non-competitive performances.
Courts have all but ruled out the possibility of copyrighting cat-
egories one and two, and the Copyright Office’s new statement of
policy would have category three fall on the side of un-copyright-
ability.
164
Category five would include figure skating and gymnas-
tics pro-tours that are simply designed to entertain a crowd and
should certainly be copyrightable as a choreographic authorship
“organized into an integrated, coherent, and expressive whole.”
165
This leaves category four.
Though copyrighting routine-oriented competitive sports
seems unnecessary due to the community norms that encourage
progress outside of copyright, copyright is justifiable for this cate-
gory of work.
166
The routines performed at these events are identi-
cal to the routines performed at non-competitive performances.
The fact that these routines can move from the competitive sports
category into the non-competitive performances strengthens the ar-
gument for copyrightability.
VII. C
ONCLUSION
The Copyright Office’s statement of policy regarding a stricter
understanding of compilations under 17 U.S.C. §§ 101-103 provides
a solid argument to limit copyrightable compilations to those that
fall into one of the enumerated categories of copyrightable subject
matter in section 102(a). And the Office’s instincts about the un-
copyrightability of works, such as Bikram’s series of 26 yoga asanas,
are valid. Unfortunately, in explaining that yoga and exercise rou-
tines are uncopyrightable, the Office failed to adequately justify its
argument that such routines are not choreographic works. Further-
more, in explaining that sports movements were uncopyrightable,
the Office’s statement was overly broad as it failed to distinguish
between function-based routines like yoga and exercise, and more
164. See generally Nat’l Basketball Ass’n v. Motorola, 105 F.3d 841 (7th Cir.
1997) (leaving only last three categories of copyright spectrum copyrightable); see
also Registration of Claims to Copyright, 77 Fed. Reg. 37,605 (June 22, 2012) (to be
codified at 37 C.F.R. pt. 201) (discussing registration of claims to copyright).
165. See Registration of Claims to Copyright, 77 Fed. Reg. at 37,607 (giving
examples of sports routines that would fall under category five).
166. For a discussion of why copyright is justifiable for routine-oriented com-
petitive sports, see supra notes 135-161.
R
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expressive routines like figure skating, gymnastics floor routines,
and competitive cheerleading.
After analyzing copyright through its underlying policies and
justifying theories, it is apparent that the Office’s decision about the
uncopyrightability of exercise and yoga, despite the existence of
valid arguments to the contrary, is in fact the best policy. However,
one must recognize that the mere fact that a work is athletic in
nature, or performed as part of a competitive sports event, does not
preclude choreographic categorization, or, therefore, copyrighta-
bility.
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