Why Is It Easier to Copyright an Unhealthy Yoga Routine than a Healthy One?
You might wonder first how yoga, dating back thousands of years in India, can be copyrighted at all. (Not easily, as we will explain in a moment.) But the question we raise emerges from a very current dispute between two rival yoga studios.
Bikram Choudhury is the founder of Bikram Yoga, a popular chain of yoga studios frequented by celebrities such as Lady Gaga and David Beckham. In Bikram Yoga classes, students enter a room heated to 105 degrees Fahrenheit to perform a set of 26 traditional poses and two breathing exercises. While you might think demand for this would be low, “hot yoga” has made Choudhury very rich. He has a villa in Beverly Hills, and a collection of more than three dozen Rolls-Royces and Bentleys.
So where does all the money come from? A big piece of Choudhury’s fortune comes from courses for yoga instructors aiming to teach the Bikram method. Choudhury charges $7,000 for the nine-week course. And to protect this revenue stream, when rival studios teach the Bikram method, or offer Bikram-style classes without Bikram-certified instructors, he sues them.
Greg Gumucio is an example. Gumucio runs a rival hot yoga studio called Yoga to the People. In New York City, Bikram charges $20-25 per class; Gumucio charges $8. And Gumucio trains his own instructors. As a result, as the New York Times reported, he has recently been sued by Choudhury.
So what does health have to do with this lawsuit? Choudhury claims that his yoga sequence, when performed as directed and at the correct temperature has significant health benefits – ranging from the alleviation of diabetes to multiple sclerosis and obesity. But a central feature of copyright law is that creations that have a function cannot be copyrighted. The more Choudhury’s health benefits are true, in other words, the weaker his claim to copyright is.
And that claim is pretty weak to begin with. The poses themselves are in the public domain – they have been practiced in traditional yoga for a very long time. It is nonetheless true that those who “select and arrange” public domain elements, like yoga poses, in an original way can obtain a “thin” copyright that gives them the exclusive right to that particular selection and arrangement. So Choudhury may have a valid claim that he can use to prevent others from exactly replicating his sequence. But this “thin” copyright cannot be used to prevent a rival from performing a sequence that is similar, but not identical. Mix up the order a bit, in other words, and Mr. Gumucio is on safe ground.
If Bikram Yoga’s advertised health benefits are accurate, however, even this thin copyright is probably unavailable. Functionality is the master concept that divides copyright (which covers art, literature, and other non-functional things), and patent (which covers new machines, processes, and other functional things). Choudhury claims that his sequence cures disease – this is clearly a claim of functionality. That would seem to rule out copyright.
But let’s face it: Choudhury may be exaggerating the health benefits of hot yoga just a bit to drum up business. Should he nonetheless be able to claim a copyright on the ground that the sequence actually does not do what he says it does?
This isn’t a far-fetched question – Choudhury’s lawyers are very careful to downplay hot yoga’s disease-curing claims in their legal papers. But if Choudhury sells his hot yoga on the basis of its curative power, he should be held to what he says. And if the sequence is functional, the copyright claims fall apart. And once that happens, the only option remaining for Choudhury is patent, and for several reasons that isn’t going to happen (perhaps the simplest is that hot yoga has been offered in the market for years, and is therefore not “novel” in the way the patent law requires).
Claiming hot yoga makes you fat and sick probably wouldn’t be a great business strategy. But it would make Choudhury’s litigation strategy a lot easier.