The line of what is subject to copyright can seem very confusing, despite the relatively straightforward language of section 102 of the 1976 Copyright Act. A recent decision by the Ninth Circuit Court of Appeal took on the topic in Bikram’s Yoga College v. Evolation Yoga, 803 F.3d 1032 (2015), and provided what is one of the best examples of explaining what you, as an author, can protect.
The case background is fairly straightforward – something that can’t always be said.
Bikram had created a type of yoga practice that had two key components. First, there was a set of specific poses (asanas) and breathing exercises done to a series of instructions. Second, these asanas are performed in a room headed to 105 degrees Fahrenheit. A book was published outlining the process in 1979. The popularity of the practice (the “Sequence”) is obvious for anyone who has walked down a street in the past 10 years, yoga studios offering such practices are almost as prevalent as Starbucks. The Defendants had taken a teacher-training class and subsequently went off on their own, opening a studio following the same practices.
Bikram sued, asserting that the use of the Sequence constituted copyright infringement.
The Ninth Circuit Disagreed and laid out what was protectable, and what wasn’t. As noted by the Court, “the Sequence is an idea, process, or system designed to improve health. Copyright protects only the expression of this idea — the words and pictures used to describe the Sequence — and not the idea of the Sequence itself.” The expression of the copyrightable work was the book, drawings, pictures which were published. The System, using those asanas and breathing exercises, was simply a process. The Copyright Act protects the author for what she created and set into a final product (a photograph, a poem, a sculpture) but not the ideas that were conveyed by the work. Reduction of your authorship to a tangible item doesn’t close the door for others – quite the opposite. The Ninth Circuit noted that copyright law “encourages others to build freely upon the ideas and information conveyed by a work.”
What creative authors have to think about is where is the line between using an idea and copying a “work”?
Imagine seeing an artist whose paintings are always from the perspective of directly overhead. You couldn’t replicate his exact paintings, but you too could decide that the best perspective for your own gallery showing is images with a perspective from above. The idea of using a different perspective is the idea which you can freely build upon for yourself. While more in the patent realm, there is the loose analogy to Snapchat, Facebook and the popularity of “face swapping” technology. Snapchat added the ability to swap faces when taking photos and it became immensely popular. Facebook has joined the fray through the acquisition of Masquerade. The “idea” is allowing a user to swap his face in a photo with others and take a picture.
So what category does your work fall into?
Let’s hope you’ve just taken good ideas and expressed them in your own unique perspective.
