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«BIKRAM’S YOGA COLLEGE OF INDIA, No. 13-55763 L.P., a California limited partnership; BIKRAM CHOUDHURY, D.C. No. an Individual, 2:11-cv-05506- ...»

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BIKRAM’S YOGA COLLEGE OF INDIA, No. 13-55763

L.P., a California limited

partnership; BIKRAM CHOUDHURY, D.C. No.

an Individual, 2:11-cv-05506-

Plaintiffs-Appellants, ODW-SS

v.

OPINION

EVOLATION YOGA, LLC, a New York limited liability company;

MARK DROST, an Individual; ZEFEA SAMSON, an Individual, Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Otis D. Wright II, District Judge, Presiding Argued and Submitted May 8, 2015—Pasadena, California Filed October 8, 2015 Before: John T. Noonan, Kim McLane Wardlaw, and Mary H. Murguia, Circuit Judges.

Opinion by Judge Wardlaw

2 BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA

SUMMARY* Copyright Affirming the district court’s grant of partial summary judgment, the panel held that a sequence of yoga poses and breathing exercises was not entitled to copyright protection.

The panel held that under 17 U.S.C. § 102(b), the “Sequence,” developed by Bikram Choudhury and described in his 1979 book, Bikram’s Beginning Yoga Class, was not a proper subject of copyright protection because it was an idea, process, or system designed to improve health, rather than an expression of an idea. Because the Sequence was an unprotectible idea, it was also ineligible for copyright protection as a compilation or choreographic work.

COUNSEL

Ivana Cingel (argued), Carla Christofferson and Daniel Petrocelli, O’Melveny & Myers LLP, Los Angeles, California, for Defendants-Appellants.

Eric R. Maier (argued) and Louis Shoch, Maier Shoch LLP, Hermosa Beach, California, for Plaintiffs-Appellees.

Kevin M. Fong and Cydney A. Tune, Pillsbury Winthrop Shaw Pittman LLP, San Francisco, California, for Amicus Curiae Yoga Alliance.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA 3

OPINION

WARDLAW, Circuit Judge:

We must decide whether a sequence of twenty-six yoga poses and two breathing exercises developed by Bikram Choudhury and described in his 1979 book, Bikram’s Beginning Yoga Class, is entitled to copyright protection.

This question implicates a fundamental principle underlying constitutional and statutory copyright protection—the idea/expression dichotomy. Because copyright protection is limited to the expression of ideas, and does not extend to the ideas themselves, the Bikram Yoga Sequence is not a proper subject of copyright protection.

–  –  –

The Indian practice and philosophy of yoga date back thousands of years. See Linda Sparrowe, Yoga 9 (2002).

Derived from ancient Hindu scriptures, including the Bhagavad Gita, the practice of yoga teaches students to attain spiritual fulfillment through control of the mind and body.

See Stefanie Syman, The Subtle Body: The Story of Yoga in America 4 (2010). Yoga has evolved into a diverse set of spiritual, philosophical, and physical disciplines. Some students practice yoga to transcend the physical body and unite with divine powers; others focus on improving strength, flexibility, and overall physical fitness.

The history of yoga in the United States reflects its wideranging appeal. Some of yoga’s first American adherents included nineteenth-century transcendentalists, such as Henry David Thoreau and Ralph Waldo Emerson, who were fascinated by yoga’s approach to achieving enlightenment.

4 BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA

In the early twentieth century, yoga grew more popular as scientists and physicians began to study the physical benefits of the practice. These physical benefits caught the attention of Hollywood celebrities, including Gloria Swanson, Greta Garbo, and Marilyn Monroe, who embraced yoga as a tool to fight illness and aging. See Pankaj Mishra, Posing as Fitness, N.Y. Times, July 23, 2010.1 By the 1960s, Americans increasingly turned to yoga as a “non-religious, decidedly unspiritual” form of physical exercise. Sparrowe, supra, at 50.

In 1971, Bikram Choudhury, the “self-proclaimed ‘Yogi to the stars,’” id. at 56, arrived in Beverly Hills, California.

He soon became a central figure in the growing popularity of yoga in the United States. Born and raised in Calcutta, India, Choudhury began studying yoga at age four and learned hundreds of traditional Hatha yoga “asanas,” or individual poses. Hatha yoga places particular emphasis on the physical components of yoga. Choudhury developed a sequence of twenty-six asanas and two breathing exercises, arranged in a particular order, which he calls the “Sequence.” See Bikram Choudhury, Bikram’s Beginning Yoga Class (1979).

Choudhury opened his own studio, where he began offering “Bikram Yoga” classes. In a Bikram Yoga class, the Sequence is practiced over the course of ninety minutes, to a series of instructions (the “Dialogue”), in a room heated to 105 degrees Fahrenheit to simulate Choudhury’s native Indian climate.





Choudhury popularized the Sequence by marketing the many health and fitness benefits it provides. Choudhury 1 This article may be found at http://www.nytimes.com/2010/07/25/ books/review/Mishra-t.html.

BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA 5

informs prospective students that his “system of Hatha Yoga is capable of helping you avoid, correct, cure, heal, or at least alleviate the symptoms of almost any illness or injury.” He claims that he developed the Sequence after “many of years of research and verification... using modern medical measurement techniques.” He tells reporters that he extended the careers of professional athletes, including Kareem AbdulJabbar and John McEnroe. This message has resonated with an American audience: as the complaint in this action explains, “[p]ublic demand for Bikram Yoga classes grew steadily once Bikram Yoga participants realized that Bikram’s unique yoga style and method offered them tremendous physical, mental and other benefits.” In 1979, Choudhury published the book Bikram’s Beginning Yoga Class, which includes descriptions, photographs, and drawings of the Sequence’s twenty-six poses and two breathing exercises. Choudhury registered the book with the U.S. Copyright Office in 1979. In 2002, he also registered the “compilation of exercises” contained in the book, using a supplementary registration form that referenced back to the 1979 book.2 In 1994, Choudhury introduced the “Bikram Yoga Teacher Training Course.” In 2002 and 2005, respectively, Mark Drost and Zefea Samson enrolled in and successfully completed the three-month Bikram Yoga Teacher Training 2 Choudhury has registered several other works with the Copyright Office, including Bikram’s Beginning Yoga Class (2d ed.) (2000), Bikram’s Beginning Yoga Class (sound cassette) (2002), Bikram’s Yoga College of India Beginning Yoga Dialogue (2002), Bikram’s Yoga College of India: Yoga Teacher Training Course: Curriculum Outline (2002), Yoga for Pregnancy (2002), Bikram’s Advanced Yoga Class (2006), and Bikram’s Yoga (2007).

6 BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA

course. In 2009, Drost and Samson founded Evolation Yoga, LLC. Evolation Yoga offers several types and styles of yoga, including “hot yoga,” which is similar to “Bikram’s Basic Yoga System.” Evolation acknowledges that hot yoga “includes 26 postures and two breathing exercises and is done for 90 minutes, accompanied by a series of oral instructions, in a room heated to approximately 105 degrees Fahrenheit.” On July 1, 2011, Choudhury and Bikram’s Yoga College of India, L.P. (“Choudhury”)3 filed a complaint in the Central District of California alleging, inter alia, that defendants Evolation Yoga, LLC, Mark Drost, and Zefea Samson (“Evolation”) infringed “Bikram’s Copyrighted Works through substantial use of Bikram’s Copyrighted Works in and as part of Defendants’ offering of yoga classes.” On November 12, 2012, Evolation moved for partial summary judgment as to Choudhury’s claim of copyright infringement of the “Sequence.” The district court granted Evolation’s motion, ruling that the “Sequence is a collection of facts and ideas” that is not entitled to copyright protection. The parties settled all remaining claims against each other, and Choudhury timely appealed as to the “Sequence.”

–  –  –

“We review de novo a district court’s grant of partial summary judgment, and may affirm on any ground supported by the record.” White v. City of Sparks, 500 F.3d 953, 955 (9th Cir. 2007) (citation omitted). “After ‘viewing the 3 For the purposes of this appeal, it is not necessary to distinguish between Bikram Choudhury, the individual, and Bikram’s Yoga College of India, LP. Accordingly, we refer to all Plaintiffs-Appellants as Choudhury.

BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA 7

evidence in the light most favorable to the nonmoving party,’ we determine ‘whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.’” Id. (quoting Am. Civil Liberties Union of Nev. v. City of Las Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003)).

III. Discussion

Though Choudhury emphasizes the aesthetic attributes of the Sequence’s “graceful flow,” at bottom, the Sequence is an idea, process, or system designed to improve health.

Copyright protects only the expression of this idea—the words and pictures used to describe the Sequence—and not the idea of the Sequence itself. Because the Sequence is an unprotectible idea, it is also ineligible for copyright protection as a “compilation” or “choreographic work.” The district court properly granted partial summary judgment in favor of Evolation because the Sequence is not a proper subject of copyright.

A. The Sequence Is an Unprotectible Idea.

Section 102(a) of the Copyright Act of 1976 sets forth the proper subjects of copyright protection. 17 U.S.C. § 102(a).

Section 102(b) expressly excludes protection for “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” Id. § 102(b). Section 102(b) codifies the “idea/expression dichotomy,” under which “every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication.” Golan v. Holder, 132 S. Ct. 873, 890 (2012) (quoting Eldred v. Ashcroft,

8 BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA

537 U.S. 186, 219 (2003)); see also Frybarger v. Int’l Bus.

Machs. Corp., 812 F.2d 525, 529 (9th Cir. 1987) (explaining that Section 102(b) “expressly codified” this principle); H.R.

Rep. No. 94–1476, at 57 (1976) (explaining that the “purpose [of Section 102(b)] is to restate... that the basic dichotomy between expression and idea remains unchanged”).

The idea/expression dichotomy has two constitutional foundations: the Copyright Clause and the First Amendment.

Under the Copyright Clause, “[t]he primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts.’” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991) (quoting U.S. Const. art. I, § 8, cl. 8). Thus, “[t]he ‘constitutional command’... is that Congress, to the extent it enacts copyright laws at all, create a ‘system’ that ‘promote[s] the Progress of Science.’” Eldred, 537 U.S. at 212 (quoting Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 6 (1966)). “To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.” Feist, 499 U.S. at 349–50. At the same time, the idea/expression dichotomy “strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.” Harper & Row Publishers v. Nation Enters., 471 U.S. 539, 556 (1985); see also Eldred, 537 U.S.

at 219 (describing the idea/expression dichotomy as a “builtin First Amendment accommodation[]”); L.A. News Serv. v.

Tullo, 973 F.2d 791, 795 (9th Cir. 1992) (“Copyright law incorporates First Amendment goals by ensuring that copyright protection extends only to the forms in which ideas and information are expressed and not to the ideas and information themselves.”); 5 Melville B. Nimmer & David

BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA 9

Nimmer, Nimmer on Copyright § 19E.04[B] (2015) (“[F]ree access to ideas is vital not only for copyright law but also for the maintenance of the democratic dialogue....”).

In Baker v. Selden, 101 U.S. 99 (1879), the Supreme Court addressed the protection copyright law provided to a book, a classic subject of copyright protection, explaining a system of book-keeping. Id. at 99–100. The Court held that the book’s expression of the book-keeping system was protected, but the system of book-keeping itself was not entitled to copyright protection. Id. at 102. The Court

explained:

–  –  –

Id. at 105.



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