Every freelancer working in some sort of creative field, or any field that makes direct or indirect contact with creativity, or might occasionally use the word “creative”—actually, let’s just say that every freelancer should have a general understanding of what may be subject to copyright protection. "Google Book Search - notice board at michigan university library" by Andrew Turner (originally posted to Flickr as All your books...) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia CommonsTwo recent court decisions involving copyright disputes demonstrate some important points. Specifically, one decision addressed whether copyright law protects a sequence of yoga poses, as opposed to a written description or visual depiction of those poses. (Spoiler: it doesn’t.) The other decision considered whether the Fair Use doctrine allows Google to make snippets of copyrighted books available to the public on its website. (Spoiler: it does.)

Copyright Meets Yoga

Copyright law protects written, visual, and audio works, such as books, films, recorded songs, written music, photographs, software code, and so on. It does not protect ideas, but rather expressions of ideas. The novel and film Jurassic Park, for example, are both covered by copyright law, but the idea of cloned dinosaurs running amok on an island is not. A lawsuit filed in California in 2011 tested the boundaries between an idea and a expression of an idea.

The plaintiff in Bikram’s Yoga College v. Evolation Yoga is the well-known creator of the style known as Bikram yoga, a form of “hot yoga.” He published a book in 1979 entitled Bikram’s Beginning Yoga Class, which described a sequence of exercises that form the basis of the Bikram yoga style. The court refers to it as “the Sequence.” It consists of twenty-six yoga poses and two breathing exercises, and is typically performed in a heated room, hence the term “hot yoga.” The plaintiff registered the book with the U.S. Copyright Office in 1979, and in 2002, he filed a supplemental registration that purported to cover the book’s “compilation of exercises.” The claimed copyright did not cover the poses themselves, but rather the particular sequence of poses used in Bikram yoga.

"Yoga, Backbend, Blue Sky, Fitness" by jesslef [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via Pixabay

The defendants completed the yoga instructor training course offered by the plaintiff. In 2009 they founded their own company, which offers classes for multiple styles of yoga, including a “hot yoga” course that, according to the plaintiff, infringes on the copyright covering the Sequence. The defendants’ course includes twenty-six yoga poses and two breathing exercises, and is conducted in a room heated to about 105 degree Fahrenheit.

The plaintiff sued for copyright infringement in the summer of 2011, but the court dismissed the complaint towards the end of 2012. He appealed, and the Ninth Circuit Court of Appeals in California ruled on the case in October 2015. It affirmed the lower court’s ruling that the Sequence is “a collection of facts and ideas that is not entitled to copyright protection.”

Patent law is actually more applicable to the Sequence than copyright law, although it is questionable if the Sequence could actually be patentable. Patent protection is available for “any new and useful process,…or any new and useful improvement thereof,” provided that the person applying for the patent either invented or discovered it.

The key to a patent claim is that it must be a new, or newly discovered, process for doing yoga, which can be difficult to establish in a discipline that is thousands of years old. This apparently has not stopped “self-styled yoga gurus” from claiming copyrights or patents in ancient yoga practices, giving rise to the term “yoga piracy.” The Indian government has even published a video database of more than 1,500 poses, or asanas, in an effort to head off copyright and patent claims.

Google Books Is Ruled “Transformative”

Another recent copyright dispute, Authors Guild v. Google, involved a claim, brought by an organization of published authors, that Google violated their copyrights by allowing the public to access portions of their books online, free of charge and without permission. Google argued that its service, known as Google Books, falls under the Fair Use exception to copyright protection. The Supreme Court has held that “transformative” uses of copyrighted materials, for purposes like education, commentary, and even parody, fall under the Fair Use doctrine.

Google maintains a database of digital copies of millions of books, most of which have been submitted to it by libraries. These books are generally not available to the public online in their entirety, but Google does allow users to search within books and to view excerpts of the book containing the search terms.

"Kirtas APT BookScan 1200" by Ben Woosley (originally posted to Flickr as Book Scanner) [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons

The Authors Guild, a professional writers’ association, filed suit against Google in New York in 2005, alleging copyright infringement. In 2013, the trial court ruled against the plaintiff and dismissed the lawsuit. The Second Circuit affirmed that ruling in October 2015. It cited the U.S. Supreme Court’s seminal case on Fair Use and parody, Campbell v. Acuff-Rose Music, Inc., in considering Google’s use of the copyrighted books.

In Campbell, the Supreme Court found that the use of an excerpt from a copyrighted song in a parody of that song was “transformative” within the meaning of the Fair Use doctrine. In this case, the court reached a similar conclusion about Google’s use of digital copies of books to allow searches of the books’ text. Based on this and other factors, it found that the Fair Use doctrine permitted Google’s operation of Google Books.

Coming soon: Anti-SLAPP laws, Fair Use and the DMCA, restrictions on commercial speech and the First Amendment, and more!

Photo credits: “Google Book Search – notice board at michigan university library” by Andrew Turner (originally posted to Flickr as All your books…) [CC BY 2.0], via Wikimedia Commons; “Yoga, Backbend, Blue Sky, Fitness” by jesslef [Public domain, CC0 1.0], via Pixabay; “Kirtas APT BookScan 1200” by Ben Woosley (originally posted to Flickr as Book Scanner) [CC BY-SA 2.0], via Wikimedia Commons.