[Commons-Law] Re: "Bikram Yoga"(c)

[Ram]

Dear all,

This is an update to an earlier posting made by me on the above issue- Ram


>New York Lawyer

Man Takes Claim He Holds Copyright on Yoga Poses to Court


New York Lawyer
April 5, 2005 

By Jeff Chorney
The Recorder 

Cobra, rabbit and half-tortoise are headed for trial. 

In a mixed ruling Friday, U.S. District Judge Phyllis Hamilton denied
both plaintiff and defendant summary judgment in a dispute over
whether a yoga entrepreneur can copyright a sequence of yoga poses.

Open Source Yoga Unity had sued Bikram Choudhury after Choudhury sent
cease-and-desist letters to yoga studios that he believes were ripping
off his intellectual property.

Choudhury is the most recognizable proponent of so-called "hot" yoga,
also known as Bikram yoga. He has registered a copyright for a
sequence of 26 asanas, or poses, to be performed in a heated room.
Most yoga classes don't follow strict sequences and aren't specially
heated.

Open Source believes ancient yoga techniques cannot be copyrighted and
wanted a pre-emptive declaration from the courts to stave off any
infringement claims Choudhury might make.

But in her order Friday, Hamilton leaned in favor of Choudhury. 

"[Open Source] has provided no persuasive authority that a compilation
of yoga asanas cannot be protected under the copyright laws in the
same manner as other compilations," Hamilton wrote. "Therefore, if the
trier of fact determines that a sufficient number of the individual
yoga asanas are arranged in a sufficiently creative manner, copyright
protection for the yoga sequence would be available."

Although the spectacle of people exerting themselves is unlikely to
occur at trial, Hamilton nevertheless acknowledged the case was
unusual.

"The court, while recognizing, and even agreeing that application of
the law of compilations to yoga asanas appears to violate the spirit
of yoga, has been unable to locate any authority that precludes such
application," Hamilton wrote.

Susan Hollander, a partner at Manatt, Phelps & Phillips who represents
Choudhury, said she took that as a nod to media stories that have
portrayed Choudhury as trying to copyright ancient techniques that are
in the public domain.
................................................








-- 
Prabhu Ram,
Max-Planck-Institut for Intellectual Property, Competition and Tax Law,
MarstallPlatz 1, 
80539 Munich
GERMANY

Tel: + 49 89 24246226
Mob: + 49 17629830521
Web: http://infoserve.blogspot.com



On Mar 21, 2005 9:50 PM, Ram <prabhuram at gmail.com> wrote:
> >From the Los Angeles Times
> 
> Bikram goes to the mat
> 
> By copyrighting a sequence of yoga poses, a guru upset the
> discipline's harmonic balance. Now he's in court.
> 
> By Hilary E. MacGregor
> 
> Times Staff Writer
> 
> Published March 21, 2005
> 
> If yoga has been around for 5,000 years, can a 21st century
> businessman claim to own a piece of it? Bikram Choudhury says yes.
> 
> The flamboyant Beverly Hills yoga mogul, who popularized his style of
> yoga and then franchised a chain of studios bearing his name, has long
> rankled traditionalists, who dislike his tough business tactics and
> brash outspokenness. Now Choudhury is facing a challenge in a San
> Francisco courtroom, where a federal judge is hearing arguments in a
> lawsuit that some legal experts say could define a new frontier in
> intellectual property. At issue: Can Choudhury take a sequence of two
> breathing exercises and 26 yoga poses from an ancient Indian practice,
> copyright it and control how it is practiced?
> 
> The legal protection he is allowed may depend on whether yoga is
> defined as an exercise regimen, a sport, a spiritual practice or a
> choreographed form of expression, like music or dance. The case, says
> UCLA law professor Neil Netanel, "really depends on an issue that
> isn't covered in the law: What is the nature of yoga?"
> 
> Some legal experts believe the case could have broader implications,
> not just for yoga but for many forms of physical exercise.
> 
> Stanford University Law School professor Paul Goldstein said a
> decision in Choudhury's favor would have "clear implications for any
> other activity that entails a combination of movement and
> environment," such as choreography or martial arts. "It could also
> have implications for basketball plays, or football plays, if it were
> decided that way."
> 
> Adds Jim Harrison, a Sacramento attorney representing a group of yoga
> teachers and students who filed the lawsuit against Choudhury
> challenging his copyright claims, "If Bikram is successful, people
> will run to copyright bench-pressing and stepping."
> 
> Choudhury's yoga is made up of a sequence of 26 postures (each of
> which is performed twice during a single class) and two breathing
> exercises. These postures are culled from 84 classical postures and
> more than 10,000 combinations.
> 
> In Bikram classes, the room is heated to more than 100 degrees, he
> says, to work bodies like a blacksmith.
> 
> Choudhury says his sequence, practiced exactly the way he instructs,
> has medical, mental and spiritual benefits. He claims it can lower
> blood pressure and cholesterol, cure arthritis, and heal reproductive
> and spinal problems.
> 
> He also claims to have revived the athletic careers of Kareem
> Abdul-Jabbar and John McEnroe and to have cured former President
> Richard Nixon of phlebitis.
> 
> While legions of lithe practitioners swear by the health benefits of
> his yoga, Choudhury offers no more than anecdotal evidence that his
> sequence of poses, performed in a sweat-laden room, offers any of the
> benefits he claims.
> 
> There are currently more than 1,300 Bikram Yoga studios around the
> world (about 1,200 of them in the United States), taught by certified
> Bikram Yoga teachers. Choudhury estimates that 400 of them teach their
> classes correctly — that is, according to the way he prescribes. The
> rest offer modified versions of his program, with various levels of
> adherence to his sequence of poses, room temperature and other rules.
> Also, many gyms and studios offer hot yoga, sometimes calling it
> Bikram yoga, with teachers both certified and not.
> 
> Choudhury doesn't like it when others mess with his system.
> 
> "My system works, as long as people let me do my job my way," he said.
> "It is not just the sequence, it is how you do it: the timing, the
> mirrors, the temperature, the carpet. But if people only do it 99%
> right, it is 100% wrong. When someone tries to mess with it, the
> people won't get the yoga benefits. Then it is just calisthenic
> exercise, like running, jogging or swimming."
> 
> Many in the yoga world contend that Choudhury has done nothing more
> than take 26 yoga moves and put them in sequence. Many classic and
> modern yoga styles involve sequences. But no one's ever claimed
> exclusive ownership of them and tried to control their practice
> through copyright.
> 
> Choudhury has tried various legal maneuvers to protect what he
> considers his intellectual property. For example, teachers at his
> franchised studios are supposed to follow an approved text, or
> "dialogue," that he has copyrighted. He has also copyrighted the name
> of his studios (Bikram's College of India) and the name of his yoga
> program (Bikram Yoga).
> 
> John Marcoux, an intellectual property lawyer who runs two Bikram
> studios in Chicago and who advises Choudhury on various legal issues,
> says Choudhury is trying to "keep the yoga pure."
> 
> "What he is doing is like copyrighting a song," Marcoux said. "It is
> not the notes, but the way you sequence the notes, that distinguish
> Beethoven from the Beatles."
> 
> In 2002, Choudhury began to crack down on those who tinkered with his
> teaching formula. His attorney sent out cease-and-desist letters to
> numerous studios teaching Bikram yoga, accusing them of violating his
> rules. In February 2003, according to court documents, Choudhury
> posted a notice on his website that he had obtained a copyright
> registration for his asana sequence. The notice warned of possible
> legal action against violators.
> 
> "Virtually all modifications or additions to the sequence will
> constitute copyright infringement, including: the unauthorized use of
> even a small number of consecutive postures; the addition of different
> postures or breathing exercises to the sequence or portions of the
> sequence; the teaching or offering of the sequence with or without the
> Dialogue; or by addition of extra elements to the sequence, like
> music." The posting also said Choudhury would seek damages up to
> $150,000 for each infringement.
> 
> After he sued an Orange County yoga studio for copyright and trademark
> infringement in 2002, a small group of yogis went on the
> counterattack. Taking a page from the "open source" movement in the
> computer software world, they called themselves "Open Source Yoga
> Unity."
> 
> The group is headed by Vanessa Calder, 28, a yoga teacher who learned
> the 26-pose Bikram sequence from her parents without getting formal
> certification. (Her parents, who own four Yoga Loka studios in
> Northern California, received one of Choudhury's cease-and-desist
> letters in 2002.)
> 
> Open Source Yoga has about two dozen members, mostly teachers or
> students of Bikram and other styles of yoga. Most choose to remain
> anonymous because they are afraid that Choudhury may sue them if their
> identities are known, said Calder, the group's chief executive.
> 
> In July 2003, Open Source filed a suit in U.S. District Court in San
> Francisco, asking the judge to declare that Bikram could not use his
> copyrights to stop others from practicing or teaching classes that
> used the Bikram sequence of poses.
> 
> At a hearing in January, the attorneys finally stood before Judge
> Phyllis Hamilton and argued the main issue in the case: What is the
> scope of Choudhury's copyright protection?
> 
> On one side of the courtroom sat Choudhury, self-proclaimed yogi to
> the stars, in pinstriped suit, a diamond-studded watch on his wrist, a
> pink silk handkerchief peeking out of his breast pocket. On the other
> side, dressed in a flowing Indian print skirt, sat Calder, surrounded
> by several supportive yoga students and teachers.
> 
> As the lawyers for both sides argued their cases, Hamilton struggled
> with Indian names and yogic concepts, and with what exactly was at
> stake. "This is a very unusual case," Hamilton began. "I don't even
> know what is being sought. Am I pronouncing this correctly? Bikram?"
> 
> "Your honor, we are looking for a judgment that yoga teachers may
> teach the sequence described in this book ["Bikram's Beginning Yoga
> Class"] without infringing on Mr. Choudhury's copyright," said Open
> Source's lead lawyer, Elizabeth Rader, a Palo Alto attorney
> specializing in intellectual property cases. "My clients want to be
> able to teach the exercise, the method of fitness, described in this
> book."
> 
> Representing Choudhury, Palo Alto attorney Susan Hollander — also an
> intellectual property specialist — sought to persuade Judge Hamilton
> to force the Open Source members to reveal their identities and
> explain how they are interpreting the "Bikram's Yoga" sequence so the
> court could determine whether that interpretation is "significantly
> similar" to Bikram's.
> 
> "To this day we do not know what the members of O.S.Y.U. are doing,"
> Hollander told the judge. "So we can see if one pose has been altered,
> or two…. We want them to tell us."
> 
> "I imagine they were reluctant to say who they are if he [Bikram] only
> sues people who are doing that," Hamilton responded.
> 
> Hollander contends that yoga is no different from music or any other
> form of expression.
> 
> "There's nothing special about yoga which should make it special or in
> some way removed from copyright law," she said. "In my view it is just
> a form of expression that has public domain elements to it."
> 
> That view is a stretch to some yoga enthusiasts. "To say that,
> basically, a tradition of working with the body can be somebody's
> intellectual property — no matter how they put them together — seems
> pretty bizarre," said Deborah Willoughby, founding editor of Yoga
> International, a magazine that focuses on the spiritual aspects of
> yoga. "It's a violation of the spirit of yoga."
> 
> Copyright law does not extend to an idea or process; it only addresses
> the way an idea is actually expressed. That means a book, video or
> photograph can be copyrighted, but teaching a recipe written in a
> cookbook, for example, could not.
> 
> Athletic movements, such as a basketball star's signature slam-dunk,
> cannot be copyrighted because sports games are unscripted and have
> unanticipated occurrences.
> 
> "I'm not aware of anyone who has successfully done what Bikram is
> trying to do," said Netanel, who has discussed the case in his law
> classes. "Which is, through the guise of copyrighting photographs or
> descriptions of an exercise method, to control the practice of yoga."
> 
> Hamilton is expected to rule on the copyright issue this spring
> 
> Some of Open Source's executive board members studied with Choudhury
> but have since struck out on their own, creating new sequences and
> styles of yoga — with a definite Bikram influence. They are among the
> most outspoken of his critics.
> 
> Ted Grand studied with Choudhury in 1999 and started four Bikram
> studios in Canada. Grand built studios with radiant heating panels,
> reclaimed hardwood floors from old gyms, and nontoxic paint. "Bikram
> was very upset with us for not putting carpet down in the yoga room,
> and threatened to sue," he said.
> 
> Rather than fight, Grand came up with his own sequence of about 40
> poses — done in a hot room — and created a small chain of studios. He
> called his new style Moksha Yoga.
> 
> Jimmy Barkan, of Fort Lauderdale, Fla., also teaches yoga based on his
> experience with Choudhury. He calls his classes "Hot Yoga With Jimmy
> Barkan" but has not changed the sign outside his studio, which reads
> "Yoga College of India."
> 
> "Bikram brought this style of yoga to this country, and for that I
> will be forever grateful," said Barkan, who says a phone call from
> Choudhury forbidding him to teach at certain yoga conferences and
> vacations prompted him to break away from the franchise. "He is
> extremely passionate and charismatic. And when he is on, he is
> extremely inspiring."
> 
> Added Barkan: "We just didn't want to be looking over our shoulders
> all the time. We want the freedom to be able to do whatever we want.
> We did not want policemen to come into the studio and say, 'This is an
> illegal class; you are not allowed to do this triangle at this time.'
> "
>