The practice and philosophy of Yoga is millions of years old. The Bhagavat Gita propounds that "Yoga is the journey of the self, through the self to the self." Yoga is deeply entwined in the heritage and culture of India and is inseparable from its spiritual history. It was in the 20th century that yoga became popular in the United States.
The practice of Yoga is centuries old and popular all over the world. Yoga and IPR are closely connected in the form of traditional knowledge, trademarks etc. The Copyright aspect of yoga poses is a grey area over which there is still some uncertainty. Some techniques like Hot Yoga developed by Bikram Chowdhary are so popular that people have tried to obtain copyright protection for the same. The popular Netflix documentary has once again stirred up conversations regarding yoga and it's copyrightability. Copyright protection is available for original expressions of ideas. This article analyses the scope and feasibility of affording copyright protection to yoga poses in light of certain landmark case laws. It focuses on the idea-expression dichotomy in granting copyright to certain yoga poses. The article further deals with the alleged copyright infringement of Ghosh's Yoga College by Netflix in the hit documentary "Bikram: Yogi, Guru and Predator" by making unauthorized use of photographs and video footage belonging to the latter.
The recent Netflix documentary "Bikram: Yogi, Guru, Predator" has stirred up discussions about the scope of copyrights on Yoga techniques and sequences. There have been attempts, over the years, to copyright yoga sequences, though they have been unsuccessful till date. Anybody familiar with yoga wouldn't be a stranger to the name Bikram Chowdhary, who is infamous for his yoga technique better known as hot yoga. The documentary features his rise and eventual downfall due to charges of rape, sexual assault and harassment by his followers. This recent development has once again ignited the debate on the question of copyrightability of yoga poses. Moreover, the documentary is facing the heat of claims of copyright infringement by Ghosh's Yoga College based in Calcutta.
Copyright for Yoga Poses- A reality or an idea too farfetched?
The world's attention was first drawn to the question of copyrightability of Yoga sequences when Bikram Chowdhary tried to get copyright protection for his yoga sequence in the famous case of Bikram's Yoga Coll. of India, L.P. v. Evolution Yoga, LLC 1 when he sued the latter for teaching hot yoga with the same sequence of postures as that of Bikram Yoga. He had developed a sequence of twenty-six asanas and two breathing exercises, arranged in a particular order known as the "Sequence".
The district court had granted a summary judgement holding that the "Sequence" was a collection of facts and ideas and was hence not entitled to copyright protection. On appeal before the Ninth Circuit Court, Bikram Chowdary's claim was rejected and it approved the decision of the district court.
The main point to be considered while analysing the scope of copyrightability of yoga sequences is the idea-expression dichotomy. Copyright affords protection to original expression of ideas. Ideas as such are not copyrightable under Copyright law. The court held that the sequence was an idea and hence it was outside the purview of the copyright law. No matter how original an idea is, it cannot be copyrighted.
The US Copyright law, Section 102(b) of the Copyright Act, 1974 codifies the idea-expression dichotomy. 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." It means that they are available for access by the general public. The landmark case of Baker v Seldon 2 laid emphasis on the idea-expression dichotomy and distinguished the two and laid down that copyright for a work describing how to perform a process does not extend to the process itself.
It was the opinion of the Court of Appeal for the 9th Circuit Court that attempts to copyright a healing method should not be permitted no matter how beautiful and graceful it was. Beauty is not a factor for affording copyright protection.
A book containing a sequence of yoga poses can be copyrighted but the poses themselves fall outside the purview of the protection extended. Enabling copyright protection for a sequence like that of Bikram Chowdhary's would have the counterproductive effect of suppressing artistic creativity of the general public by prohibiting them from engaging with the idea and building upon the same.
The Indian Courts have taken a similar approach to that of the US in deciding the applicability of copyright law to yoga techniques or poses. In the case of Institute of Inner Studies vs Charlotte Anderson, 3 the Delhi High Court held that yoga asanas were ancient techniques which were outside the scope of IP protection. The court thoroughly examined the idea-expression dichotomy and held that despite the innovativeness of the Pranic Healing, it will not get copyright protection. The protection extended is limited to the compilation that has been done by the Master, the language and the manner of explanations employed by him in his book and the pictorial content in the book and not for the performance of the techniques themselves.
A main point for discussion is whether a sequence of yoga poses can be treated as compilation which is capable of copyright protection. In order for a compilation to be eligible for IP protection, it is necessary that the resulting compilation should be an original work. It means that it should not be mere collection of already existing works. On this point it has been the stand of the court that even for original compilations, the subject matter should be copyrightable. But since a series of yoga poses constitute an idea, process or method, their compilations have not been afforded protection.
Another curious case is as to whether a sequence of yoga poses can be treated as a choreographic work capable of copyright protection. Both US as well as Indian law affords copyright protection for choreographic works. But the issue with yoga poses lies in the fact that at the end of the day it is still a method or process to which protection does not extend.
As of now, yoga poses are not afforded copyright protection for the reason that it can only be treated as an idea, method or process. However, there is option before for the courts to one day expand its scope by either treating it as a compilation or choreography entitled to copyright protection. The decision of a German court to grant copyright protection to acrobatic dance performance4 as a work of dance could in fact be extended to yoga poses in the future if at all it went beyond a sequence of physical movements and conveyed a particular artistic message.5
Copyright Infringement by Netflix
The current controversy surrounding the Netflix documentary is the alleged copyright infringement by Netflix and Pulse films of certain photos and video footage belonging to the Ghosh's Yoga College, Kolkata. It is alleged that the documentary makes unauthorized use of the pictures and video belonging to the Ghosh College without their permission and has demanded an immediate removal of the same. It is alleged that the documentary uses old footage of Bikram Chowdhary learning yoga and attending school which is owned by Ghosh College. The use of images from the book "Calcutta Yoga" and pamphlet Yoga Cure are being objected to.
Under Copyright law, photographs are protected as artistic work and video footage can be treated as cinematographic film entitled to copyright protection. Netflix's unauthorized use of extracts from Yoga Cure and Calcutta Yoga including photos and contents without attributing credits is indeed blatant violation of the copyright of the authors of these materials.
It is also the claim of the parties that the copyright infringement is not limited to the above-mentioned materials. Any other person whose photos and videos have been used without their permission has also had their copyright infringed. However, it might be a weak allegation as the position regarding personality rights are usually associated with celebrities who want to protect their image and prevent others from cashing in on their popularity. In the present instance, it could be difficult to prove the personality rights violation of ordinary citizens/people.
Conclusion
From the above discussion, it is clear that the hit Netflix documentary on Bikram Chowdhary has stirred up conversation regarding the scope of copyrightability of yoga poses as well as the question of infringement of the right of authors and Ghosh College who claim that there has been illegal and unauthorized use of their work.
The question of copyrightability of yoga poses has been handled by the courts in the above-mentioned cases. But there is still scope for new interpretations on the issue. It will to a great extent be influenced by the law of the particular nation. As of now yoga poses are ineligible for copyright protection according to the courts but there is still a slight chance of certain unique sequences which can be afforded copyright protection if it is proved that it is an original expression of an idea and not an idea itself. With regard to the present controversy wherein the Netflix documentary is in hot waters, it can be treated as copyright violation if the claimants are able to prove their copyright over the concerned photos and the videos.
References
1 105 U.S.P.Q.2D (BNA) 1162
2 101 U.S. 99 (1879)
3 2014(57)PTC228(Del)
4 https://openjur.de/u/122350.html
5 Benjamin Beck and Konstantin von Werder, Yoga and Copyright (https://www.wipo.int/wipo_magazine/en/2017/03/article_0008.html)
7 Yoga and Copyright, (https://www.wipo.int/wipo_magazine/en/2017/03/article_0008.html)
10 No IPR protection for modern yoga techniques, (www.spicyip.com)
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