Tracy Anderson, the self-described "fitness pioneer," developed the Tracy Anderson Method ("TA Method"), a series of exercise routines combining choreography, fitness, and cardiovascular movement. Anderson claims that her method "can give anyone - regardless of their genetic shape - strong, lean muscles and create balance where there is imbalance in their body." To support this claim, Anderson name checks the many celebrities who have transformed their bodies using her method - including Gwyneth Paltrow, Jennifer Lopez, Victoria Beckham, Robert Downey Jr, and Miss Piggy. (Yup. Miss Piggy.)
For six years beginning in 2011, Megan Roup worked for Anderson as a trainer. When she was hired, Roup signed a contract that prohibited her from using or disclosing the company's confidential information, defined as "nonpublic business and operation information, training materials and manuals, and transcribed methods ... including those comprising the TA Method's proprietary choreography movements." In 2017, Roup parted ways with Anderson and launched The Sculpt Society, which offers in-person classes and on-demand videos for its own exercise program, called the TSS Method. According to its website, the TSS Method "combines powerful sculpting and toning exercises with easy-to-follow dance cardio for a fun and effective workout." The Sculpt Society enjoyed success out of the gate and became (again, according to its website) "the #1 Sculpt and Dance Cardio workout designed to empower women through movement." Roup has her own posse of celebrity fans (including Sofia Richie, Martha Hunt and Shanina Shaik) and currently has over 300,000 followers on Instagram (@meganroup). While Anderson's follower count (@tracyandersonmethod) is considerably larger, Roup's success was worthy of notice.
And notice Anderson did. Believing that her former employee had stolen her proprietary exercise method, and - to add insult to injury - took credit for developing it, Anderson (through her companies) sued Roup and The Sculpt Society in the Central District of California for copyright infringement, violation of the Lanham Act, breach of contract, and violation of unfair competition law. Last month, district Judge Ronald S.W. Lew (C.D. Cal.) granted in part and denied in part Roup's motion to dismiss the complaint under Rule 12(b)(6).
In her complaint, Anderson alleged that (1) she owns valid copyright registrations for nineteen fitness videos, (2) Roup had access to those videos when she was Anderson's employee, and (3) Roup produced and posted on the Sculpt Society website videos that copied, without Anderson's permission, "the choreography movements, sequences, and routines depicted in [Anderson's videos]; organizational structure and format of [Anderson's videos]; and aesthetic elements depicted in [Anderson's videos]." The court held that that these allegations were sufficient to make out a prima facie case of copyright infringement.
Roup urged the court to dismiss the copyright claim on the grounds that Anderson, in essence, was attempting to claim copyright protection in the basic exercise routines and sequences captured in her videos, which is not permissible since those constitute unprotectable ideas or methods rather than protectable expression. See 17 U.S.C. § 102(b). However, the court was not willing, at this early stage of the proceedings, to entertain that argument since "determining the protectability of [Anderson's] copyrighted works would require the Court to conduct a detailed factual analysis unfit for ruling on a motion to dismiss." There will be time for that later. The court elaborated in a footnote:
"Under certain circumstances, a court ruling on a motion to dismiss may independently assess whether works are not substantially similar. Here, however, the Court cannot properly examine and compare the works to determine non-infringement. Plaintiffs have provided three examples broadly describing how Defendants' 'choreography movement, sequences, and routines are substantially similar' to those depicted in Plaintiffs' copyrighted works. But Plaintiffs did not submit the referenced videos with their FAC. Moreover, Plaintiffs state that '[b]ecause Defendants' videos are published behind a paywall,' Plaintiffs are 'unable to review and compare every one of Defendants' videos' with their own, and therefore, 'the full extent of Defendants' infringement ... cannot be assessed until Defendants produce the videos to Plaintiffs in discovery.' Consequently, the Court is unable to determine non-infringement at this stage of litigation." (Citations omitted and cleaned up.)
The copyright claim may have survived for the time being, but Anderson ultimately will have to identify the specific elements of her videos that were copied by Roup, and the court will have to determine which of those elements, if any, are protectable under copyright law. While original choreography is subject to protection under copyright law, basic dance moves are not. And exercise sequences that provide a functional benefit to the exerciser likely are not protectable either. See Bikram's Yoga College of India, L.P. v. Evolation Yoga, LLC , 803 F.3d 1032 (2015) (yoga sequences not copyrightable subject matter because they constitute "an idea, process, or system designed to improve health" that "primarily reflects function, not expression"). It would seem that, as the case proceeds, Anderson will have a hill to climb to succeed with her copyright infringement claim. (Fortunately for Anderson, her glutes are up to the task.)
Violations of the Lanham Act/False Advertising
To defeat the motion to dismiss her Lanham Act claim for false advertising, Anderson must have properly alleged in her complaint: (1) that Roup made a false statement of fact in a commercial advertisement about Roup's or Anderson's products; (2) the statement actually deceived or has the tendency to deceive a substantial segment of its audience; (3) the statement is likely to influence consumers' purchasing decisions; (4) Roup caused the false statement to enter interstate commerce; and (5) Anderson has been or is likely to be injured as a result of the false statement, either by direct diversion of sales or by a lessening of the goodwill associated with Anderson's products. See 15 U.S.C. § 1125.
Roup's biography on the Sculpt Society website includes the following two sentences:
"I knew that there was something missing from the boutique fitness community, so I combined my passion for dance and love for fitness to create The Sculpt Society. I spent years teaching fitness and developing The Sculpt Society method before launching in 2017."
Anderson alleges that these sentences are false and misleading because they state or imply that (1) Roup developed her TSS Method over a period of multiple years; (2) the TSS Method was created by Roup through years of science-based research, development, data collection, analysis, and trial and error; and (3) the TSS Method is significantly different from Anderson's TA Method. Anderson contends that each of these statements is untrue since the TSS Method is, in fact, based on the TA Method, and Anderson (not Roup) developed the TA Method.
To support its motion to dismiss, Roup argued that these statements constituted non-actionable puffery. Judge Lew agreed. Roup's statement that she "knew something was missing from the boutique fitness community, so [she] combined [her] passion for dance and love for fitness to create The Sculpt Society" did nothing more than "convey a general, vague, and unmeasurable assertion regarding inventorship and the innovativeness of [Roup's] products." And Roup's statement that she "spent years teaching fitness and developing The Sculpt Society method before launching in 2017" was partly true (it was undisputed that Roup worked for Anderson as a fitness instructor) and otherwise constituted "another general and vague assertion of inventorship." Moreover, the court found that it was unlikely a reasonable consumer, when making a purchasing decision, would rely on these general statements about the genesis of the Roup's fitness program. To paraphrase, consumers don't really care how or why Roup developed her exercise program; they only care about whether the program will give them results.
Breach of Contract
With little analysis, the court refused to dismiss Anderson's breach of contract claim, finding that the allegations in the complaint were sufficient to make out a prima facie case that Roup had breached the contract's prohibition against using or disclosing Anderson's confidential information, including Anderson's "nonpublic business and operational information, training materials and manuals, and the transcribed methods taught to trainers, including those comprising the TA Method's proprietary choreography movements, sequences, and routines." The court put off for another day the question of precisely what confidential information Roup used to create her exercise program.
Of course, to the extent that the "TA Method's proprietary choreography movements, sequences and routines" have been published and made available without restriction to the public, Anderson can no longer claim that they are confidential. As the case continues, Anderson will have to demonstrate that Roup actually used (or disclosed) information that is truly confidential in violation of her employment contract.
Violation of CA Unfair Competition Law
Finally, the court dismissed Anderson's claim that Roup had violated California's Unfair Competition Law ("UCL") which prohibits "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." Cal. Bus. & Prof. Code § 17200. Each prong of the UCL - unlawful, unfair and fraudulent - provides a separate basis for liability. Specifically, Anderson contended that Roup violated the unfair and fraudulent prongs of the UCL by: (1) using Anderson's confidential information to form and operate the TSS Method, which competes with Anderson's program, and (2) making the same false and/or misleading statements of fact that are the subject of Anderson's Lanham Act claim.
To state a claim under the "unfair" prong of the UCL, Anderson must allege in her complaint that Roup engaged in "conduct that threatens an incipient violation of an antitrust law or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition." Since Anderson failed to allege facts to support that Roup's had engaged in this type of conduct, Anderson failed to alleged a viable claim for relief under the UCL's "unfair" prong.
To state a claim under the "fraud" prong of the UCL, Anderson must allege facts with particularity (in accordance with the requirements of FRCP 9(b)) to support that members of the public are likely to be deceived by the alleged fraudulent business practice (i.e., the alleged misrepresentations made by Roup on her website). In addition, to have standing under the UCL's fraud prong, Anderson must plead actual reliance on the alleged fraudulent misrepresentations. When a competitor like Anderson brings a claim under the "fraud" prong of the UCL, must the competitor plead its own reliance or can the competitor satisfy the standing requirement by pleading reliance by consumers? Judge Lew noted that this issue has not yet been addressed by any California state court, and the Federal district courts are split on the issue. Applying the majority view that a competitor-plaintiff like Anderson must allege her own reliance, the court determined that Anderson had failed to plead with specificity that she had actually relied upon Roup's alleged misrepresentations.
Since Anderson had not sufficiently alleged facts to support violations of either the unfair or fraud prongs of the UCL, the court granted Roup's motion to dismiss the UCL claim.
Leave to Amend
The court, however, granted Anderson leave to amend the complaint since the pleading defects were potentially curable, and since there was no evidence of bad faith or undue delay on Anderson's part or potential prejudice to Roup by allowing amendment.
Tracy Anderson Mind & Body, LLC vs. Roup, No. CV 22-4735-RSWL-Ex, 2022 WL 17670418 (C.D. Cal. Dec. 12, 2022)
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