Bikram Choudhury urged the Ninth Circuit on Friday to halt its judgment that the guru’s hot yoga program cannot be copyrighted so he can petition the Supreme Court to hear the case, saying that the high court should define choreography and address the circuit split in this area of copyright law.
Choudhury asked the appellate court to not transfer the suit back to district court to carry out the judgment, arguing that the Supreme Court must answer unresolved legal questions and matters of first impression regarding the meaning of choreography and compilations, and whether they constitute expression under law.
In January, the Ninth Circuit refused to rehear the suit over the copyrightability of Choudhury’s 26-position sequence of yoga poses, which takes place in a 105-degree room with oral instruction, affirming a ruling that a book describing the sequences is copyrightable while the poses themselves are not. Expressions of ideas, such as those printed in a book, may be protected, but the underlying ideas themselves may not be, the court held.
Choudhury alleges that the Ninth Circuit went against case law regarding the “idea/expression dichotomy … by concluding that an original choreographic work or compilation may be held to be an uncopyrightable idea rather than expressive work despite the existence of innumerable ways to select and arrange the movements — or ‘facts’ — underlying that work.”
Choudhury argues that, according to precedent, the performance should be considered expression and not simply an idea because there are different ways to arrange the yoga poses and that the Copyright Act gives exclusive rights to public performance of that expression.
Choudhury’s motion also argues against the Ninth Circuit’s ruling that the poses are a “Bikram Sequence” to improve health, and not a choreographed work or compilation, saying that the Copyright Act “limits considerations of a work’s ‘usefulness’ to pictorial, graphic and sculptural works.”
The Ninth Circuit appeal started as a suit Choudhury and his business, Bikram’s Yoga College of India LP, brought against Evolation Yoga LLC in 2011, alleging that Evolation infringed Choudhury’s copyright by teaching and performing the “Bikram Sequence” of poses.
The district court ruled for Evolation in 2012, shortly after the U.S. Copyright Office announced in a policy paper that the actual performance of yoga poses cannot be copyrighted, as they do not fall under any of the Copyright Act’s eight categories of authorship.
Choudhury’s motion Friday said that whether something can be copyrighted as a compilation, even if it does not fit one of the categories of authorship, remains open.
After facing similar copyright issues in a suit over Android smartphone software, Google Inc. attempted to weigh in on the Choudhury case, asking the Ninth Circuit to clarify differences in the application of copyright law.
In the Google suit, the Federal Circuit found that Oracle could use copyright law to protect blocks of open source code because Oracle “had multiple ways to express the underlying idea” — an argument similar to Choudhury’s. The Ninth Circuit denied Google’s amicus brief.
Counsel for both parties did not respond immediately to a request for comment Tuesday.
Choudhury is represented by Daniel M. Petrocelli and Ivana Cingel of O’Melveny & Myers LLP.
Evolation is represented by Eric R. Maier and Louis E. Shoch of Maier Shoch LLP.
The case is Bikram’s Yoga College of India LP et al. v. Evolation Yoga LLC et al., case number 13-55763, in the U.S. Court of Appeals for the Ninth Circuit.