In a rather long and wordy “Statement of Policy” in the Federal Register a few weeks ago, the Copyright Office recently noted publicly that series of exercises or yoga routines is not a protectable expression under copyright law.  I disagree – read on – and think that while most such routines should not be protected I think it is possible that some are and I would not shut the door on them entirely.

It is not entirely clear to me – despite the publication’s efforts – how a compilation or routine for excercise or yoga is different from a protectable series of ballet or dance moves. The dance moves themselves are presumably public domain. In noting that a dance routine can be protected, the Copyright Office says that “Choreographic authorship is considered, for copyright purposes, to be the composition and arrangement of a related series of dance movements and patterns organized into an integrated, coherent, and expressive whole.” 

The directive creates more questions than answers for me. If a series of dance moves could be protected, why can’t a series of exercise maneuvers? Where is the line drawn. Is a series of aerobics maneuvers dance or exercise? What about Zubma®?  The video recording of a yoga routine protectable as a video, but the protection would not extend to the movements. Isn’t some music at its core a series of notes? The individual notes themselves are not protectable, I presume, but at some point a compilation of them becomes a protectable expression. I think the same is possible – though not common – for exercise or yoga routines.  

Further complicating the issue is the Copyright Office’s admission that it has issued several registrations that it now says are invalid and unenforceable. 

In sum, I disagree with the Copyright Office’s ruling – I would at least leave the door open to the possibility that an exercise or yoga routine was so creative, original, and expressive that it could be registered and protected.

[I also wish the Copyright Office could communicate in a manner that was more clear and to the point. Some of the responses to application  I have received recently from the Copyright Office are very difficult to understand and read like they were written by robots.]

One group who agrees with the rule is YogaTruth.org – a site devoted to “open source” yoga.

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