Roger writing the LAWmag
01
Mar 2010

Bikram Yoga Law: Savasana, Baby!

A 30-day Bikram yoga challenge, all 105°F, 90-minute, 26 posture-torture sets of it, quiets and qualifies a lawyer's body and mind. The better to interlock all ten fingers and contemplate complex copyright issues.

Bikram yoga is named after an eccentric 63-year old, Calcutta-born Bikram Choudhury.

Bikram immigrated to the USA in 1971 - he says that former US president Richard Nixon discreetly rewarded him with immigration papers after Bikram attended upon the then-ailing President in Hawaii; all, of course, completely unverifiable.

Bikram on cashBikram has since become a self-made multi-millionaire with a $10,000 USD franchise fee and a monthly fee of at least $1,000. You can't host or teach Bikram Hot Yoga® unless you've paid the fee, and attended a nine-week class, with a steep $10,500 tuition, all in US dollars.

In an interview he gave to Mother Jones Magazine in 2005, Bikram quipped:

"Bikram yoga is so big. This is a bathroom slipper you buy (for) $2 in Kmart. But you put Bikram on it, it'll sell for $35 in a second."

There are many yoga studios out there but Bikram swears by his standard 90-minute routine as do many celebrities. Bikram never misses a chance to drop a name, including that of the former President of the United States. Wayne Gretzky, Tiger Woods, Elle Macpherson, Madonna, George Clooney, Kareem Abdul-Jabar, Roberto Luongo,  Quincy Jones, John McEnroe - all Bikram enthusiasts.

Yoga itself, is steeped in history and spiritualism, with over 8,000 poses, some 5,000 years old.

The brother of Bikram's guru wrote of yoga, in a 1946 biography:

"... these Indian contributions will reach the whole world. They will become public property. No patents will ever be taken. The spirit of our national culture demands that we should forever be free from the desecration of utilizing knowledge only for personal gain"

Yoga has rarely been before the courts but when it has, it has been taken as a form of religion.1

But Bikram has commercialized it and lined up lawyers to defend his every yoga penny.

With the press lampooning it as McYoga, a search of the US Trade-Mark Office shows that Bikram Yoga College of India, Bikram and even Bikram's Beginning Yoga Class are all registered trademarks. The owner:

"Choudhury, Bikram, 1862 S. La Cienega Boulevard Los Angeles California 90035"

Bikram, a zealous new capitalist, has also filed eight different copyright registrations with the US Copyright Office since 1979. An example is a 44-page document, backed up by the concurrent registration of the audio tape of, you guessed it:

Bikram’s Yoga college of India beginning yoga dialogue.

Bikram does not find imitation flattering and samples of cease-and-desist letter from his lawyers are legion. In 2000, Mark and Kim Morrison began to simulate the Bikram dialogue, but added some music and turned the heat down. When Bikram found out, he sued. In June of 2003, Federal judge David Carter endorsed a consent order under which the Morrisons had to apologize to Bikram and pay a substantial sum of money in damages.

In a press release issued by his lawyer Jacob Reinbolt of Procopio, Cory, Hargreaves & Savitc in February of 2003, Bikram announced that he had obtained copyright for "original work of authorship in his asana sequence of 26 postures and 2 breathing exercises". His lawyer added:

"Please join us in congratulating Bikram for more than three decades of groundbreaking work in bringing to fruition the recognition of the priceless intellectual property assets that are Bikram Yoga. Bikram will be entitled to receive an award of statutory damages of up to $150,000 per infringement and can also recover  his attorneys' fees from infringers in lawsuits concerning copyright infringement of the sequence.

"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 the addition of extra elements to the sequence, like music."

Others raise eyebrows at what they see as Bikram's attempt to assert intellectual property rights over health, quasi-meditation techniques that are thousands of years old and which, by definition, have been designed and taught as open source material. If his Yoga Inc. legal strategy is successful, what happens to karate, judo and many other forms of sport which are based on ancient but never-before copyrighted or trade-marked practices?

As Susman points out in his Loyola of Los Angeles Entertainment Law Review article on Bikram and copyright:

"In general, courts have held that athletic performances are outside the realm of property.... Thus, an athlete’s particular tennis serve, volleyball spike, or golf swing may be unique and original, but it will not be afforded copyright protection."

Bikram's primary intellectual property rights are for a compilation, a choreographed set of:

"... 26 yoga postures and 2 breathing exercises ... always performed in precisely the same order in a room heated to 105 degrees Fahrenheit ... accompanied by a rigidly prescribed series of oral instructions and commands ... for precisely 90 minutes."2

But the Bikram copyright is being queried by intellectual property experts. While it reflects the rule of law that a compilation of non-original material may, in itself as a package, qualify for copyright, the sequence appears to fly in the face of the non-registrability of a system, as the United Supreme Court ruled in Baker v Selden (1879; Baker had tried to copyright not just a book, but a system of bookkeeping).

Bikram's aggressive business plan spooked traditional yogis and provoked the formation of an Open Source Yoga Unity, a non-profit created by rival yoga studios. OSYU sued Bikram in Federal Court, challenging his interpretation of copyright law, then went for broke and tried to obtain summary judgment. That application was denied but the judge added:

"On first impression, it thus seems inappropriate, and almost unbelievable, that a sequence of yoga positions could be any one person's intellectual property."

Yet the court found that a sequence of yoga postures (asanas) might be subject to copyright protection:

“.. a combination of unprotectable elements . . . if those elements are numerous enough and their selection and arrangement are original enough that their combination constitutes an original work of authorship.

"(W)hile functional and public domain material remains free for all to use, a compilation of that material may nonetheless qualify for copyright protection if the compiler can demonstrate a sufficient level of creativity in the selection and arrangement of the elements in the compilation.

"(Bikram Choudry) could properly enjoin exact or near-exact duplication of his yoga sequence, if the routines taught by OSYU were substantially similar to Choudhury’s and thus infringing."

In the end, nothing was gained by the yoga community by the lawsuit as it resulted in a confidential settlement agreement.

Bikram yoga is an intense workout, a 90-minute stretching boot camp in hot conditions. There is no evident exposure to liability associated with the odor of the room, lined with sweating yogis, but those studios that have carpeted floors may be exposed to tort claims based on air quality; and this said from personal experience. The carpet is supposed to provide the softest flooring for slips and falls but it also collects sweat and simmers it in 104°; hardly a recipe for clean air.

After three consecutive days of yoga on the old brown carpet surface of a Kelowna studio in February of 2010, this article is being written under the cover of a red swath of a skin reaction on the lower brow. Throw in the rank odor and the verdict is in: it takes dedication to do Bikram yoga on a carpeted surface.

Bikram's dialogue urges the students to work through their injuries. At one point, the dialogue extols the yogi to bend his or her neck back - all the way, adding "it's supposed to hurt like hell".

The Bikram website posts testimonials that credit his yoga ritual with effective treatment of cancer, high blood pressure, heart disease, diabetes, hepatitis, arthritis and depression.

Last year, a Victoria, B.C. lawyer "blew out her knees" while practising Bikram. Suing never crossed her mind: as of February 2010, she was back in the studio.

What can drive a Bikram yoga beginner nuts is the use of the same words by the instructors, no matter who they are and anywhere in the world. They all tell you to bend your head to your knees "like a Japanese ham sandwich" or "stretching is the object of pulling, pulling is the object of stretching" (all phrases © Bikram Choudhury).

The dialogue is so Bikram, it even adopt his faulty English grammar ("put your exact forehead to your knees") and it is rigidly and religiously repeated over and over again - indeed, it's part and parcel of the Bikram hot yoga product.

But this places most instructors in the unenviable position of losing any sense of customization. Out goes the dialogue like an audio cassette that plays over and over again, as new and old knee and back injuries seep into the room, unawares. The dialogue forces a standard series upon disparate yogis.

The design of Bikram hot yoga pushes the beginner yogi hard. This is no couch-potato, Enya-music, 40-something-on-mats yoga. This is a real workout.

Meanwhile, back at the palace, Bikram lives and acts like a royal Indian prince. One graduate tells a story of Bikram in only his tiny black Speedo, reviewing students at a recent training seminar while lying on his back in a lounge chair, his long hair brushed by an attendant while another ran for a glass of water. The Internet is rife with images of Bikram wearing tiny white Speedos with red flames. He once told a reporter in defending allegations of sex with his students, that it did it only to save them from suicide.

He told the now defunct Business 2.0 magazine:

"I'm beyond Superman. I have balls like atom bombs, two of them, 100 megatons each. Nobody fucks with me."

Bikram has now moved into franchising while some observors see the Bikram empire as crumbling because of the tight control and greed of the man himself. There is no national advertising campaign to help his franchisees. Many are balking at the steep fees and opening up alternate studios which present substantially the same product with sufficient changes on points of detail to tease their way out of the crosshairs of Bikram's lawyers.

Bikram boasts that his yoga brings faith, self-control, determination, concentration and patience. But if you're Bikram Choudhury himself, you'd have to add your students' money to that list.

In the wake of Bikram's yacht, copyright law is tied up like an eagle pose (pretzel for the uninitiate) even while the for's and against's crow and heckle each other. Most unseemly for yogis.

This is one asana that won't end until undone by a court of law, and at an outright frigid 70°F.

Savasana, your honor!

REFERENCES:

  • Baker v Selden 101 US 99 (1879)
  • Bikram's Yoga College of India, website (as of 16 FEB 2010)
  • Choudhury v Schreiber-Morrison and Morrison, US District Court, Central District of California, Southern District, Case #SA02-565 DOC(ANX) (Note 2, ¶13)
  • Farrell, M., Bikram Yoga's New Twist, Forbes Magazine, Sept. 3, 2009
  • Keegan, P., "Yogis Behaving Badly", Business 2.0, Sept. 2002, page 118
  • Kurlantzick, J., The Money Pose, Mother Jones Magazine, March/April 2005
  • Malnak v. Yogi, 592 F.2d 197, 197-98 (3d Cir. 1979; Note 1). But see the contrary view in Altman v Bedford 245 F.3d 49, 65-66 (2d Cir. 2001).
  • Open Source Yoga Unity v. Choudhury, 2005 WL 756558, 74 U.S.P.Q.2d 1434, N.D.Cal., April 01, 2005(No. C 03-3182 PJH.)
  • Reinbolt, J., Bikram Obtains Copyright Registration for his Asana Sequence, 5-FEB 2005
  • Susman, J., Your Karma Ran Over My Dogma: Bikram Yoga and the (Im)Possibility of Copyrighting Yoga, 25 E.L.R. 245 (2005)
  • Wells v. Monsen, 7 A.D.3d 518, 775 N.Y.S.2d 586, 2004 WL 945172, 2004 N.Y. Slip Op. 03557, , N.Y.A.D. 2 Dept., May 03, 2004

Posted in Current Events, Law Fun
on
by

Attached Images

  • Bikram Yoga Law: Savasana, Baby!