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“What’s really upsetting yoga teachers is that Bikram claims that no one can teach even a small number of asanas—or poses—in the same order that he teaches them. That’s like the authors of The Sound of Music suing the Jackson Five because they used do-re-mi in a new song.”

-ELIZABETH RADER '87

 

Copycats or coaches?

By ALICIA BESSETTE

You might have heard about Bikram yoga, or hot yoga, a vigorous 90-minute routine of 26 poses practiced in a room heated to 100 degrees Fahrenheit.

You might have heard about Bikram Choudhury himself, who has been called yoga’s “bad boy” and is a self-proclaimed guru to Beverly Hills’ rich and famous.

But you might not have heard about the legal melee surrounding Bikram—and involving intellectual property lawyer Elizabeth Rader ’87.

Bikram has copyrighted and trademarked his name and the script that he says teachers must recite while leading a Bikram yoga class. To enforce what he sees as his proprietary rights, Bikram has sued two yoga teachers and issued cease-and-desist letters to more than 20 others. His actions have major implications for patent and copyright law, as well as for anyone who teaches practical subject matter.

Rader, a non-residential fellow with Stanford’s Center for the Internet and Society is represent-

ing Open Source Yoga Unity (OSYU), an organization of yoga teachers challenging Bikram’s claim that he can copyright a yoga routine and sue instructors for teaching it. OSYU maintains that Bikram does not have the legal right to impose control over another’s yoga teaching or practice, and that yoga exists in the public domain.

Bikram has compared his standpoint to that of musicians seeking copyright on their compositions: Do-re-mi is in the public domain, he argues, but a musician can create a melody from it and copyright the resulting song.

But that argument is inadequate, Rader says. “What’s really upsetting yoga teachers is that Bikram claims that no one can teach even a small number of asanas—or poses—in the same order that he teaches them,” she says. “That’s like the authors of The Sound of Music suing the Jackson Five because they used do-re-mi in a new song.”

Rader adds that just as do-re-mi is a rather obvious sequence—the first three notes in the ascending scale—the asanas in Bikram’s sequence are in practical order. Warm-up asanas come first, then, according to Calcutta tradition, standing exercises. Floor asanas are last, working the muscles supporting the spine in a particular order.

“What Bikram is doing is somewhat like copyrighting a menu in which he starts with salad, then serves roast beef and potatoes and then apple pie, and then sues anyone who serves ‘his’ special dinner,” Rader says.

She notes that a professor would not assume that her authorship of a syllabus gives her the exclusive right to teach the curriculum reflected in the syllabus. Furthermore, Rader says, yoga teachers bring more to their teaching than slavishly reciting instructions for how to assume the asanas. “They observe each student and offer feedback and often physical corrections. Yoga teaching has as much in common with massage or physical therapy as it does with an academic lecture or giving a speech.”

Bikram claims that his yoga routine is an exercise to improve the body and cure bodily ailments and diseases. Exercise, Rader points out, is not copyrightable subject matter under the Copyright Act and the U.S. Copyright Office’s rules. “His lawyers came up with the idea that yoga is a ‘performing art’ like pantomime or ballet,” Rader says. “We’re confident that no court will buy that.” Her own practice of yoga confirmed her initial reaction that a Bikram yoga class is an exercise class. “I know there are yoga competitions, but even those are athletic competitions, not ‘performance’ in the way that a ballet production is a performance,” she says.

Patent vs. copyright

Copyright and patent are two distinct kinds of intellectual property. Copyright protects original works of authorship in order to encourage people to create. Copyright does not protect ideas, inventions, systems or methods even though they may be described or explained in a copyrighted work.

Patents, on the other hand, protect practical knowledge, provided the inventor meets all the strict requirements for patentability. “Many, many great and worthwhile systems and methods cannot be patented, no matter how much work someone put into them, because they are deemed obvious, or the inventor waited too long to apply for a patent or did not describe them well enough in her application,” Rader says.

Patents are harder to acquire than copyrights, cost more and take longer to process. Patents last for 20 years; copyrights last longer because they do not monopolize know-how, but very specific expression.

“So if an inventor could just write a book about, say, a method of curing arthritis, and file a form in the copyright office calling it a creative work of the performing arts, and get exclusive patent-like rights to practice and teach that method for many times the length of the patent term, the patent office—and patent attorneys—would be out of business,” Rader says.

Internet law

A Growth and Structure of Cities major, Rader became interested in law while reading catalogs for graduate-level city planning programs. A joint degree program in planning and law caught her eye, and she circled all the classes that looked interesting, then realized most of them were law classes. She went on to earn her law degree cum laude from the University of Minnesota Law School. She clerked for the U.S. Court of Appeals for the Federal Circuit and for the United States District Court for the Eastern District of Virginia. More recently she has counseled technology clients concerning intellectual property rights, privacy and other aspects of Internet law.

With intellectual property law, Rader enjoys the mE9lange of art and psychology in developing arguments. “In most cases, you’re trying to get at what’s going on in someone’s head,” she explains. “What does a consumer think as she searches for a key word or clicks on a link or sees a web site?

“Back in 1994 or so, I remember thinking, there is no ‘Internet law’ because all the Internet cases were really copyright cases, personal jurisdiction cases, contract cases, defamation cases, and so on,” Rader says.

But that quickly changed. “First, whole different business models grew up that aren’t really analogous to anything before the Internet, made possible by the Internet. And second, Congress began passing legislation expressly governing the Internet.” Rader sites the Digital Millennium Copyright Act, the Child Online Protection Act and AntiCybersquatting legislation. “These kinds of statutes can keep a lawyer busy full time. What’s interesting is that there are so many cases that are hard, that are not easy to predict, so you have room to be creative and persuasive and to influence the development of the law.”

Rader’s advice to aspiring IP lawyers? Read the news! “A lot of law students say they are interested in this area, but they can’t really express why,” she says. “The ones that impress me most have read about current cases or new statutes and have opinions on them.”

Networking is a valuable tool for lawyers, and Rader praises the Alumnae Association’s strides in concert with Bryn Mawr’s career development office to organize a lawyers’ affinity group to help students and alumnae make these connections. “When I was a student, I always thought I would be bothering alumnae if I called them,” Rader says. “But in fact I’m always tickled when a Bryn Mawr alumna contacts me, and I try to help everybody. Don’t be shy about asking for advice.”

For more information on Bikram yoga and the lawsuit, see www.bikramyoga.com and www.yogaunity.org. For more information on Rader and her practice, see cyberlaw.stanford.edu/blogs/rader. To receive information on the Bryn Mawr alumnae lawyer affinity group, contact Associate Director of the Alumnae Association Sarah Doody at 610-526-5316 or by email.

 

 

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