While The Scope Of Copyright Protection Is Broad, Two Recent Cases Involving Yoga Positions And Recipes Show That There Are Limits
In a recent post in this space, we commented on several cases that illustrated that the scope of copyright protection is extremely broad (see here: https://affinitylaw.wordpress.com/2015/09/30/three-cheers-for-the-wood-flooring-recent-cases-confirm-copyright-protection-for-cheerleader-uniforms-and-wood-flooring-pattern). Two recent cases show that while copyright protection is broad, there still are limits:
Bikram’s Yoga College of India, L.P. v. Evolution Yoga, LLC: In this well-publicized case, the issue was whether a sequence of 26 yoga positions and two breathing exercises practiced in a specific order, called the “Sequence” and developed by Bikram Choudhury (a seminal figure in making yoga so popular in the United States and throughout the world and the creator of Bikram Yoga, sometimes called “hot yoga”), could qualify for copyright protection. In 1979, Choudhury published the book “Bikram’s Beginning Yoga Class” that includes descriptions and photographs of the Sequence in practice. In 2002, Choudhury also registered a copyright on the “compilation of exercises” contained in his book. In 2009, the defendants founded their own yoga studio and offered “hot yoga” classes that included the Sequence. Choudhury sued for copyright infringement claiming that the defendants infringed on his copyrighted works by offering yoga classes featuring the Sequence.
On October 8, 2015, the Ninth Circuit Court of Appeals held that the Sequence falls squarely within the exclusion detailed in Section 102(b) of the Copyright Act, which excludes from copyright protection “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated or embedded in such work.” The Ninth Circuit found the Sequence was a process for obtaining physical and emotional fitness and was, therefore, not copyrightable.
Tomaydo-Tomahhdo, LLC v. Vozary: The issue in the Tomaydo-Tomahhdo case was whether a book of recipes could qualify for copyright protection. The plaintiff was a restaurateur who created and ran a successful restaurant and delivery catering business. In 2012, the plaintiff assembled a book of recipes that had been developed for the restaurant. The defendant was a former partner in the plaintiff’s business. He copied the plaintiff’s recipes and used them in a competing catering business, and the plaintiff sued him for copyright infringement.
On October 20, 2015, the Sixth Circuit Court of Appeals held there was no copyright infringement because neither the recipes themselves nor the book which compiled the recipes were entitled to copyright protection. In so holding, the Sixth Circuit explained that the recipes themselves are not covered by copyright because they are simply listings of facts (i.e. the ingredients) and functional instructions how to assemble the ingredients. Likewise, the Sixth Circuit held that the recipe book did not have any originality (such as original commentary, pictures, etc. by the author) that qualified for copyright protection separate from the recipes themselves.
In both the Bikram Yoga case and the Tomaydo-Tomahhdo case, the parties claiming copyright protection may have been able to take steps to protect their intellectual property other than merely claiming copyrights in the materials addressed by those cases. As always, we highly recommend that businesses consult with experienced intellectual property counsel to assess what IP protection may be available to the business.
Here’s a link to a very interesting and informative discussion in today’s New York Times about the complicated topic of copyright protection for fashion designs: http://www.nytimes.com/roomfordebate/2014/09/07/who-owns-fashion?emc=edit_th_20140908&nl=todaysheadlines&nlid=44964334
From the “you thought you had seen everything” department, we bring you the question of who — if anyone — owns the copyright to the now famous “monkey selfie” picture. By now, most of you probably have heard or read about this story. A British nature photographer was travelling in a national park in Indonesia and left his cameras unattended for a few minutes. A band of black macaque monkeys – thought to be among the most intelligent breeds of monkeys — wandered by. One of them grabbed an unattended camera and took a series of “selfies” which actually are quite excellent, stunning and humorous. Here are some examples of the monkey selfies:
Ultimately, the photos ended up on Wikipedia, who refused to take them down after objection from the photographer because, in Wikipedia’s view, the photographer doesn’t own any copyright rights in the monkey selfies since he didn’t take the pictures.
In the ordinary case, a person who takes a selfie normally would own any copyright rights that would attach to the selfie. However, under United States copyright law, a non-person like a monkey cannot own a copyright. Therefore, it is clear (please hold your laughter!) that the monkey doesn’t own the copyright in his/her selfies.
But the question remains: does anyone own a copyright in the pictures? If the photographer had exercised some creativity by setting up the camera, arranging the shot, setting the exposure, etc., and then the monkey just pushed the button, the situation would not be that much different from a picture taken using a timer so the photographer might have a good argument that he owns the copyright. But that does not appear to be the facts here – instead, the pictures appear to be the product of the random acts of the monkey or maybe (if possible???) the creativity of the monkey not the photographer. So it does not appear that the photographer has any claim to the copyright.
For legal purposes, a monkey could be considered “property” under certain circumstances. There have been cases that have held that the owner of the property can own the copyright that might attach to the property in some way – think of a random video of a dog doing something funny. Which could mean that the owner of the monkey is the owner of the copyright. However, the monkey that took the selfie here was a wild monkey. It may be possible to determine whether Indonesia owns its wildlife, but such a result seems doubtful. Instead, the most likely result here is that Wikipedia is correct: no one owns the copyright in the monkey selfies but instead the photos are in the public domain.
This post is courtesy of our law clerk Ashley Franco, an exceptional student at California Western School of Law who just finished her second year:
The answer to the question posed by the title to this post is the typical lawyerly “it depends.” It is important to distinguish between the ownership rights to the tangible tattoo itself (the inking of the skin) and the exclusive rights that may be conferred by the copyright laws for the tattoo design. The ownership rights to the tangible tattoo (the skin itself) of course belong to the tattoo bearer. However, the “author” of the tattoo (i.e. tattoo designer or artist) may have exclusive copyright rights in the design of the tattoo.
Under Section 101 of the Copyright Act, a creator of an original work that is fixed in a tangible medium of expression for more than a transitory duration is granted copyright protection for the original elements of the work. A tattoo may be an original work and of course it is fixed in a tangible medium (the body) for more than a transitory duration so copyright law applies to tattoos and the tattoo “author” may be entitled to copyright protection for original tattoo designs. It is important to remember that copyright only protects “original” works of authorship so non-original tattoos (i.e. a generic shamrock for example) may not qualify for copyright protection.
Copyright protection grants the copyright owner six exclusive rights: (1) the right to reproduce (2) the right to prepare derivative works (3) the right to distribute (4) the right to perform the work publicly (5) the right to display the work publicly, and (6) the right to perform the work publicly by digital transmission. To determine the ownership of the exclusive rights, it is important to determine who is the “author” of the tattoo. The “author” may be the tattoo artist, the tattoo bearer, or both, depending on who contributed to the tattoo design. The “author” may also be the tattoo artist’s employer, through a copyright doctrine known as the “work made for hire” doctrine.
As tattoos have gained popularity, more suits have arisen by tattoo artists claiming copyright infringement. Most tattoo copyright infringement cases filed by artists are settled. Therefore, the courts have yet to decide who owns what rights in a tattoo.
The case of Whitmill v. Warner Brothers is an interesting “tattoo infringement” case. In Whitmill, Victor Whitmill designed a now-famous tribal tattoo for Mike Tyson, which he had tattooed on his face. A copy of the tattoo later appeared in “The Hangover II”, on Ed Helms’s face. Thereafter, Whitmill filed suit seeking monetary damages for copyright infringement of the Tyson tribal tattoo, and a preliminary injunction preventing the release of the film. The trial judge commented that tattoos could be in fact be copyrighted, and that there was a high likelihood of Whitmill (the tattoo artist) prevailing on the merits. However, the parties settled before the court could weigh in on how the copyright laws would be applied to tattoos.
Many suits have arisen against the NFL and NBA and their marketing partners because athletes’ tattoos often are copied and displayed on an array of media (i.e. posters, video games). As a result, athletes and marketing companies now often implement contracts which require tattoo artists to waive their rights to copyright.
We expect that tattoos will continue to gain in popularity among celebrities, athletes and common folk alike, and tattoos will become more and more elaborate and unique. Therefore, it may be a wise investment for a person spending a lot of money to get a unique, elaborate tattoo or a tattoo artist designing a unique tattoo, to have an attorney draft a contract that clearly states who owns what rights in and to the tattoo.