Written by Susan Neuberger Weller
The U.S. Copyright Office has made it clear through a Statement of Policy released on June 18, 2012 that “functional physical movements such as sports movements, exercises, and other ordinary motor activities alone” are not works of authorship protected under U.S. copyright law. The Statement was issued to clarify the practice of the Office relating to examination of claims of compilations involving uncopyrightable subject matter, and also to clarify the Office’s policy with respect to registration of choreographic works. The Office acknowledged that there was a need to establish a formal policy given questionable court rulings and erroneous issuance of copyright registrations for claims based on physical movement. Based on the Office’s review and analysis of the U.S. Supreme Court’s decision in Feist Publications, Inc. v. Rural Tel. Serv. Co. and its reading of the statute and relevant legislative history, it concluded that in order for a compilation to be protected by copyright its content must fall within one or more of the categories of authorship listed by Congress in Section 102 of the Copyright Act.
A “compilation” is a work created by the collection and arrangement of pre-existing works or materials. For a “compilation” to be protected by copyright, the work as a whole must constitute “an original work of authorship” (17 USC 103). The Feist decision made clear that uncopyrightable facts collected in one place without any element of originality to the collection could not be protected as a copyrighted compilation. Now, the Copyright Office has clarified that a compilation of any other materials that do not fall within one of the specified eight categories of copyrightable works established by Congress in Section 102 of the Act is also not protected under the copyright law. These eight categories include: literary works; musical works, including words; dramatic works, including music; pantomimes and choreographic works; pictorial graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. Section 102(b) states that copyright protection does not extend to any “idea, procedure, process, system, method of operation, concept, principle, or discovery regardless of the form in which it is described explained illustrated or embodied in such work.” Thus, reading all these resources together, the Office has concluded that a compilation of exercise or yoga poses cannot be protected by copyright since it is not one of the eight categories and the underlying material content constitutes a “functional system or process.”
The Office also distinguished between copyrightable “choreography” and yoga or exercise positions or other physical movements. Legislative history indicates that “choreography” does not include “social dance steps and simple routines.” The Statement states that “although a choreographic work, such as a ballet or abstract modern dance” incorporate “simple routines, social dances, or even exercise routines as elements of the overall work, the mere selection and arrangement of physical movements does not in itself support a claim of choreographic authorship.” Rather, it is explained that such a work must contain “at least a minimum amount of original choreographic authorship,” which for copyright purposes must be a “composition and arrangement of a related series of dance movements and patterns organized into an integrated, coherent, and expressive [compositional] whole.”
The bottom line is that no one in the U.S. can claim rights exclusive to the rest of the world in yoga routines, exercise positions, sports movements, simple dance steps, or other simple, functional, physical activity. So, feel free to express yourself in any manner you see fit next time you are on the dance floor, in a yoga studio, in an exercise class or just skipping down the middle of the street at midnight … knowing there’s nothing in the copyright law (at least) to stop you.