Marielena Melero Pardo
Though it initially seems as if exercise would never creep into the domain of intellectual property, a recent controversy has raised the following question: can exercise routines be subject to copyright protection?
This past July, celebrity trainer Tracy Anderson filed a suit in the District Court for the Central District of California against former employee Megan Roup, owner of The Sculpt Society, for copyright infringement, false destination of origin, and breach of contract.[1]Anderson alleges that Roup, in her former capacity as trainer for Tracy Anderson Method, became acquainted with Anderson’s dance-based fitness method as well as her business practices and used this information to launch her own dance cardio company in which she provides classes under the TSS Method.[2] Can Anderson even bring a copyright infringement claim? And is a court likely to hold that a choreography-based fitness method is entitled to copyright protection?
The intersection between exercise and copyright came under legal consideration in National Basketball Association v. Motorola. The Second Circuit held that the NBA does not hold a copyright in basketball games.[3] The District Court for the Northern District of California asserted that sports activities, like basketball, generally cannot be copyrighted because they are “unscripted and do not involve a fixed routine of motions.”[4]
One scholar expounded on this court’s reasoning, arguing that this ruling lends itself to the notion that a scripted exercise routine with a sequence of motions fixed in a tangible medium of expression may be entitled to copyright protection.[5] Accordingly, choreography-based fitness methods like Anderson’s may be protected under copyright law because they are routine-oriented, meaning they can be performed the same way every time. But, is the choreography-based fitness method fixed in a tangible medium of expression?
However, in Bikram’s Yoga College of India v. Evolution Yoga, the District Court for the Central District of California denied copyright protection for a yoga sequence.[6] In its reasoning, the court made clear that, though choreographic works are eligible for copyright protection, the protection does not extend to the ideas contained within them.[7] In the court’s words, “[t]here is a distinction between a creative work that compiles a series of exercises and the compilation of exercises itself. The former is copyrightable, the latter is not.”[8] By a similar line of reasoning, it can be argued that Anderson cannot copyright choreography-based fitness routines in general, rather she can only copyright her exact sequence of dance moves. In fact, the same court, in Hanagami v. Epic Games, made clear that individual dance steps are not protectable under copyright law. Instead, what is copyrightable is “when those steps are incorporated into a longer work” that goes beyond a simple routine.[9] Put simply, a compilation is copyrightable but the individual exercises, or dance moves, within the compilation are not copyrightable. Consequently, it is likely that Anderson is entitled for protection solely for the order and manner in which the dance steps are expressed in her registered choreography if the choreography is fixed.
If this lawsuit moves forward, the Court must perform a balancing act of potential policy implications. On the one hand, not providing enough copyright protection for choreographers would prevent them from reaping the economic benefits of their work and disincentivize artists from creating original choreography.[10] On the other hand, expanding such protection could stifle innovation in choreography. If copyrights are granted to basic choreographic elements, transaction costs would increase because choreographers would be forced to seek permission to use fundamental components of dance.
[1] See Tracy Anderson Mind and Body, LLC v. Roup, 22:22-CV-04735 (C.D. 2022); see also Mara Siegler, Celebrity Trainer Tracy Anderson Sues Sculpt Society’s Megan Roup, Page Six (July 12, 2022), https://pagesix.com/2022/07/12/celebrity-trainer-tracy-anderson-sues-sculpt-societys-megan-roup/
[https://perma.cc/K9LZ-N4JK] [https://web.archive.org/web/20221020015504/https:/pagesix.com/2022/07/12/celebrity-trainer-tracy-anderson-sues-sculpt-societys-megan-roup/].
[2] Id.
[3] Nat’l Basketball Ass’n v. Motorola, Inc., 105 F.3d 841, 846 (2d Cir. 1997).
[4] Open Source Unity v. Choudhury, No. C 03-3182 PJH, 2005 WL 756558, at *3 (N.D. Cal. Apr. 1, 2005).
[5] Karolina Jesien, Don’t Sweat It: Copyright Protection for Yoga…Are Exercise Routines Next?, 5 Cardozo Pub. L. Pol’y & Ethics J. 623, 629 (2007).
[6] Bikram’s Yoga College of India, L.P. v. Evolation Yoga, LLC, No. 2:11-CV-5506-ODW SSX, 2012 WL 6548505 at *1 (C.D. Cal. Dec. 14, 2012), aff'd, 803 F.3d 1032 (9th Cir. 2015).
[7] Id. at 3.
[8] Id.
[9] Hanagami v. Epic Games, Inc., No. 222CV02063SVWMRW, 2022 WL 4007874 at *4 (C.D. Cal. Aug. 24, 2022).
[10] Karolina Jesien, Don’t Sweat It: Copyright Protection for Yoga…Are Exercise Routines Next?, 5 Cardozo Pub. L. Pol’y & Ethics J. 623, 652 (2007).