FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`BIKRAM’S YOGA COLLEGE OF INDIA,
`L.P., a California limited
`partnership; BIKRAM CHOUDHURY,
`an Individual,
`
`Plaintiffs-Appellants,
`
`No. 13-55763
`
`D.C. No.
`2:11-cv-05506-
`ODW-SS
`
`v.
`
`EVOLATION YOGA, LLC, a New
`York limited liability company;
`MARK DROST, an Individual; ZEFEA
`SAMSON, an Individual,
`Defendants-Appellees.
`
`OPINION
`
`Appeal from the United States District Court
`for the Central District of California
`Otis D. Wright II, District Judge, Presiding
`
`Argued and Submitted
`May 8, 2015—Pasadena, California
`
`Filed October 8, 2015
`
`Before: John T. Noonan, Kim McLane Wardlaw,
`and Mary H. Murguia, Circuit Judges.
`
`Opinion by Judge Wardlaw
`
`

`
`2
`
`BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
`
`SUMMARY*
`
`Copyright
`
`Affirming the district court’s grant of partial summary
`judgment, the panel held that a sequence of yoga poses and
`breathing exercises was not entitled to copyright protection.
`
`The panel held that under 17 U.S.C. § 102(b), the
`“Sequence,” developed by Bikram Choudhury and described
`in his 1979 book, Bikram’s Beginning Yoga Class, was not a
`proper subject of copyright protection because it was an idea,
`process, or system designed to improve health, rather than an
`expression of an idea. Because the Sequence was an
`unprotectible idea, it was also ineligible for copyright
`protection as a compilation or choreographic work.
`
`COUNSEL
`
`Ivana Cingel (argued), Carla Christofferson and Daniel
`Petrocelli, O’Melveny & Myers LLP, Los Angeles,
`California, for Defendants-Appellants.
`
`Eric R. Maier (argued) and Louis Shoch, Maier Shoch LLP,
`Hermosa Beach, California, for Plaintiffs-Appellees.
`
`Kevin M. Fong and Cydney A. Tune, Pillsbury Winthrop
`Shaw Pittman LLP, San Francisco, California, for Amicus
`Curiae Yoga Alliance.
`
` * This summary constitutes no part of the opinion of the court. It has
`been prepared by court staff for the convenience of the reader.
`
`

`
`BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
`
`3
`
`OPINION
`
`WARDLAW, Circuit Judge:
`
`We must decide whether a sequence of twenty-six yoga
`poses and two breathing exercises developed by Bikram
`Choudhury and described in his 1979 book, Bikram’s
`Beginning Yoga Class, is entitled to copyright protection.
`This question implicates a fundamental principle underlying
`constitutional and statutory copyright protection—the
`idea/expression dichotomy. Because copyright protection is
`limited to the expression of ideas, and does not extend to the
`ideas themselves, the Bikram Yoga Sequence is not a proper
`subject of copyright protection.
`
`I. Factual and Procedural History
`
`The Indian practice and philosophy of yoga date back
`thousands of years. See Linda Sparrowe, Yoga 9 (2002).
`Derived from ancient Hindu scriptures, including the
`Bhagavad Gita, the practice of yoga teaches students to attain
`spiritual fulfillment through control of the mind and body.
`See Stefanie Syman, The Subtle Body: The Story of Yoga in
`America 4 (2010). Yoga has evolved into a diverse set of
`spiritual, philosophical, and physical disciplines. Some
`students practice yoga to transcend the physical body and
`unite with divine powers; others focus on improving strength,
`flexibility, and overall physical fitness.
`
`The history of yoga in the United States reflects its wide-
`ranging appeal. Some of yoga’s first American adherents
`included nineteenth-century transcendentalists, such as Henry
`David Thoreau and Ralph Waldo Emerson, who were
`fascinated by yoga’s approach to achieving enlightenment.
`
`

`
`BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
`
`n the early twentieth century, yoga grew more popular as
`scientists and physicians began to study the physical benefits
`of the practice. These physical benefits caught the attention
`of Hollywood celebrities, including Gloria Swanson, Greta
`Garbo, and Marilyn Monroe, who embraced yoga as a tool to
`fight illness and aging. See Pankaj Mishra, Posing as Fitness,
`N.Y. Times, July 23, 2010.1 By the 1960s, Americans
`increasingly turned to yoga as a “non-religious, decidedly
`unspiritual” form of physical exercise. Sparrowe, supra, at
`50.
`
`4 I
`
`In 1971, Bikram Choudhury, the “self-proclaimed ‘Yogi
`to the stars,’” id. at 56, arrived in Beverly Hills, California.
`He soon became a central figure in the growing popularity of
`yoga in the United States. Born and raised in Calcutta, India,
`Choudhury began studying yoga at age four and learned
`hundreds of traditional Hatha yoga “asanas,” or individual
`poses. Hatha yoga places particular emphasis on the physical
`components of yoga. Choudhury developed a sequence of
`twenty-six asanas and two breathing exercises, arranged in a
`particular order, which he calls the “Sequence.” See Bikram
`Choudhury, Bikram’s Beginning Yoga Class (1979).
`Choudhury opened his own studio, where he began offering
`“Bikram Yoga” classes. In a Bikram Yoga class, the
`Sequence is practiced over the course of ninety minutes, to a
`series of instructions (the “Dialogue”), in a room heated to
`105 degrees Fahrenheit to simulate Choudhury’s native
`Indian climate.
`
`Choudhury popularized the Sequence by marketing the
`many health and fitness benefits it provides. Choudhury
`
` 1 This article may be found at http://www.nytimes.com/2010/07/25/
`books/review/Mishra-t.html.
`
`

`
`BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
`
`5
`
`informs prospective students that his “system of Hatha Yoga
`is capable of helping you avoid, correct, cure, heal, or at least
`alleviate the symptoms of almost any illness or injury.” He
`claims that he developed the Sequence after “many of years
`of research and verification . . . using modern medical
`measurement techniques.” He tells reporters that he extended
`the careers of professional athletes, including Kareem Abdul-
`Jabbar and John McEnroe. This message has resonated with
`an American audience: as the complaint in this action
`explains, “[p]ublic demand for Bikram Yoga classes grew
`steadily once Bikram Yoga participants realized that
`Bikram’s unique yoga style and method offered them
`tremendous physical, mental and other benefits.”
`
`In 1979, Choudhury published the book Bikram’s
`Beginning Yoga Class, which
`includes descriptions,
`photographs, and drawings of the Sequence’s twenty-six
`poses and two breathing exercises. Choudhury registered the
`book with the U.S. Copyright Office in 1979. In 2002, he
`also registered the “compilation of exercises” contained in the
`book, using a supplementary registration form that referenced
`back to the 1979 book.2
`
`In 1994, Choudhury introduced the “Bikram Yoga
`Teacher Training Course.” In 2002 and 2005, respectively,
`Mark Drost and Zefea Samson enrolled in and successfully
`completed the three-month Bikram Yoga Teacher Training
`
` 2 Choudhury has registered several other works with the Copyright
`Office, including Bikram’s Beginning Yoga Class (2d ed.) (2000),
`Bikram’s Beginning Yoga Class (sound cassette) (2002), Bikram’s Yoga
`College of India Beginning Yoga Dialogue (2002), Bikram’s Yoga
`College of India: Yoga Teacher Training Course: Curriculum Outline
`(2002), Yoga for Pregnancy (2002), Bikram’s Advanced Yoga Class
`(2006), and Bikram’s Yoga (2007).
`
`

`
`BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
`
`ourse. In 2009, Drost and Samson founded Evolation Yoga,
`LLC. Evolation Yoga offers several types and styles of yoga,
`including “hot yoga,” which is similar to “Bikram’s Basic
`Yoga System.” Evolation acknowledges that hot yoga
`“includes 26 postures and two breathing exercises and is done
`for 90 minutes, accompanied by a series of oral instructions,
`in a room heated to approximately 105 degrees Fahrenheit.”
`
`6 c
`
`On July 1, 2011, Choudhury and Bikram’s Yoga College
`of India, L.P. (“Choudhury”)3 filed a complaint in the Central
`District of California alleging, inter alia, that defendants
`Evolation Yoga, LLC, Mark Drost, and Zefea Samson
`(“Evolation”) infringed “Bikram’s Copyrighted Works
`through substantial use of Bikram’s Copyrighted Works in
`and as part of Defendants’ offering of yoga classes.” On
`November 12, 2012, Evolation moved for partial summary
`judgment as to Choudhury’s claim of copyright infringement
`of the “Sequence.” The district court granted Evolation’s
`motion, ruling that the “Sequence is a collection of facts and
`ideas” that is not entitled to copyright protection. The parties
`settled all remaining claims against each other, and
`Choudhury timely appealed as to the “Sequence.”
`
`II. Standard of Review
`
`“We review de novo a district court’s grant of partial
`summary judgment, and may affirm on any ground supported
`by the record.” White v. City of Sparks, 500 F.3d 953, 955
`(9th Cir. 2007) (citation omitted). “After ‘viewing the
`
` 3 For the purposes of this appeal, it is not necessary to distinguish
`between Bikram Choudhury, the individual, and Bikram’s Yoga College
`of India, LP. Accordingly, we refer to all Plaintiffs-Appellants as
`Choudhury.
`
`

`
`BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
`
`7
`
`evidence in the light most favorable to the nonmoving party,’
`we determine ‘whether there are any genuine issues of
`material fact and whether the district court correctly applied
`the relevant substantive law.’” Id. (quoting Am. Civil
`Liberties Union of Nev. v. City of Las Vegas, 333 F.3d 1092,
`1097 (9th Cir. 2003)).
`
`III. Discussion
`
`Though Choudhury emphasizes the aesthetic attributes of
`the Sequence’s “graceful flow,” at bottom, the Sequence is an
`idea, process, or system designed to improve health.
`Copyright protects only the expression of this idea—the
`words and pictures used to describe the Sequence—and not
`the idea of the Sequence itself. Because the Sequence is an
`unprotectible idea, it is also ineligible for copyright protection
`as a “compilation” or “choreographic work.” The district
`court properly granted partial summary judgment in favor of
`Evolation because the Sequence is not a proper subject of
`copyright.
`
`A. The Sequence Is an Unprotectible Idea.
`
`Section 102(a) of the Copyright Act of 1976 sets forth the
`proper subjects of copyright protection. 17 U.S.C. § 102(a).
`Section 102(b) expressly excludes protection for “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.”
`Id. § 102(b). Section 102(b) codifies the “idea/expression
`dichotomy,” under which “every idea, theory, and fact in a
`copyrighted work becomes instantly available for public
`exploitation at the moment of publication.” Golan v. Holder,
`132 S. Ct. 873, 890 (2012) (quoting Eldred v. Ashcroft,
`
`

`
`BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
`
`8 5
`
`37 U.S. 186, 219 (2003)); see also Frybarger v. Int’l Bus.
`Machs. Corp., 812 F.2d 525, 529 (9th Cir. 1987) (explaining
`that Section 102(b) “expressly codified” this principle); H.R.
`Rep. No. 94–1476, at 57 (1976) (explaining that the “purpose
`[of Section 102(b)] is to restate . . . that the basic dichotomy
`between expression and idea remains unchanged”).
`
`The idea/expression dichotomy has two constitutional
`foundations: the Copyright Clause and the First Amendment.
`Under the Copyright Clause, “[t]he primary objective of
`copyright is not to reward the labor of authors, but ‘[t]o
`promote the Progress of Science and useful Arts.’” Feist
`Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349
`(1991) (quoting U.S. Const. art. I, § 8, cl. 8). Thus, “[t]he
`‘constitutional command’ . . . is that Congress, to the extent
`it enacts copyright laws at all, create a ‘system’ that
`‘promote[s] the Progress of Science.’” Eldred, 537 U.S. at
`212 (quoting Graham v. John Deere Co. of Kansas City,
`383 U.S. 1, 6 (1966)). “To this end, copyright assures authors
`the right to their original expression, but encourages others to
`build freely upon the ideas and information conveyed by a
`work.” Feist, 499 U.S. at 349–50. At the same time, the
`idea/expression dichotomy “strike[s] a definitional balance
`between the First Amendment and the Copyright Act by
`permitting free communication of facts while still protecting
`an author’s expression.” Harper & Row Publishers v. Nation
`Enters., 471 U.S. 539, 556 (1985); see also Eldred, 537 U.S.
`at 219 (describing the idea/expression dichotomy as a “built-
`in First Amendment accommodation[]”); L.A. News Serv. v.
`Tullo, 973 F.2d 791, 795 (9th Cir. 1992) (“Copyright law
`incorporates First Amendment goals by ensuring that
`copyright protection extends only to the forms in which ideas
`and information are expressed and not to the ideas and
`information themselves.”); 5 Melville B. Nimmer & David
`
`

`
`BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
`
`9
`
`Nimmer, Nimmer on Copyright § 19E.04[B] (2015) (“[F]ree
`access to ideas is vital not only for copyright law but also for
`the maintenance of the democratic dialogue . . . .”).
`
`In Baker v. Selden, 101 U.S. 99 (1879), the Supreme
`Court addressed the protection copyright law provided to a
`book, a classic subject of copyright protection, explaining a
`system of book-keeping. Id. at 99–100. The Court held that
`the book’s expression of the book-keeping system was
`protected, but the system of book-keeping itself was not
`entitled to copyright protection. Id. at 102. The Court
`explained:
`
`The description of the art in a book, though
`entitled to the benefit of copyright, lays no
`foundation for an exclusive claim to the art
`itself. The object of the one is explanation;
`the object of the other is use. The former may
`be secured by copyright. The latter can only
`be secured, if it can be secured at all, by
`letters-patent.
`
`Id. at 105.
`
`Following Baker, and recognizing this vital distinction
`between ideas and expression, courts have routinely held that
`the copyright for a work describing how to perform a process
`does not extend to the process itself. In Palmer v. Braun,
`287 F.3d 1325 (11th Cir. 2002), for example, the Eleventh
`Circuit held that meditation exercises described in a
`copyrighted manual on exploring the consciousness were “a
`process” unentitled to copyright protection. Id. at 1334. The
`court explained that the “exercises, while undoubtedly the
`product of much time and effort, are, at bottom, simply a
`
`

`
`10
`
`BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
`
`process for achieving increased consciousness. Such
`processes, even
`if original, cannot be protected by
`copyright.”4 Id. Similarly, in Publications International, Ltd.
`v. Meredith Corp., 88 F.3d 473 (7th Cir. 1996), the Seventh
`Circuit held that recipes contained in a copyrighted cookbook
`are not entitled to copyright protection, for they merely
`“describe a procedure by which the reader may produce many
`dishes,” and “there can be no monopoly in the copyright
`sense in the ideas for producing certain foodstuffs.” Id. at
`481. Finally, in Seltzer v. Sunbrock, 22 F. Supp. 621 (S.D.
`Cal. 1938), which predates the Copyright Act of 1976 but
`applies Baker, the court held that the copyright in a manual
`describing how to organize roller-skating races does not
`extend to the rules for the races themselves. Id. at 630. The
`court explained, “[w]hat [the author] really composed was a
`description of a system for conducting races on roller skates.
`A system, as such, can never be copyrighted. If it finds any
`protection, it must come from the patent laws.” Id. (citing
`Baker, 101 U.S. 99).
`
`Here, we must similarly determine not the validity of a
`copyright but rather its scope.5 Does Choudhury’s copyright
`
` 4 Cf. Arica Institute, Inc. v. Palmer, 970 F.2d 1067, 1075 (2d Cir. 1992)
`(holding that the owner of copyrights in training materials describing
`ancient Sufi methods to “better understand oneself and one’s interactions
`with others” was judicially estopped from claiming copyright protection
`for the program techniques, in light of representations in commercial
`publications that the techniques were “based upon . . . proven scientific
`knowledge” and “provable in the laboratory and clinically”).
`
` 5 As noted above, Choudhury obtained a copyright for a “compilation of
`exercises” through his 2002 supplementary registration to Bikram’s
`Beginning Yoga Class, which was first published in 1979. Choudhury
`claims that the 2002 supplementary registration relates back to the 1979
`registration. In Choudhury’s view, the supplementary registration thus
`
`

`
`BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
`
`11
`
`protection for his 1979 book extend to the Sequence itself?
`Under the fundamental tenets of copyright law and consistent
`with the precedents discussed above, the answer is no.
`
`As Choudhury describes it, the Sequence is a “system” or
`a “method” designed to “systematically work every part of
`the body, to give all internal organs, all the veins, all the
`ligaments, and all the muscles everything they need to
`maintain optimum health and maximum function.” In
`Bikram’s Beginning Yoga Class, Choudhury explains that he
`“arrived at the sequence of postures” after “[researching] the
`diseases and the postures and after many years of research
`and verification . . . using modern medical measurement
`techniques.”
` The book tells readers that “Bikram’s
`twenty-six exercises systematically move fresh, oxygenated
`blood to one hundred percent of your body, to each organ and
`fiber, restoring all systems to healthy working order, just as
`Nature intended. ” Bonnie Jones Reynolds, Introduction to
`Bikram’s Beginning Yoga Class, at xi (1979). This text
`promises readers that Choudhury’s “system of Hatha Yoga is
`capable of helping you avoid, correct, cure, heal, or at least
`alleviate the symptoms of almost any illness or injury.”
`
`Also illuminating is Choudhury’s spoken Dialogue, which
`accompanies the Sequence. Before the Sequence’s first
`breathing exercise, for example, the instructor tells students,
`“[The exercise] is good for the lungs and respiratory system.
`
`issued within five years of first publication and therefore serves as “prima
`facie evidence of the validity of the copyright.” 17 U.S.C. § 410(c). Here,
`however, we need not decide whether Choudhury’s supplementary
`registration is prima facie evidence of the validity of the copyright, for
`even if it were, the undisputed facts are sufficient to overcome any
`presumption of validity.
`
`

`
`12
`
`BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
`
`This exercise expands your lungs to their maximum
`expansion capacity. And it improves the elasticity of your
`lungs.” Before the twelfth pose, the instructor explains:
`
`Every exercise in the world you do, you burn
`energy/calories like driving a car burns gas.
`The tank is empty, you need to fill it up again.
`Hatha Yoga class is a gas station, it is the only
`place in the world where you gain energy
`instead of burning energy. Asana is the only
`natural physical activity in the world because
`it is scientific [and] with the help of science,
`we can explain nature.
`
`An essential element of this “system” is the order in
`which the yoga poses and breathing exercises are arranged.
`Bikram’s Beginning Yoga Class instructs readers, “Do the
`poses in the strict order given in this book. Nothing about
`Bikram’s Beginning Yoga Class is haphazard. It is designed
`to scientifically warm and stretch muscles, ligaments, and
`tendons in the order in which they should be stretched.”
`Bikram’s Beginning Yoga Class, supra, at xi. For instance,
`Choudhury explains, “Camel Pose (Ustrasana) stretches the
`abdomen and compresses the spine; so for the next posture,
`I chose the Rabbit Pose (Sasangasana), which does the
`converse: stretches the back and compresses the abdomen.”6
`One Yoga Journal article explains that “[a]ccording to
`
` 6 A recent research study published in the Journal of Strength and
`Conditioning Research further explains the clinical effects of the
`Sequence’s composition: “The combination of rapid transition between
`postures and environmental heat stress produces a substantial
`cardiovascular response and muscle fatigue.” Brian L. Tracy & Cady E.F.
`Hart, Bikram Yoga Training and Physical Fitness in Healthy Young
`Adults, 27 J. Strength & Conditioning Res. 822, 823 (2013).
`
`

`
`BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
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`13
`
`Bikram, each posture in his series forms the perfect basis for
`the next, warming and stretching the appropriate muscles,
`ligaments and tendons.” Loraine Despres, Yoga’s Bad Boy:
`Bikram Choudhury, Yoga J., Aug. 28, 2007.7
`
`Choudhury thus attempts to secure copyright protection
`for a healing art: a system designed to yield physical benefits
`and a sense of well-being. Simply put, this attempt is
`precluded by copyright’s idea/expression dichotomy, codified
`by Section 102(b). As the Supreme Court explained in Baker,
`“Certain mixtures are found to be of great value in the healing
`art. If the discoverer writes and publishes a book on the
`subject (as regular physicians generally do), he gains no
`exclusive right to the manufacture and sale of the medicine;
`he gives that to the public.” 101 U.S. at 102–03. Thus, for
`example, the copyright for a book describing how to perform
`a complicated surgery does not give the holder the exclusive
`right to perform the surgery. Like the series of movements a
`surgeon makes, the Sequence is, as Choudhury tells readers,
`a method designed to “cure, heal, or at least alleviate”
`physical injuries and illness. Monopoly protection for such
`a method “can only be secured, if it can be secured at all, by
`letters-patent.” Id. at 105; see also Sega Enters. Ltd. v.
`Accolade, Inc., 977 F.2d 1510, 1526 (9th Cir. 1992), as
`amended (Jan. 6, 1993) (“In order to enjoy a lawful monopoly
`over the idea or functional principle underlying a work, the
`creator of the work must satisfy the more stringent standards
`imposed by the patent laws.”). In light of Baker and its
`progeny, Choudhury’s healing methodology is not eligible for
`protection by copyright. Indeed, if it is entitled to protection
`
` 7 This article may be located at http://www.yogajournal.com/
`article/lifestyle/yoga-s-bad-boy-bikram-choudhury/.
`
`

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`14
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`BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
`
`at all, that protection is more properly sought through the
`patent process.8
`
`the Sequence may produce spiritual and
`That
`psychological benefits makes it no less an idea, system, or
`process and no more amenable to copyright protection.
`Choudhury’s personal declaration explains that the Sequence
`offers “spiritual benefits” to his students and “lead[s] to a
`general sense of peace and well-being that is undoubtedly of
`benefit to all of us.” Like the meditation exercises designed
`to achieve greater consciousness in Braun, 287 F.3d at 1334,
`the Sequence sets forth a method to attain identifiable, if
`spiritual and psychological, results: a “sense of well-being”
`and “boundless energy.” Bikram’s Beginning Yoga Class,
`supra, at xi.9 As such, it falls within the Copyright Act’s
`definition of an idea, process, or system excluded from
`copyright protection. See 17 U.S.C. § 102(b).
`
`Choudhury contends that the Sequence’s arrangement of
`postures is “particularly beautiful and graceful.” But beauty
`is not a basis for copyright protection. The performance of
`many ideas, systems, or processes may be beautiful: a
`surgeon’s intricate movements, a book-keeper’s careful
`notations, or a baker’s kneading might each possess a certain
`grace for at least some viewers. Indeed, from Vermeer’s
`
` 8 We do not opine on whether the Sequence is, in fact, patentable.
`
` 9 Choudhury’s website features research, including a report presented at
`the Anxiety and Depression Association of America Conference, which
`concludes that Bikram Yoga may reduce stress, anxiety, and depression
`among women at risk for mental health problems. See Fran Lowry, Hot
`Yoga Cools Anxiety, Relieves Depression, Medscape (Apr. 13, 2015),
`reproduced at Research, Bikram Yoga, http://www.bikramyoga.com/
`BikramYoga/Research.php (last visited Sept. 16, 2015).
`
`

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`BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
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`15
`
`milkmaid to Lewis Hine’s power house mechanic, the
`individual engrossed in a process has long attracted artistic
`attention. But the beauty of the process does not permit one
`who describes it to gain, through copyright, the monopolistic
`power to exclude all others from practicing it. This is true
`even where, as here, the process was conceived with at least
`some aesthetic considerations in mind. Just as some steps in
`a recipe may reflect no more than the author’s belief that a
`particular ingredient is beautiful or that a particular cooking
`technique is impressive to watch and empowering to practice,
`some elements in Choudhury’s Sequence may reflect his
`aesthetic preferences. Yet just like the recipe, the Sequence
`remains unprotectible as a process the design of which
`primarily reflects function, not expression.
`
`In drawing the “difficult” line between idea and
`expression in this case, we are mindful of the “guiding
`consideration” of the idea/expression dichotomy: “the
`preservation of the balance between competition and
`protection reflected in the patent and copyright laws.” CDN
`Inc. v. Kapes, 197 F.3d 1256, 1262 (9th Cir. 1999) (quoting
`Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738,
`742 (9th Cir. 1971)). As in Baker, the “object” of the book
`Bikram’s Beginning Yoga Class is “explanation”: it tells
`readers how to perform the Sequence and encourages them to
`try it. Baker, 101 U.S. at 105. The introduction to Bikram’s
`Beginning Yoga Class, for example, urges the audience to:
`(i) “turn to the Contents page,” (ii) “read through the book,”
`(iii) “build gradually,” and (iv) “do the poses in the strict
`order given in this book.” Bikram’s Beginning Yoga Class,
`supra, at ix–xi. Like a book explaining “Book-keeping
`Simplified,” 101 U.S. at 100, Bikram’s Beginning Yoga Class
`sets out to “communicate to the world the useful knowledge
`which it contains.” Id. at 103. It invites readers to practice
`
`

`
`16
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`BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
`
`the method it describes. “But this object would be frustrated
`if the knowledge could not be used without incurring the guilt
`of piracy of the book.” Id. Consumers would have little
`reason to buy Choudhury’s book if Choudhury held a
`monopoly on the practice of the very activity he sought to
`popularize. Rather than “stimulat[ing] artistic creativity for
`the general public good,” copyright protection for the
`Sequence would prevent the public from engaging with
`Choudhury’s idea and building upon it. Mattel, Inc. v. MGA
`Entm’t, Inc., 705 F.3d 1108, 1111 (9th Cir. 2013) (quoting
`Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156
`(1975)).
`
`B. The Sequence Is Not a Copyrightable Compilation.
`
`Choudhury contends that the Sequence is entitled to
`copyright protection as a “compilation.” Specifically,
`Choudhury claims that the Sequence qualifies for copyright
`protection because his “selection, coordination, and
`arrangement” of twenty-six poses and two breathing exercises
`create a coherent and expressive composition. The district
`court correctly rejected this argument.
`
`The Copyright Act identifies compilations as a proper
`subject of copyright. Section 103 of the Copyright Act
`provides that “[t]he subject matter of copyright as specified
`in section 102 includes compilations.” 17 U.S.C. § 103(a).
`A “compilation” is “a work formed by the collection and
`assembling of preexisting materials or of data that are
`selected, coordinated, or arranged in such a way that the
`resulting work as a whole constitutes an original work of
`authorship.” Id. § 101. It essential to recognize, however,
`that Section 103 complements Section 102. Thus, while a
`compilation may be eligible for copyright protection, it must
`
`

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`BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
`
`17
`
`nevertheless satisfy the requirements of Section 102. A
`compilation must, in other words, represent an “original
`work[] of authorship,” and “[i]n no case” may copyright
`protection “extend to any idea, procedure, process, [or]
`system.” Id. § 102. The availability of copyright protection
`for compilations, therefore, does not eliminate Section 102’s
`categorical bar on copyright protection for ideas.
`
`The Supreme Court addressed the relationship between
`these “two well-established propositions”¯that compilations
`are eligible for copyright but facts and ideas are not¯in
`Feist, 499 U.S. 340. In Feist, the Court considered whether
`the collection of names, towns, and telephone numbers in a
`telephone directory is eligible for copyright protection as a
`compilation. The Court held that “[a] factual compilation is
`eligible for copyright if it features an original selection or
`arrangement of facts, but the copyright is limited to the
`particular selection or arrangement. In no event may
`copyright extend to the facts themselves.” Id. at 350–51.
`
`By claiming copyright protection for the Sequence as a
`compilation, Choudhury misconstrues the scope of copyright
`protection for compilations. As we have explained, the
`Sequence is an idea, process, or system; therefore, it is not
`eligible for copyright protection. That the Sequence may
`possess many constituent parts does not transform it into a
`proper subject of copyright protection. Virtually any process
`or system could be dissected in a similar fashion. Baker’s
`examples of “how-to” treatises are instructive: “A treatise on
`. . . the construction and use of ploughs, or watches, or
`churns[,] . . . or on the mode of drawing lines to produce the
`effect of perspective” would likely list the steps necessary to
`perform the process it describes. 101 U.S. at 102. The
`watchmaking treatise’s author could not claim a copyright in
`
`

`
`18
`
`BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
`
`the process of making a watch, however, by breaking down
`the process
`into multiple steps and
`labeling
`it a
`“compilation.” Recipes further illustrate the point: a cake
`recipe could be viewed as a “compilation” of carefully
`arranged and selected steps¯which may, of course, reflect
`the personal preferences and tastes of the recipe’s author¯yet
`the recipe would remain, in most instances, a process that is
`not eligible for copyright protection. See Meredith, 88 F.3d
`at 480–81. Likewise, Choudhury cannot obtain copyright
`protection for the Sequence as a compilation by separately
`identifying the poses and breathing exercises it contains.
`
`Moreover, according to Choudhury himself, the medical
`and functional considerations at the heart of the Sequence
`compel the very selection and arrangement of poses and
`breathing exercises for which he claims copyright protection.
`According to Bikram’s Beginning Yoga Class, the “strict
`order” of the poses “is designed to scientifically warm and
`stretch muscles, ligaments, and tendons in the order in which
`they should be stretched.” Bikram’s Beginning Yoga Class,
`supra, at xi. Read in the light most favorable to Choudhury,
`the record demonstrates that the overarching reason for the
`organization of the poses and breathing exercises in the
`Sequence is to further the basic goals of the method: to attain
`“[p]roper weight, muscle
`tone, glowing complexion,
`boundless energy, vibrant good health, and a sense of
`well-being.” Id. The Sequence’s composition renders it
`more effective as a process or system, but not any more
`suitable for copyright protection as an original work of
`authorship.
`
`It makes no difference that similar results could be
`achieved through a different organization of yoga poses and
`breathing exercises. Choudhury argues that he could have
`
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`BIKRAM’S YOGA COLLEGE V. EVOLATION YOGA
`
`19
`
`chosen from “hundreds of postures” and “countless
`arrangements of these postures” in developing the Sequence.
`But the possibility of attaining a particular end through
`multiple different methods does not
`render
`the
`uncopyrightable a proper subject of copyright. See BellSouth
`Advert. & Publ’g Corp. v. Donnelley Info. Publ’g, Inc.,
`999 F.2d 1436, 1443 (11th Cir. 1993) (“The relevant inquiry
`[under Feist] is not whether there is some imaginable,
`although manifestly less useful, method of arranging business
`telephone listings.”); see also ATC Distrib. Grp., Inc. v.
`Whatever It Takes Transmissions & Parts, Inc., 402 F.3d 700,
`711–12 (6th Cir. 2005) (“To be sure, [the publisher of a
`catalog describing a transmission parts numbering system]
`could have arranged the parts information in other ways that
`were potentially less clear or useful, but this fact alone is
`insufficient to demonstrate the creativity necessary for
`copyright protection.”). Though it may be one of many
`possible yoga sequences capable of attaining similar results,
`the Sequence is nevertheless a process and is therefore
`ineligible for copyright protection.10
`
` 10 Choudhury argues that the district court granted undue deference to
`a recent Copyright Office Policy Statement concerning copyright
`protection for yoga sequences as compilations. See Registration of Claims
`to Copyright