he Copyright Office issued a statement of policy (37 CFR Part 201), effective June 22, 2012, to clarify the practices relating to the claims in compilations, and in particular claims involving the selection of uncopyrightable subject matter. The definition of a “compilation” in Section 101 of the Copyright Act 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.
While the statement focused on exercise and social dance routines, it extends to all compilations that are based on the selection and arrangement of uncopyrightable subject matter. If the compilation does not result in a work of authorship that falls within the eight categories of authorship listed in Section 102(a) of the Copyright Act, the Copyright Office will refuse registration. These categories are identified as literary works; musical works; dramatic works; pantomime and choreography; pictorial, graphic and sculptural works; motion picture and audiovisual works; sound recordings and architectural works.
In the statement of policy, the Copyright Office looks to Section 103(a), which describes the compilation authorship and the copyrightability of the underlying material, and its relationship to Section 102(a), the enumerated categories of copyrightable works. The Copyright Office specified that a compilation, under Section 103(a), is not its own standalone category of authorship. Rather, the subject matter making up the compilation must be one of the enumerated categories under Section 102(a). The Copyright Office also noted that Section 103(b) provides that a copyright in a compilation only extends to the material contributed by the author and not pre-existing material.
Since exercise, yoga movements and social dance steps are not among the enumerated categories of works protected by copyright, the selection and arrangement of yoga asanas, a simple combination of dance steps, or a selection and arrangements of exercises, will be denied registration by the Copyright Office. These categories are not copyrightable because they are “functional physical movements…[and] do not represent the type of authorship intended to be protected under copyright law as a choreographic work.” The Copyright Office differentiates choreographic works from functional movements by describing choreography as an “integrated and coherent compositional whole totally separate from functionality.”
In addition, the Copyright Office examined Section 102(b) of the Copyright Act, which precludes compilations in ideas, procedures, processes, system, method of operation, concept, principle of study, regardless of the form. Under this provision, a selection of public domain yoga poses would be precluded from registration as a process or a system as they are to result in the improvement of someone’s health.
This statement by the Copyright Office specifically addresses the case of Open Source Yoga Unity v. Choudhury, 2005 WL 756558, 74 U.S.P.Q. 2d 1434 (N.D. Cal. 2005), in which the plaintiff attempted to register a selection of yoga asanas. The District Court mistakenly concluded that “there were triable issues of fact whether a sufficient number of individual yoga asanas were arranged in a sufficiently creative manner to warrant copyright.” While it might appear at first blush that any organization, selection, or arrangement of preexisting material would constitute copyrightable material, this interpretation ignores Fiest Publications Inc. v. Rural Tel. Serv. Co. 499 U.S. 340 (1991), in which the Supreme Court stated that not all selections, coordinations or arrangements qualify as works of authorship under the statutory definition of a compilation. Although legislative history does suggest that Congress intended Section 102(a) to be flexible, the flexibility is limited to the scope of the category of works delineated in Section 102(a).
The approach taken by the Copyright Office is consistent with recent court decisions such as Kim Seng Co. v. J & A Importers, Inc., 810 F. Supp. 2d 1046 (C.D. Cal. 2011). That case involved two Chinese-Vietnam food importers who had similar bowls for food packaging. Kim Seng Co. sued for copyright infringement claiming, among other things, that the bowl was a three dimensional sculptural work. However, the court determined that the arrangement was “too mechanical and routine to create a copyrightable compilation work of unprotectible elements. The elements, the food items, are not protectable as original works of authorship, because they cannot be separated from their utilitarian function — to be eaten.”
This policy statement has now clarified the Copyright Office’s approach to compilation authorship in terms of dance and exercise routines and any other selection, coordination, and arrangement of functional movements.