The law on the books vs. the law on the street — the case of Bikram yoga

Bikram Choudhury is the founder of something known as “hot yoga”, which is an arrangement of yoga poses that have been known for thousands of years and performed in a very hot room. We’ve posted on Bikram before. Hot yoga has made him a very rich man. And copyright law has helped keep him that way.

Copyright law? Yup. Bikram claims a copyright in his particular sequence of yoga poses. If that seems strange to you, you’re right. Bikram’s copyright claim is complete bunk. The U.S. Copyright Office has ruled that Bikram’s routine is uncopyrightable — the poses of which it’s composed have been in the public domain forever, and the sequence is uncopyrightable exercise, not copyrightable dance. But Bikram keeps suing people. And because he has a lot of money and at least as much chutzpah, he keeps winning. Not because he wins his legal claims. But because he bombards his opponents with lawyers, and he makes them spend a ton of money to defend themselves. Eventually, they give up. It’s just not worth it to fight.

The latest Bikram target to wave the white flag is Greg Gumucio, the owner of rival hot yoga studio “Yoga to the People”. Gumucio was offering a product a lot like Bikram’s, a lot cheaper. But now Gumucio says he will change his offering.

Which points out a problem, one which isn’t limited to copyright law, but is often illustrated by it. The law on the books is one thing. The law out on the street is another. Wealthy people often can use the law to extract what they want, even when the law doesn’t properly give it to them. Bikram doesn’t have a valid copyright in the Bikram sequence. But he might as well. Until he comes up against an opponent with equally deep pockets, the law means nothing.

United Airlines uses IP law in bid to squelch “” complaint site

News today that United Airlines has filed a lawsuit pressing copyright and trademark claims against “”, a United Airlines complaint site run by a Canadian engineering professor named Jeremy Cooperstock. Reports suggest that United got annoyed when Cooperstock re-designed the 15-year-old site to more closely resemble United’s own website (see screen shot, above), using colors and logos that look a lot like United’s. Cooperstock admits that his site looks similar to United’s, but he says that’s necessary because it is a parody and so must reference the real thing. Additionally, Cooperstock insists that nobody would think his gripe site is the real United Airlines site — especially after he recently included a pop-up window asking visitors to acknowledge that they get that it’s not the real airline’s site.

If Cooperstock’s site is indeed a parody of United’s, then he has wide latitude under both copyright and trademark and liability is unlikely. But it’s impossible to tell definitively because Coopersmith’s internet hosting provider has taken down, apparently in response to a request from United. This despite United’s claims that is has no intent to have Cooperstock’s complaint site taken down.


UPDATE: Prof. Cooperstock writes to say that is back up. (We checked – it is.) The site is a hoot and worth a visit.

Is this copyright infringement?

The painting on the left is by a Chinese-born artist named Zheng Li.  It’s called “Piano No. 9″. Li is not exactly an art-world fixture. For years, he lived in the U.S. and ran an art gallery in Roswell, GA. He has sold art to private individuals and corporations. But as far as we can tell, he hasn’t broken through to broader public notice.

That may change now. The painting on the right, titled “Piano Coloratura” and signed by someone named “P. Robert”, has been on sale in major outlets such as Kohl’s, J.C. Penney, and Z Gallerie. Li has sued all of these retailers, plus over 20 more who have sold “Piano Coloratura”, claiming that they are infringing his copyright in “Piano No. 9″.

Does Li have a case?  Well, the paintings are certainly very similar, and that alone may get Li quite far with a jury. But if we look closer, it’s actually a really close case, and the correct outcome is difficult to call.  Why?

Given how similar the paintings are it’s hard to believe that Li’s painting wasn’t copied. But if you break the paintings down, you’ll find that a lot of the copying at issue here isn’t actually illegal. For example, both paintings show a baby grand piano. But Li cannot own copyright in all pictures of baby grand pianos. And indeed, the baby grand in “Piano Coloratura” looks a bit different from Li’s piano. It’s shaped just a bit differently — and these small differences matter because all baby grand pianos look much alike, at least in their overall shape. Similarly, the “Piano Coloratura” piano is rendered at a similar angle to Li’s piano, but again, Li doesn’t have copyright in rendering pianos from the side. The pianos are also painted in a similar style using patches of bright color. But again, the execution of the style is not the same — the borders between colors are less distinct in Li’s painting — and, more broadly, copyright should not give any one artist ownership of a particular style of painting. Does impressionism belong to the first impressionist?  Cubism to the first cubist?  The same goes for colors. Copyright doesn’t allow anyone to own a color (trademark does, in a more limited sense that is not relevant here . . .).

So, is there a copyright claim? Yes. Li has a copyright claim in his original selection and arrangement of these otherwise uncopyrightable elements of subject matter, style, and color. In other words, Li has a copyright in the particular sum of the uncopyrightable parts.

The real question is how broad, or “thick”, a “selection and arrangement” copyright like this should be. Clearly, Li should have a copyright claim against anyone who reproduces his painting exactly — if the selection and arrangement copyright means anything, it must prohibit precise replication of Li’s painting, as would happen if someone simply pirated it and printed up a thousand copies. But how far should Li’s “selection and arrangement” copyright go in prohibiting mere “look-alike” paintings? That’s a very deep question, and one which is unsettled in the copyright law.

“Piano Coloratura” is not an exact copy. But it is pretty damn close. This is a borderline case. We’ll be watching.

And now Apple wins a round . . .

. . . this time in the United States International Trade Commission.  An administrative law judge at the ITC has ruled that Samsung has infringed four Apple patents, including one of Apple’s “rectangle” iPhone design patents, and utility patents including pinch-to-zoom.  The ruling, if upheld by the full ITC, could result in a ban on the importation into the U.S. of a number of Samsung’s products.  We’ll see what happens next . . .

Apple loses a round in its patent war with Samsung

News that a Dutch court has ruled that Samsung has not infringed Apple’s patent on smartphone “pinch-to-zoom” — i.e., the function of zooming on a smartphone screen using a two-finger gesture.  Apple’s billion-dollar patent victory in U.S. federal court in California is surely the big event thus far, but outside the U.S. Apple has been on a bit of a smartphone patent losing streak, with judgments coming down against it in courts in the U.K., Japan, Germany, and now the Netherlands. This is going to be a long war, but so far the result is unclear — both sides have won some important battles.

Can Emeco prevent Restoration Hardware from knocking off the “Navy Chair”?

The Emeco 1006 chair, also called the “Navy Chair”, is an aluminum chair produced by the Electric Machine and Equipment Company (Emeco) in Hanover, Pennsylvania. The chair, pictured at left, was commissioned in the 1940s by the United States Navy in World War II for use on warships: the contract specified that it had to be able to withstand torpedo blasts to the side of a destroyer.

After the war, Emeco began selling its Navy Chair to the public.  The chair never sold particularly well, but over the years Emeco’s chair carved out a small niche as a piece of high-end (that is, expensive) design of the sort you’ll see featured in Dwell magazine.

Until Restoration Hardware got into the act. Recently the big furniture retailer began selling a Navy look-alike chair (pictured at left), which it (now) refers to as the “standard aluminum side chair”. (It previously referred to it as the “Naval Chair”). The Emeco original is $455.00. The Restoration knockoff is $129. At that price — and given Restoration Hardware’s ubiquity and marketing muscle — the Navy Chair is poised to go mainstream.

Which Emeco is not going to take sitting down.  The company has now filed suit, accusing Restoration Hardware of trademark infringement and counterfeiting. Does the suit have any merit?

Probably not. Emeco probably cannot claim a trademark in the term “Navy Chair”, because that is likely a generic description of this type of all-metal, 1940s-style chair, rather than a name that serves as any indicator of a particular source of the chair in question. (And in any event Restoration Hardware isn’t using the name anymore . . .)

Emeco’s claim for trademark rights in the chair’s design probably fails for similar reasons. The Supreme Court has made clear that firms can claim trademark rights (referred to as “trade dress”) in the design of products only if that design is recognized by consumers as a signal of the product’s source.  So, for example, the sinuous design of a Coca-Cola bottle is protected because people widely recognize a bottle of that shape as signaling “Coke”. Is the design of Emeco’s Navy Chair sufficiently familiar that it indicates source to a substantial number of consumers?  Unlikely.

We’ll see how the case turns out, but it will suffice for now to note that in the world of furniture — as in fashion, food, financial innovations, and the many other industries we cover in The Knockoff Economy — there are a lot of knockoffs, and a lot of them are perfectly legal.  Does the freedom to knock off designs mean that creativity grinds to a halt? Not that we can see.

The Knockoff Economy in Wired

We have a piece in Wired looking at court fights over smartphones (Apple/Samsung) and stilettos (Louboutin/Yves Saint Laurent). You might think these spats have nothing in common. But in fact, both are about a critical frontier in copying and competition: using design to gain control over function – and thereby gain control over markets. (Photo credit: Ariel Zambelich/Wired).

Federal appeals court in NYC says Yves Saint Laurent free to sell red shoes

A federal appeals court in NY has handed down its ruling in the long-running litigation pitting red-soled women’s footwear impresario Christian Louboutin against fashion titan Yves Saint Laurent. Louboutin had sued Saint Laurent, claiming that the YSL’s all-red women’s pumps (see pic at top left) infringed Louboutin’s trademark in women’s shoes bearing red outsoles. The NY court upheld a district court ruling in favor of YSL, albeit on narrower grounds. The court held that although Louboutin’s red sole is distinctive, and functions as a trademark, YSL had not violated it. Why? Because Louboutin’s red sole only functions as a mark on shoes with uppers of a contrasting color (because it’s only against a contrasting upper that you recognize the red sole as a mark), and YSL’s shoes (picture at left) were all red. YSL’s all-red shoe, in the court’s view, did not “use” Louboutin’s mark.  Judgment for YSL.

This seems right. But the NY court left unresolved what will happen if Louboutin sues another company making contrasting-color shoes with red soles.  On the one hand, the court holds that Louboutin’s red soles function as a mark. But that does not settle the issue. The court left open the possibility that the red soles might be “aesthetically functional”.  If they are, they cannot be protected even if consumers do believe that red-soled shoes come from Louboutin. We shall see . . .

ADDENDUM: For a more detailed breakdown of the opinion, see Rebecca Tushnet’s excellent post.

The Knockoff Economy in Forbes

Kal does a Q&A for Forbes re: Apple/Samsung and how imitation can be good for innovation. Check out the Forbes cover at left — it’s from 2007, when Nokia was the king of the cellphone marketplace. Now the Finnish company is down to a single-digit market share in smartphones, although they are still a major player in the market for lower-end cellphones (dumbphones?).  That Forbes cover shows that how fierce competition can be in technology markets, and how innovation can change the game in an instant. In any event, here’s Kal on the central irony of the Apple/Samsung fight — while Apple condemns Samsung as a copycat, Apple itself has a long and proud history of innovation through imitation:

What’s most interesting about the verdict is that Apple itself is a serial imitator—as many great innovators are. Steve Jobs famously visited the Xeros Palo Alto Research Center in 1979, where he saw a Xerox prototype that used a mouse and a graphical user interface. Jobs adapted the ideas he saw at Xerox in what eventually became the Macintosh. And the rest is history.

In the current dispute, Samsung was surely imitating aspects of Apple’s designs. But so too was Apple imitating previous designs. The rectangular shape of the iPhone and iPad, for instance, strongly resemble the ur-reading device of paper. And there were many iterations between the invention of paper and the invention of the rectangular phone.

So while Samsung probably deserves some of the sweeping verdict, what Samsung did is really normal practice in many fields, including electronics. And it is a good thing, because it yields more competition.