Someone Copied My Workforce Diversity Model!

Dear Rich: I am the author of several management books about workforce diversity. In two of these, I used an original model to define what I meant  by "dimensions of diversity." Over the past 20 years, my model has become very popular in training programs held at universities, in companies and by public organizations. I recently discovered that an unknown competitor is featuring my model (a derivative, slightly altered version) on her business website and is misrepresenting my original work in her criticisms of it. I would like to deny her the right to reproduce the model - as she seems to me to be attempting to benefit at my expense. She did not ask for permission and I would like to forcefully deny her that now. Do I have any rights here? You can assert your rights but we can't guarantee you'll succeed. Your competitor could argue that your model -- which appears to be a circle within a circle, each circle containing 10 diversity factors -- may be closer to an idea, and copyright doesn't protect ideas, only their expression.
E=MC2 does not equal copyright. We know it took some creative effort to visualize and compile your model but copyright does not protect works because of the labor invested -- referred to as "sweat of the brow" -- or because they contain ground-breaking ideas, methods, or systems. What's required is sufficient textual or visual expression to justify protection. That's not to say, you can't protect your model. Many companies claim copyright in workplace posters and related graphics. But in those cases, the owner be acquiring what is known as a "thin copyright" -- one that would only stop exact or close duplications. In other words, the more modifications that are made to your model, the less likely it may infringe.
So, what should you do? We'd suggest seeking copyright registration for your model. Having a registration doesn't guarantee you'll succeed against infringers but it creates a presumption you have a valid copyright and often, that's all that's needed to stop interlopers. Enclose a copy of the registration and demand the removal of the material. If it's at a website, you may also be able to take advantage of the DMCA takedown rules (scroll down for a how-to). Your competitor may have a few defenses available -- for example, you mention that the competitor is criticizing your model; criticism is a common basis for fair use.

Can Yoga Moves Be Copyrighted?

Dear Rich: I've been following the Bikram Yoga stories and it's still not clear to me. Can I practice Bikram Yoga techniques at my studio or will I get sued by the Bikram people? The jury is still out on the case you're discussing in which Bikram founder Bikram Choudhury sued a former Bikram practitioner who started a competing "hot yoga" school (Yoga To The People or "YTTP") for copyright and trademark infringement. We thought we answered a similar question a while back but we couldn't dig it up so we assume it was written in a parallel universe.
The copyright case(s).  Bikram and his competitors have been in and of courtrooms over the past ten years. One group of yoga practitioners sought relief after Bikram sent out a bunch of cease and desist letters in approximately 2002 and 2003. That battle ended in a settlement in 2005 but not before a court weighed in on a few important issues. The court determined that: individual yoga moves could not be protected; a compilation of moves might be protected if sufficient originality could be demonstrated; even if a copyright were granted for a collection of moves, it would be a "thin copyright" and would likely be limited to performing the moves in the exact sequence; and the performance of yoga moves did not necessarily amount to their publication. As for the use of heat as part of the sequence -- and who wouldn't want to be in a yoga room packed with half-naked sweaty people -- no protection can be granted for this "concept." In September of this year, Bikram started up again, this time going after YTTP for copyright and trademark infringement. Bikram has received several copyrights for books and other compilations. However, the Copyright Office announced last week that yoga moves are not eligible for copyright protection. Bikram's lawyers discounted that decision as meaningless because Bikram's copyright has already issued and is presumed valid. It's true that there is a presumption of validity associated with a copyright registration but it's a rebuttable presumption and courts periodically eighty-six registrations when the situation calls for it. This may prove to be one of those situations.
Can you use the trademark? Probably, the strongest claim that Bikram can make is for trademark rights -- specifically as to the use of the name, Bikram Yoga. Bikram hasn't made the mistake of Pilates and permitted the unlicensed use of his name. So, if he can demonstrate that the Bikram marks (and we're not sure what is claimed beyond the name)  have been used, he may be able to succeed on trademark infringement claims.
Can it be patented? We don't think a collection of yoga moves is patentable, an opinion shared by other patent practitioners and by the patent office, although it is possible to obtain patents on yoga products, like the yoga gloves and shoes, shown above). (And of course let's not make the sad journalistic mistake of confusing copyrights and patents.)
Bottom Line Dept. If we were a betting blog, we would bet that Bikram will fail in his current copyright case though we doubt if that will deter the celebrity attraction that is associated with his "brand." The takeaway point, however, is that, until stopped by a published court ruling, the company is likely to continue to aggressively "protect" its turf.