domingo, 12 de dezembro de 2010
The litigious yogi - Bikram Choudhury is trying to do to yoga what McDonald's did to food
ACCORDING to Patanjali, the great sage of yoga who lived in the second century BC, yoga is about bringing the mind to complete stillness and thus reaching liberation from mental delusions such as anger, egoism and greed. This may not be immediately evident if you are in a yoga class taught by Bikram Choudhury. Bikram—he prefers to go by his first name only—teaches a series of 26 postures in a room heated to 41 degrees Celsius, with mirrors on all sides for better views of the sweaty bodies. “What is yoga? Shit together,” he preaches through his microphone. “Bullet proof. Sex proof. Fire proof. Wind proof. Everything proof,” he says on another occasion. “If you can take my shit, one day you will become a better person.”
Bikram is to the yoga world what fast food is to the culinary world. He is supremely responsive to the needs of the modern, western marketplace (15m people practice yoga in America alone), and thus popular with the yoga “masses”. And he is looked down upon by yoga's gourmets, who tend to practice the Iyengar or Ashtanga style of yoga. Like B.K.S. Iyengar and Pattabhi Jois, two fellow Indians who are associated, respectively, with the gourmet schools, Bikram (www.bikramyoga.com) has found celebrity and wealth through yoga. In fact, judging by his fleet of Bentleys and Rolls-Royces and his villa in Beverly Hills, Bikram probably has the edge over his upmarket rivals.
His main claim to controversy, however, is that he seems determined to take the analogy to fast food to its logical extreme. Just as McDonald's franchises its branches, Bikram wants to franchise his style of yoga to the more than 900 studios around the world that were started by his former students. To this end, he has trademarked phrases such as “Bikram Yoga”, “Bikram's Basic Yoga System”, and so forth. And he claims copyright not only for his books and videos (where copyright is anyway automatic), but also for his “dialogue”—ie, what is in fact the teacher's monologue in a Bikram class—and for the 26-pose sequence itself.
At first, this intellectual-property strategy seemed to be just another of Bikram's wry jokes. Nothing of the sort had ever been attempted before. The closest precedent was an attempt in 2000 by a teacher of Pilates—a popular fitness method invented in 1914 by a German prisoner-of-war, Joseph Pilates—to enforce the trademark “Pilates” against another studio that used the name. The judge rejected that claim, ruling that Pilates had become a generic name, and thus not one entitled to protection.
Undaunted, in 2002 Bikram ordered his lawyers to start sending out “cease-and-desist” letters to Bikram studios, demanding that the owners stop infringing on his alleged property and start paying him money. Last year, Bikram made an example and sued one studio south of Los Angeles. That suit ended last June with a private settlement, but Bikram claimed a big victory on his website and ratcheted up his threats to all the other “impostors” out there. Suddenly, Bikram teachers everywhere, most of whom run small “mom-and-pop” businesses that make an unglamorous living, got scared.
A number of them responded by banding together in an alliance called—echoing the software battle of Linux against nasty Microsoft—Open Source Yoga Unity (OSYU) and hired their own lawyers. OSYU's stated purpose is to fight for the idea that “Yoga cannot be owned, transferred, franchised, trademarked or copyrighted.” In April, OSYU scored an initial victory against Bikram in a federal court in California, establishing its right to represent studio owners and preventing Bikram from going after them one by one before the legal concepts are clarified.
Bikram says that he is not, in fact, trying to franchise or copyright yoga as such, only his specific sequence of postures and way of teaching it. Thus he would admit that all the constituent parts of Bikram Yoga—the “asanas” (postures) and “pranayama” (breathing techniques)—have been in the public domain for about 5,000 years, since they were first painted on to caves and temple walls in India. But he argues that these asanas and pranayama are like musical notes or dance steps—public property to begin with, but private property once they form part of a song or ballet. Just as “Swan Lake” is no longer “Swan Lake” if you change its notes and steps, Bikram Yoga no longer delivers its health benefits, he claims, if you mess with his precise formula.
It should be said that, as with fast food, these alleged “health benefits” are themselves a matter of controversy. Some doctors, as well as many gourmet yogis, worry that the extreme and artificial heat in Bikram studios can lead to dehydration, over-stretching or worse. But put this debate aside for the moment, and give Bikram the benefit of the doubt.
His problem now becomes one of legal logic. If Bikram Yoga is indeed, for legal purposes, akin to “Swan Lake”, Bikram might actually have a case. But Bikram himself does not claim that his classes are performances with inherent artistic or expressive value; instead, he boasts that their purpose is health. In legal jargon, that may make Bikram Yoga a “functional” process, which is an area covered by patent law, not copyright. Bikram has no patents and, even allowing for the eccentricities of America's Patent Office, no hope of getting any.
Bikram's licensing of his sequence, says Jim Harrison, a lawyer for OSYU, is thus less like selling the rights to a song and more like lecturing about the “Kama Sutra” and then trying to charge couples a fee every time they have sex in one of the positions. Or, returning to that fast-food metaphor, like Bikram writing a new recipe for hamburgers and then showing up at barbecues to charge the people flipping the burgers. Intellectual-property law is crucial to economic success. But extending it to yoga will—The Economist's spiritually enlightened, physically limber journalists hope—prove too much of a stretch.
Fonte: The Economist - http://www.economist.com/node/2765973