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This essay uses the Ninth Circuit’s opinion in Bikram’s Yoga College of India v. Evolation Yoga as an opportunity to analyze the nature of copyrightable authorship and the mechanisms that the law uses to screen out uncopyrightable content from otherwise copyrightable works. I argue that although the court likely reached the right result in Bikram, it did so in a confused and poorly supported manner. The court misunderstood the nature of the idea/expression distinction, the role of section 102(b), and the appropriate mechanism for screening out functional features of works. These aspects of the court’s opinion are widespread in copyright jurisprudence, especially in situations in which potentially copyrightable expression is combined with unprotectable functional elements. Essential to these questions is an understanding of the nature of copyrightable authorship. To that end, I offer a four-step analysis for determining the copyrightable aspects of works of authorship.

Library of Congress Subject Headings

Copyright, Creation (Literary, artistic, etc.), Copyright infringement, Fair use (Copyright)