Tracy Anderson, the mastermind behind the Tracy Anderson Method, sued ex-trainer Megan Roup for allegedly stealing her routines and licensing them to Equinox. The US District Court just ruled against Anderson’s copyright claim. Join Scott Hervey and Jamie Lincenbergfrom Weintraub Tobin on “The Briefing” as they discuss the case’s impact on fitness entrepreneurs.

Get the full episode on the Weintraub YouTube channel here or listen to this podcast episode here.

Show Notes:

Exercise is a multi-million-dollar business, and nobody knows that better than Tracy Anderson, celebrity fitness trainer and creator of the Tracy Anderson Method. The Tracy Anderson Method is a fitness routine that combines choreography, fitness, and cardiovascular movement, and it served as the foundation for multiple exercise studios and 19 home videos. Anderson sued one of her former trainers, Megan Roup, for ripping off her routines to create her own choreography-based dance cardio workout, which Roup later licensed to rival gym chain Equinox Holdings. The US District Court for the Central District of California recently ruled on Rupp’s motion for summary judgment, denying Anderson’s relief on her copyright claim. I’m Scott Hervey from Weintraub Tobin, and I am joined today by Jamie Lincenberg. We’re going to talk about exercise routines and copyright and what this case means for celebrity trainers and fitness entrepreneurs in this next installment of “The Briefing.”

Jamie, welcome back to “The Briefing.”

Thanks, Scott. It’s Good to be here and to get into this case. I’ve actually done the Tracy Anderson method and Megan Roup’s classes.

That’s great. That’s great. You speak from first-hand experience, so this is great. Exactly. All right, so let’s talk about the cases. The facts are fairly straightforward. Anderson is a fitness trainer who developed the Tracy Anderson method. She has studios in LA, New York, Madrid, London, and she’s got merch, lots and lots of merch. She has truly built a fitness empire. Roup was a trainer in a Tracy Anderson gym from about 2011 to 2017. And Roup signed a trainer agreement upon her employment, which contained a mostly standard confidential information provision, which identified workouts, movements, exercise, routines, exercise formulas, nutrition advice, content, sequences, dances, muscular structure, work, and equipment as being, “confidential information”. After Roup left Anderson’s employment, she founded TSS, another choreography-based dance cardio workout.

Two weeks after terminating her employment with Tracy Anderson in February 2017, Roup sent emails to potential clients, including clients of Anderson’s, announcing her development of TSS, her choreography-based dance cardio workout. In March 2017, Roup announced on social media her launch of TSS, equals Equinox licensed TSS from Roup, and while working with Equinox, Roup prepared an instructor training manual for TSS, which Anderson alleges included much of the same information contained in Anderson’s confidential training materials.

So after some initial law in motion, Anderson’s remaining claims were whittled down to copyright infringement and breach of contract. Roup then moved for summary judgment on both of those remaining claims. So as to the copyright claim, Anderson asserted that Roup infringed on the copyrights Anderson has in her home videos since the videos copy the choreography, movements, sequences, and the routines from the videos. Anderson is in arguing that Roup copied the home videos themselves, but that she copied the underlying routines that are captured on the footage. Anderson believes that the copyrights in the home videos extend to the routines that are captured in the home videos.

So, Roup didn’t dispute the similarity between hers and Anderson’s exercise dance routine. However, she does argue that Anderson can’t prove its copyright claim because Anderson’s underlying exercises in the videos are non-copyrightable under the Ninth Circuit case of Bikram’s Yoga College of India versus Evaluation Yoga.

In Bikram, Bikram Choudhury developed and popularized The Sequence, which is a series of 26 yoga poses and two breathing exercises. He published a book that included descriptions, photographs, and drawings of the sequence. After, the two defendants participated in his yoga teacher training courses, and then they started a competing company that used the sequences in their yoga classes. Choudhury sued for copyright infringement. The Ninth Circuit held that the sequence was a system designed to yield physical benefits and a sense of well-being and a healing methodology which is not eligible for protection by copyright. As a result, the copyright protected only the expression of this idea, meaning the words in the pictures used to describe the sequence in his book, and not the idea of the sequence itself. In other words, Choudhury’s copyright in his book did not extend to protect the sequence itself, meaning the 26 yoga poses and two breathing exercises.

Anderson tried to argue that the routines are protectable choreography under the Ninth Circuit’s holding in Hanagami verse Epic Games. Hanagami involved a claim by a YouTube dancer based on the video game creator’s use of Shortbit from one of Hanagami’s dances in the video game Fortnite. In Hanagami, the Ninth Circuit adopted the US Copyright Office’s definition of choreography, which isn’t really a bright-line definition. According to the US Copyright Office, a choreographic work contains one or more of the following elements. Rhythmic movements of one or more dancer’s bodies in a defined sequence and a defined spatial environment, such as a stage, a series of dance movements or patterns organized into an integrated, coherent, and expressive compositional whole, a story, theme, or abstract composition conveyed through movement, a presentation before an audience, a performance by skilled individuals, or musical or textual accompaniment.

Wow, Jamie, you weren’t kidding when you said that the Copyright Office office’s definition of choreography isn’t really a bright-line definition. The Copyright Office, while they gave us this generalized idea of what is choreography, they did give us some bright-line guidance here that was applicable to Anderson’s case. They did say that general exercise routines and athletic activities are not protectable choreography. I think the Anderson court could have stopped there. However, the court decided to create a new two-step analysis to navigate between Bikram and Haganami. So in determining whether Anderson’s routines are copyrightable or not, or whether anybody’s routines are copyrightable or not, at least in the central district and probably under the Ninth Circuit, plaintiff must first establish that the work is a copyrightable expression as opposed to unprotectible ideas, processes, or systems. And then, if the work is copyrightable, show that the dance rises to the level of protectable choreography under the Copyright Act. Now, with regard to Anderson’s routines, the Court found them to be an unprotectible process, system, and/or methodology. And although Anderson’s process was original and the result of substantial investment of time, the Court decided it could not be protected as copyright.

Right. So although the Court dismissed Anderson’s copyright claim, it did not, however, dismiss Anderson’s claim that Roup was in breach.

Yeah, that’s right. The court found evidence that Roup sent out emails announcing her competing fitness program, The clients of Anderson’s, making use of Anderson’s client list and client information, and that this created a disputed issue of fact as to whether the client information constitutes confidential information and whether Roup used it, thereby breaching her employment agreement.

So, Scott, what can we learn from this? What’s the takeaway? Was there any chance that Anderson’s routines could have been characterized as protectable choreography?

Well, the court does point out that Anderson refers to her routine as a method in many places. The court cites too many references by Anderson to the Tracy Anderson Method and to it being a fitness methodology. But even if there hadn’t been so many references to the routines as a method. As I think, as I mentioned above, the US Copyright Office said that exercises are excluded from being copyrightable. So I don’t think that Anderson could have prevailed on her copyright claim. However, Anderson’s breach of contract claim does seem strong. And that seems to be one lesson here: the value of a very strong confidentiality agreement.

Thanks, Scott. That’s really interesting. And I’m glad you brought this case to our attention.

Yeah, we’ll keep track as this goes through the court if there’s any further movement on her breach contract claim. But I’m assuming the parties are probably going to settle, so we’ll see.

Thanks for listening to this episode of “The Briefing.” We really hope you enjoyed the episode. And if you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. If you have any questions about the topics that we covered today, please make sure to leave us a comment.