Wake Up and Smell the Incense

By Robyn Parets

Holy savasana!

It’s time for yogis to wake up from resting pose — the English translation for the Sanskrit word pronounced shiv-asana — and smell the incense.  In the latest salvo proving big business is here to stay in the yoga world, a company received a patent last week for its technique of filming yoga classes for online distribution.

On December 10, Santa Monica, Ca.-based YogaGlo, Inc. was issued a patent claiming that its technique for filming a yoga class is novel. In a nutshell, the patent gives YogaGlo exclusive rights to film yoga classes from the back of a room with a camera about three feet off the ground. It also requires that there be a “no mat zone” or “corridor” from the camera to the teacher whereby students are situated on mats on either side of the corridor. This enables a clear view from the camera to the instructor.

Yogis aren’t the only ones wondering why a patent this general and certainly not novel was granted in the first place.

Joel Lehrer, a partner at Goodwin Procter LLP in Boston, said it didn’t appear as if there was any legitimate invention in the way YogaGlo films its classes. Filming from the back of a class with an unobstructed view of the teacher is commonplace. Yet, YogaGlo managed to get the patent probably because the patent examiner didn’t quite understand the dynamics of a yoga class and that filming a teacher down a center aisle from a specified height is not unusual, he said.

“This patent (US serial number 8,605,152) gives YogaGlo the right to restrict others from doing what their patent covers and gives them a government-granted limited monopoly if they choose to enforce it,” said Lehrer, who specializes in patent and intellectual property law.

Oftentimes vague patents in other businesses do get approved. The software industry has been grappling with this for years, said Lehrer. In fact, even software companies with valid inventions are sometimes hesitant to file patents for fear of alienating their customer base. He explained that there is a stigma surrounding what some consider “inhibiting the advancement of technology.”

“Some companies in the software space choose not to pursue patents for fear of the backlash. They are afraid people won’t want to work for them or do business with them for ethical reasons.”

This industry backlash, said Lehrer, is something a company like YogaGlo could face if it chooses to enforce its patent.  In fact, while waiting to see if its patent would be approved, YogaGlo did send companies cease and desist letters, including the non-profit organization Yoga International.  Now, however, YogaGlo also has the right to charge licensing fees to companies that want to continue filming videos in a way consistent with the patent.

YogaGlo, which did not respond to inquiries for an interview, has been radio silent on this issue since last week’s news. But Lehrer said the company could also decide not to police the patent at all. “They are under no legal obligation to enforce it,” said Lehrer.

Todd Wolfenberg, executive director at Yoga International, said his organization removed 14 videos from its website in response to YogaGlo’s cease and desist letter.  “They were filmed in a similar way (to YogaGlo’s classes). Our cameras were about five feet off the ground but we also had aisles with students on both sides and a teacher in front.  Many people have filmed using this orientation before. Without an aisle, you can’t see the teacher,” said Wolfenberg, who said his organization, part of the 400-acre Himalayan Institute, does not want to get embroiled in a court battle.

Yoga International, said Wolfenberg, has the means and ability to film classes from different angles and is in the process of doing just that.  Visitors to the site usually have to pay for video content. Yet, while Yoga International is re-shooting certain classes, all video content is free.

“We think it serves you better in the long-term to take the high road. It’s better than lashing out and getting angry,” he said.

Yoga International is not the only one that this patent may affect. Companies in the business of filming yoga classes are plentiful and include Gaiam Inc., a publicly traded corporation that recently purchased My Yoga Online (MYT); YogaVibes; Yoga Download; and Yoga Today.  All of these companies charge fees for viewing content. There are also plenty of yoga teachers and companies that provide their streaming classes for free or by donation, such as DoYogaWithMe.com.  Still other large studio chains, like YogaWorks, now offer their own online system for viewing classes taught by their instructors.

Jamie Kent, president and founder of Denver-based Yoga Download, couldn’t believe a yoga company received a patent of this nature.

“This is far-reaching and goes beyond the yoga world. It has implications in the film industry, fitness business and other markets as well,” said Kent. “If one company can patent a camera angle, what’s to stop others from doing the same thing?” she said.

Yoga Download, with 9,000 monthly members, both creates its own content with a group of teachers and works with content partners who wish to stream videos on the Yoga Download platform.  About fifty percent of its business comes from membership and the other half is generated through single downloads or other non-member purchases. Kent said the company will now diligently convey new filming guidelines to its content providers.

Kent, as well as others in the yoga video streaming field agree that as the industry grows, smaller studios and yoga teachers will need to be aware of this patent and its ramifications.

Tania Neild, founder of StudioLiveTV, works with yoga studios to create a platform, or channel, to deliver online classes.  Since StudioLiveTV handles the technology end for its partners, it will ensure that classes are filmed in a way that doesn’t infringe on the patent, said Neild.

So far, the YogaGlo patent has only affected a couple of classes on the company’s Fitness for Action channel. The fundraising channel was launched to raise money for victims of the typhoon in the Philippines and other charities. YogaGlo, as well as other yoga content providers, donated classes. YogaGlo asked StudioLiveTV to remove a couple of the classes that infringed the pending patent and StudioLiveTV obliged, said Neild.

“They were very polite and were also generous in donating to our channel,” she said.

Nonetheless, it was a wake-up call that expertise from companies like StudioLiveTV and Yoga Download will be in high demand. Neild and others also note that the patent flies in the face of what many consider yoga to be all about: a healing art meant to help people on their path to wellness. Despite this, yoga is emerging as a business, not unlike any other industry. And with that comes potential lawsuits. In fact, the only way to challenge this patent entails going to court or a filing at the Patent Office, said Lehrer.

One way to invalidate a patent in court is by proving the existence of “prior art.” Essentially this would mean others, or even YogaGlo, used the same filming technique before August 2009, at least one year before YogaGlo initially filed for its patent in August 2010, said Lehrer. Yet, simply challenging the validity of a patent, regardless of its merit, can cost hundreds of thousands of dollars, he said. The only other legal alternative, also costly, entails going to court as a defendant if YogaGlo threatens a lawsuit, he said.

The buzz in the yoga community is that perhaps Yoga Alliance, a non-profit association representing yoga teachers, will step up to the plate. Yet, YA isn’t sure what it will do next.  Although YA opposes the patent, President Richard Karpel stated, “I can’t provide more details about our plans because they haven’t been determined yet.”

As ugly as all this may sound in a business built upon peace, love and flowers, this may not be the last patent for yoga related businesses. ”Sadly, exclusive feels good to some. It’s contradictory to yoga, but it happens,” said Neild at StudioLiveTV.

According to Wolfenberg at Yoga International, it’s important for those involved in the yoga and business community at large to educate themselves. “It’s a very strange type of situation and I don’t know where Pandora’s box is going to open up next,” he said.

There’s one thing Wolfenberg knows for sure: “Yoga is changing.”

Robyn Parets is a journalist, editor, yoga teacher, and owner of two yoga-related businesses: Breathe Joy Yoga studio (www.breathejoyyoga.com) and Pretzel Kids, a trademarked children’s yoga brand (www.pretzelkids.com). She also blogs about yoga, business and life in general and can be found at www.awayfromom.net.