Expert: Kacey Cahill - 12/23/2008

Question
Hello there Kacey,

This is an unusual question.  Though I know I can't be the

first one to have faced this specific problem...

--Is it possible for someone to copyright martial arts?  

What aspects of a martial art does an organization or

federation own/have exclusive rights to?

I'm fairly highly ranked in a Korean martial art called

Haidong Gumdo.  (http://eng.hdgd.org/) Recently, I was

told by a representative of this organization that I was

not allowed to practice, teach, videotape, or write about

the martial art without express permission of the 'World

Haidong Gumdo Federation.'

This seems awefully strange to me.  Trying to copyright

something like karate or kung-fu would seem, (on an

intuitive level), to be like trying to copyright baseball

or tennis.  I understand that an organization has

exclusive rights to logos, names, etc....  but if I were

to go and teach techniques to students without the

organization's permission, could I be charged with

"misappropriating trade secrets" or some such?  There's

only so many ways to throw a punch.  Surely someone

doesn't 'own' that?

--Is it possible for a martial arts organization to

copyright techniques like this?

--Specifically, can individual forms/kata be copyrighted

as as creative works like videos or art?

--Does the organization/governing body/business/ownerhave

the rights to the activity itself, or just to the

mechanisms for teaching it?

--The organization is based in Korea.  I live and work in

canada/UK. Does the fact I live in another country other

than Korea protect me somewhat through the mechanism of

international copyright law?

--If I were to write a book about their martial art

explaining history, philosophy, practice and techniques

etc, would I be at risk of being sued?

--Could I upload videos of myself/my students practicing

their martial art onto youtube?  (They're particularly

stick about this one.  They somehow think that if people

can view videos of the forms online, then they won't pay

for classes/instruction.  This has made it hard for me in

the past to get supplementary/reference material to

students...)

--What am I allowed to do from a business standpoint, and

how worried should I be about prosecution?  The HDGD

federation is becoming fairly large.  (about as big as the

world taekwondo federation or japanese kendo federation)
 
Essentially, my view is that martial arts and business

aren't really compatible.  In my experience protectionist

business attitudes encourage financial exploitation of

students, and detract from what is supposed to be a "pure"

spiritual activity that focuses on self-discipline.  

Perhaps there are comparisons to be drawn to the business

-ification of religion?  I'm not really sure what I'm

saying.... I'm all for giving someone due credit and

profit for something they created.  But making tons of

money off of people who practice martial arts seems

somehow wrong or dirty. Make the money on the tools and

the sports gear and the instructors and the venue.... but

to tax someone every time they want to practice a sequence

of moves....  that'd be like taxing someone every time

they wanted to throw a tennis serve.  arg.  

Anyways.  My goal is to either teach part time in a

community center, or possibly open my own commercial

school.  When I started out with this activity, I didn't

think that the organization would try to take such direct

control over what I do and how I do it.  I'm just

wondering how much control they have over me and my

students, and how much freedom we can get away with.

If you read this entire thing, well done you.  Thanks for

your time and efforts.

Best regards,

Grant Baldwin


Answer
Grant. I am answering this question under US law -- so I cannot be responsible for any US - UK or Canadian differences.

If the World Haidong Gumbo Federation has copyrighted works (books videos) and you in your classes are reenacting the video or acting out the book (like acting out a written play) then you are violating their copyright.  Copyrights, however, do not cover ideas.  So if you read a book about the philosophy and basic principles of this art and teach a class, that is not a violation of the copyright covering the book.
If they have a patent on it in a jurisdiction where you are (which I doubt very much), then it would be a method patent.  You could not be able to practice the method described in the "claim" part of the patent without their permission, but you could do anything else.  Patents cover inventions that have been reduced to practice.  Method patents are getting increasingly difficult to get and enforce.

If they are asserting trade secret, then the idea had to have been a secret, and you would have had at some point to agree to keep it one.  This seems unlikely to me since this is meant to be taught.

My guess is that they have some contract or terms and conditions that people sign or otherwise agree to to get something (or join the organization) and that those terms dictate what you can and cannot do with the things they "teach" you.  If that is the case, then look to those documents (or click agreements).  Whether those terms are enforceable as a matter of contract law is a different story (and fact based).

Ask them.  Say something like, "what you are asserting does not make sense to me.  Please explain with specificity the grounds on which you assert that I cannot teach, etc."

The book.  Ask yourself: (i) would the book be copying or be largely based on a written or recording work of the World Haidong Gumbo Federation?, (ii) Are they asserting a patent right over it in a country where you would sell the book? (here you would arguably be a contributory infringer -- teaching people how to infringe the patent), (iii) have you signed or agreed to terms that limit you from writing book?

The class.  Ask yourself the same questions as above:  (i) would the class be acting out a book or be largely based on a recording work of the World Haidong Gumbo Federation?, (ii) Are they asserting a patent right over it in a country where you would teach the class?, (iii) have you signed or agreed to terms that limit you from teaching that class?

The uploaded class videos.  Largely the same analysis as the class one.

I hope this helps.  My thought is there is an agreement out there somewhere (that you may or may not be aware of) that you signed or clicked "yes" to.  Please know this information is being provided for educational purposes only and is not intended to be legal advise.

Kind regards,

Kacey Cahill
kcahill@kaceylaw.com
www.kaceylaw.com