How Graham v Graham Shocked Artists into Legal Awareness

This article was originally published in the Fall 2012 issue of the Columbia Undergraduate Law Review.

Marygrace Patterson is an alum of Barnard College, class of 2012. She can be reached at [email protected].

Introduction

Martha Graham’s Appalachian Spring premiered at the Library of Congress in 1944. According to the legislation of the time, the ballet itself was not copyrightable, despite its first performance at the institution of the national copyright registrar.^[1] Choreographic copyright has a long and complex history, which has shaped the audience’s experience of dance works in America, and has come to the forefront of artistic discussion in the past two decades. Following Martha Graham’s death in 1991, two major legal battles erupted, one related to the trademarking of Martha Graham’s name and technique, another related to the copyright ownership of her seventy dances.^[2] Appalachian Spring, among nine other remarkable works, was left in the public domain and a legal precedent was set that restricted the artistic ownership rights of choreographers. Set to a score by Aaron Copland and incorporating a set by Isamu Noguchi, Appalachian Spring painted a poignant portrait of the American frontier and set a high standard for the blossoming modern dance movement of the mid-1900s. Although this dance was once revered for its artistic genius, today it functions primarily as an illustration of copyright law as it relates to dance. The cause of this transformation from great American dance to exemplar of copyright issues is the subject of this essay. Not only does the case illuminate a topic increasingly vital to the live arts, but it also has ignited an important discussion surrounding the merits and pitfalls of choreographic copyright. If copyright has the potential to be used to protect and disseminate a dance, it also can be used to control and restrict public access to that dance. Copyright should be utilized to prevent ownership disputes and provide financial support to artists; it should not be relied upon to preserve ephemeral art. Young dancers, aging choreographers, and dance lovers alike must now consider the weight of the law and understand what they can do to preserve, promote, and protect American art.

The history of copyright begins with the Constitution, which outlined the basic goals of copyright protection as well as its practical limits. This essay will present the historical cornerstones of choreographic copyright law, as well as a central discussion of the Martha Graham case and its impact on choreographic copyright. While she was not the first artist to influence the field of dance law, her case prompts discussion of every major issue that arises with choreographic copyright. By better understanding the costs and benefits of relying on copyright law, artists may take steps toward revitalizing their creative community. Ultimately, I will address the contemporary American choreographer who may ask, “What should I do to protect myself and my work? What are the limitations to existing copyright protections? What are the benefits of those limitations? And, how can the artist most effectively utilize choreographic copyright?” Understanding Graham v Graham will assist in formulating answers to each of these questions.

The immense struggles of the Martha Graham Dance Company (MGDC) caused a sea change in the dance community’s awareness of legal issues. Although the two major cases, under the umbrella title of Martha Graham School and Dance Foundation, Inc. v Martha Graham Center of Contemporary Dance, Inc. (“Graham v Graham”), grew out of a unique set of circumstances, they relied upon the precedent set by many other artists. Both the trademark dispute (“Graham v Graham 1”) and the copyright dispute (“Graham v Graham 2”) hinged on the actions of a man named Ron Protas, to whom Martha Graham had willed all of her property when she died. Using the law to advance his control over Graham’s legacy and the MGDC, Protas manipulated his way to power while betraying Graham’s lifelong artistic aims. Ultimately, this dispute led to the near destruction of a major choreographic legacy, and ignited efforts to protect the dances of many other choreographers. For this reason, Graham v Graham remains the central example of the positive and negative effects of choreographic copyright.

It is important to acknowledge the choreographic copyright cases proceeding and following Graham v Graham. The prior cases provide the legal framework within which the Graham case was decided, while the cases that occurred after Graham v Graham underscore the immense shift within the dance community that occurred because of this decision. From a legal dispute involving the New Dance Group in 2007 that granted choreographers implied ownership to their dances, to the closing of Merce Cunningham’s school and company after his death, to Twyla Tharp’s preemptive digitizing of dances and release of her work into the public domain, Graham v Graham has spurred a revolution regarding the rights of dancers.

While choreographic copyright can be used to maintain artistic heritages, there are limits to its protections that are compounded by the ephemeral nature of dance. As Jesse Huot, Twyla Tharp’s son and business manager notes, “Our art does not deteriorate the same way [as other arts]. The paint doesn’t chip and it can be in many places at once.”^[3] It is this intangibility of dance works that makes choreographic copyright such a fraught and important issue. Qualitative deterioration, choreographic authenticity, artistic intent, and preservation are issues that abound in this discussion of the legal protection of dance.  These problems contribute to the argument that choreographic copyright, when misinterpreted, can act against the goals of both copyright and choreographers.

Background: The Constitution and Copyright Acts

The Honorable Judge Miriam Cedarbaum, who wrote the opinion on Graham v Graham, saw a singular document as the keystone to her judgment on these landmark cases: the Constitution of the United States of America.^[4] Article I, Section VIII, Clause VIII of the Constitution, also known as the Copyright Clause, reads that Congress has the duty “To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writing and Discoveries.”^[5] The Founders saw copyright, a limited monopoly over written ideas, as essential to this success. Preservation was never made a priority in the Copyright Clause; rather, promotion of creation through financial and legal support was the goal. This claim is supported by the specific language “securing for limited Times” utilized in the Copyright Clause, which emphatically puts a temporal cap on authorship rights. More simply, copyright intends for the public and the creator to benefit equally from individual contributions. Today’s choreographer, therefore, cannot use the Constitution, or any legal acts stemming from the Constitution, to keep his or her art from the public. The Copyright Clause can be used only as a source of pecuniary motivation for creation or protection of an artistic legacy, not for isolating choreography from dancers in order to attempt to eternally preserve the dance in its original form.

The founders did not have choreographers in mind when they drafted the Copyright Clause, however, evolution in the arts has given way to a common understanding that the creation of a dance implies artistic authorship.  Since the ratification of the Constitution, not only has there been progress in the realms of art and science, but also an evolution of the concepts of “author” and “inventor.” If the authorship of a dance contributes to “useful Art,” then choreographers are subject to the same standards of copyright protection as all other inventors. If the dance author, the choreographer, seeks the protection and economic gains of the Copyright Clause, he or she is also bound by the language and intent of the clause in its entirety. What many fail to appreciate is the limited nature of the legal protections afforded by the Clause, as well as the purpose of its very existence. Copyright protection, when it was created, was not infinite, and was intended to benefit society through the financial encouragement of creative contributions. According to the Copyright Clause, creation is as important as preservation; the latter should only act in coordination with the former so that future generations might benefit from historical contributions.

Emerging from the Copyright Clause is a chronological series of Copyright Acts, which provided terms of application of copyright that the Copyright Clause had theoretically instated. These Copyright Acts had a major impact on Judge Cedarbaum’s 2002 Graham v Graham 2 opinion, specifically in relation to copyright ownership issues. The first was drafted in 1790 and was the primary Congressional implementation of copyright law.^[6] The “encouragement of learning” was cited as the aim of the Copyright Act of 1790, emphasizing progress over preservation as the purpose of copyright.^[7] The Copyright Act of 1909, drafted under Theodore Roosevelt as a response to evolved methods of reproduction and duplication, remains the statutory landmark for copyrighted works created before 1976.^[8][9] It also stipulated that if no notice of copyright was affixed to a work and the work was not “published,” the 1909 Act did not extend copyright protection over the work, and it became part of the public domain.^[10] This act was the reason that ten of Martha Graham’s dances were left in the public domain following Graham v Graham 2, as will later be discussed.

The Copyright Act of 1976 adapted the Copyright Act of 1909, allowing copyright protection to attach to original works in a tangible medium of expression, or “fixed form,” regardless of publication or affixation of a copyright notice.^[11] The heightened importance of video in the 1970s coincided with the drafting of this Act and allowed dance to be translated into a tangible form for copyright and entertainment purposes. The 1976 Act also coined the term “fair use,” and in Section 102, extended the meaning of “works of authorship” to include “pantomime and choreographic works.”^[12] It is the Copyright Act of 1976 that remains the most important tool for dancers seeking copyright protection, and the sole reason many of Graham’s dances were protected, as they had been filmed and were therefore copyrightable.[13] Because of the Copyright Act of 1976, unpublished dances created after 1976 have legal ground and no longer immediately enter the public domain.^[14]

The final piece of legislation necessary to understand contemporary choreographic copyright is the Copyright Renewal Act of 1992. This act significantly altered the original intent of the Copyright Clause by extending the length of copyright protection to 100 years after the death of the author and allowing renewal of copyrights without reapplication of the copyright holder.^[15] This most recent legislation is also the most controversial to date. While prior acts had been passed in the interest of reflecting the evolution of technology and what constituted authorship, this act extended the idea of a limited monopoly to an extreme and, as a result, emphasized preservation over creation as the goal of copyright. Since the Copyright Act of 1976 had coined the term “fair use,” allowing copyrighted dances to be utilized for educational purposes, the Dance Heritage Coalition sought to protect the pre-Renewal Act ability to use past art to inspire present art and scholarship. The Copyright Renewal Act undermines the goals of the Copyright Clause and complicates a discussion of choreographic copyright, because of its limitation of scholarly endeavors and creative inspiration.

In sum, the Copyright Acts of 1790, 1909, and 1976, as well as the Copyright Renewal Act of 1992 created the basis for the Graham v Graham 2 decision. It took Martha Graham’s weak will in which she outlined the terms of her estate after her death and a power-hungry man to ignite the fight for Graham’s legacy. However, if the dancers, board members, audience members, and donors who had long supported Graham’s artistic vision had a clearer idea of how they could utilize copyright law to protect that vision, the struggle may have turned out quite differently.

Martha Graham

The case on which all issues of contemporary choreographic copyright rest is Graham v Graham, the two major legal disputes which followed Martha Graham’s death at the age of 96. When Martha Graham passed away in 1991, her school and dance company were thriving; the school’s classes were full, and the company performed and toured routinely. By the end of the decade, the school had shut down, the company had ceased performing, and the center was over one million dollars in debt. Today, the Martha Graham Center of Contemporary Dance (“the Center”), which oversees MGDC, and the Martha Graham School (“the School”) are, against all odds, gaining artistic and economic momentum once again. Despite the complex and lengthy history behind the Graham legal battles, this case is the best contemporary demonstration of the effects, positive and negative, of copyright protection. Disputes ranging from the trademarking of names and dance techniques, to the changing tides of copyright law, and the ownership rights of artists abound in this ten-year battle over the future of the Graham legacy.

Ron Protas

The chief cause of Graham v Graham was a man named Ron Protas. When he befriended Graham in 1967, Protas was a freelance photographer and Columbia Law School dropout. With youthful charm, he soon became personally and professionally close to the seventy-three-year-old Graham, becoming her closest ally in matters pertaining to her company despite his lack of any previous dance training. He became an employee of the Center in 1972 prompting “resignations, requested by Graham, of longstanding members of the board.”^[16] Protas presumably used his close personal and professional relationship with Graham to influence her decisions about the board that had so long shown her and her art support. Some dancers including Stuart Hodes, who danced in Graham’s company from 1947-1958, would eventually use their artistic clout to overthrow Protas’s assumed authority. Unfortunately, they did not act soon enough.

Throughout the 1970s and 1980s Protas unabashedly manipulated the aging, arthritic, alcohol-dependent Graham into promoting his rise to power. Protas did everything for Graham, from running her personal errands to managing the Center’s finances. He also did the Center’s bookkeeping. Member of the Center’s board of directors, Judith Schlosser, testified during the first trial that the minutes were “usually edited by Mr. Protas,”^[17] making the record of these important meetings skewed in Protas’s favor. By the mid-1970s, Graham had appointed Protas executive director of the Center, as well as a member of both the Center and the School boards. In 1980, he became the co-associate artistic director of the Center, along with Linda Hodes, longtime Graham dancer and Stuart Hodes’ now ex-wife.  As Graham grew ill and became incapable of attending board meetings herself, Protas acted as her voice from 1987-1991.^[18] In the will Graham signed on January 19, 1989, Protas was named as her sole executor and legatee. The will read:

In connection with any rights or interests in any dance works, musical scores, scenery sets, my personal papers and the use of my name, which may pass to my said friend Ron Protas…I request, but do not enjoin that he consult with my friends, Linda Hodes, Diane Gray, Halston, Ted Michaelson, Alex Racoli and Lee Traub, regarding the use of such rights or interests.^[19]

Although the will gave Ron Protas all of Graham’s property, it did not make clear what she owned at the time of her death. James McGarry, the attorney who drew up her will, testified during the trial that a will like Graham’s took no more than an hour to draft. Graham either carelessly neglected to clarify to whom she left her dances or assumed that they were owned by the Martha Graham Center of Contemporary Dance, a corporation she had created in her name in 1956. Speculation over Graham’s intent, however, does not provide any substantial information about the legal protection of choreography.

After Graham’s death on April 1, 1991, Protas became the artistic director of the Center and the School. Shortly after Protas assumed his new position, his lawyer, Peter Stern, advised him to determine exactly what rights he had acquired from Graham’s will.^[20] In legal and financial matters, Protas was headstrong, leaving dancers and board members uneasy. However, nobody questioned the legitimacy of his claims and soon he successfully forced Linda Hodes out of her position of co-artistic director. Had the artistic personnel hired their own lawyer to investigate the legitimacy of Protas’s ownership rights the legal battle to come could have been either abbreviated or avoided. However, instead of pushing back against Protas’s managerial claims, everybody submitted to his demands, believing that they had no legal ground upon which to protest.

Protas’s authority was not limited to management, however. As evidenced by extensive testimony of many witnesses during the trials, company members had long despised Protas’s unwillingness to pay them on time, and felt that his desire for power and money was tarnishing Graham’s artistic vision. While Graham’s dances had always been subject to choreographic evolution, and further evolution is expected after the death of a choreographer, many dancers felt that Protas’s artistic direction fostered destructive changes to Graham’s choreography and artistic intention. The people who had long studied Graham’s technique, and had worked personally with Graham on the dances, found their artistic voices stifled by a man who wanted to establish his authority over all aspects of Graham’s legacy. Reasons such as these made Protas’s position of power a threat to Graham’s artistic heritage and made the Center and Graham dancers start to question what legal action could be taken to fight back. A man whom Graham’s dancers and closest friends despised, who had no previous training in dance and who saw economic, and not artistic, value in Graham’s work, portended the destruction of Graham’s legacy. In the minds of the board and company members, Protas had no right to be there, but to their dismay, he seemed to have every legal right to be there. The Center’s acceptance of Protas’s advances, as well as Graham’s neglectful last will, point to the need for a deeper understanding of the law among dancers and choreographers.

The Trademark Dispute

Among the common ways to protect choreographic legacies are trademarks and trusts. These efforts, as demonstrated by the management of Balanchine’s choreographic legacy, illustrate the benefits that choreographers can gain by utilizing the law. However, since the law does not discriminate against those who might work against the artistic missions of choreographers, Ron Protas was successful in using these entities to restrict the power of those who questioned his actions and motives, and to extend control over the Graham choreographic canon.

George Balanchine’s New York City Ballet is one of the most financially stable dance companies in the United States. His ballets are performed at consistently high standards, and his name retains its credibility nearly thirty years after his death. Protas closely observed the trademarking of the Balanchine Technique by the Balanchine Trust. Barbara Horgan, Balanchine’s longtime personal assistant, in collaboration with the lawyer, Hank Leibowitz, established the Balanchine Trust in 1987, following Balanchine’s death. The Balanchine Trust was formed by those to whom Balanchine had willed his copyrighted dances and it successfully trademarked the Balanchine technique. The Trust licenses Balanchine ballets, designates répétiteurs to stage them, upholds strict standards of performance, and collects royalties from those who perform the ballets.[21]

In 1993, Ciro Gamboni, a partner of Cahill, Gordon and Reindel LLP met with Ron Protas to discuss trademarking the name “Martha Graham,” and the “Martha Graham technique.” Protas held that the Center would receive 40 percent of the proceeds from the trademarking of Graham’s name and technique.^[22] In his application to the United States Patent and Trademark Office for the registrations of these titles, Protas used the support of an oral license from Martha Graham.^[23] After initial hesitation due to Protas’s flimsy evidence, the Patent and Trademark Office granted federal registration for MARTHA GRAHAM TECHNIQUE in August 1995, in the interest of “educational services; namely providing instruction through classes and workshops in the field of contemporary dance.”^[24] In October of that year, Protas obtained the federal registration for the use of the name MARTHA GRAHAM in the same interest as the trademark of the technique as well as “entertainment services; namely, organizing and producing performances of contemporary dance.”^[25] Normally, these trademarks would be utilized in the interest of promoting and protecting a quality-assured legacy, as Balanchine’s had been. Instead, Protas used them in coming years to force the Center to submit to his artistic and managerial power, threatening to revoke their use of Martha Graham’s name and technique if they did not.

In 1998 Protas and his lawyer created the Martha Graham Trust (the Trust) and named Protas as its sole trustee and beneficiary. Created “to serve as a repository to hold and license all of the Martha Graham intellectual property that Protas claimed to have inherited,” the Trust cast further doubt on Protas’s “good” intentions.[26] The formation of Protas’s trust prompted the boards of the Center and the School to seek ways to replace Protas as artistic director. They also began negotiations with Protas for a license agreement to use the Graham trademarks. Protas claimed as a court witness, “The Martha Graham Trust was my response to requests and pressure from the Center to create some sort of process so that when I died the ballets would go to a foundation and they would have a licensing agreement from the trust, which was a not-for-profit entity.”^[27] In effect, however, the Center was relying on permission from Protas to perform Martha Graham’s works. Thus, the dancers and the board members had to further submit to Protas’s authority at the risk of not being allowed to perform the dances at all. These negotiations still failed to stimulate an investigation into the validity of the Graham trademarks, even though Protas had used faulty evidence of his exclusive ownership rights in his trademark and copyright applications.

On July 15, 1999, the Center and the School, and the Martha Graham Trust signed a written license agreement, in an effort to limit Protas’s control and obtain permission to continue to perform Graham’s ballets, and use her name and technique. It stated that “The Trust as licensor shall be the sole judge of whether any particular product or service bearing or offered under any Martha Graham Mark is within the scope of the license granted hereunder.”^[28] In other words, Protas would grant the Center permission to use Martha Graham’s name and technique, but would be the only person to determine if their use was admissible according to his artistic perspective. The agreement also provided Protas with an annual salary of $55 thousand in the first year, growing eventually to $76 thousand in the tenth year, as well as many benefits to be provided to an “artistic consultant” whom the Trust—Protas—would appoint.^[29] The enormously high salary declared in the license agreement made clear that Protas was more concerned with obtaining a steadily-growing salary than with the continued performances of MGDC and the financial stability of the School. However, because the validity of the trademarks of Martha Graham’s will had yet to be challenged, Protas was successful in retaining his power.

While the trademark license agreement did not stipulate that Protas step down as artistic director, the motive of consent of the Center and the School was to obtain permission from Protas to allow this to occur. Protas’s resignation as artistic director was in the interest of the Boards and the financial well-being of the School and the Center. This was not only because Graham’s artistic vision was threatened by Protas’s control of her works, but also because there were several potential donors who proposed large donations contingent upon Protas’s removal.^[30] On an even more practical level, in 2000, the dancers of the Martha Graham Dance Company boycotted performances of Graham’s work and encouraged dancers throughout the world to do the same, in an effort to wrest control of the Martha Graham Dance Center from Ron Protas. Finally, the Center’s board took a stand against Protas, in recognition of the immediate financial and artistic risk that he created. Dismissing Protas’s proposal to remain artistic director, on March 23, 2000 the Board approved a motion to remove him.^[31] The dancers and board members had finally begun to take control of Graham’s legacy.

However, many argued that this effort was too little, too late.^[32] Shortly after Protas’s removal, the Center’s Board voted to suspend operations because of financial problems, including the Center’s inability to pay its rent and meet payroll. Protas promptly terminated the license agreement with the Trust on May 26, 2000, since the School and the Center were required to have “continuing operations” in order for it to remain effective.^[33] The termination of this agreement was meant to restrict to Center’s use of Graham’s name and technique as a consequence for diminishing Protas’s involvement. The legal agreement that had once granted the Center permission to use Graham’s ballets was now being used against the Center to restrict its use of the ballets.^[34] Although the Center was finally challenging Protas’s usurpation of Graham’s legacy, the focus of this legacy had already shifted from her artistic genius to a petty battle over ownership rights.

Protas responded to the Center’s resistance by founding the Martha Graham School and Dance Foundation, a not-for-profit corporation organized under Delaware law.^[35] No longer the company’s artistic director, Protas sought to exert his sole authority over the rights to Martha Graham’s name and technique by creating this foundation. Judge Cedarbaum contested the legality of Protas’s motion, declaring:

If by registering Martha Graham’s name in connection with educational services, Protas sought the ability to preclude the Center and the School from using Martha Graham’s name, he was seeking to undermine the arrangements of Martha Graham with respect to the use of her name.^[36]

Despite Protas’s efforts to maintain exclusive control over Martha Graham’s legacy, the School and Center received enough funding upon Protas’s removal to acquire a long-term lease to their former premises as well as a grant to renovate of the Center and School premises. Had the Center been more legally savvy, however, they would have thought sooner about the validity of Protas’s trademarking of Graham’s name and technique, and the extent of Protas’s ownership rights. On January 16, 2001 the School reopened, but the legal battles for the Martha Graham Dance Company had only just begun.^[37]

Upon the re-opening of the School in 2001, the Center received a cease and desist order forbidding use of the trademarks “Martha Graham” and “Martha Graham Technique.” This final straw prompted Marvin Preston, the company’s executive director, to question the scope of Protas’s ownership, an action that should have been taken immediately after Graham’s death. Preston believed that Protas did not own as much as he claimed to. Beyond questions of ownership, however, lie questions of the intent of trademark. On the first day of the Graham v Graham 1 trial, Cynthia Parker Kaback, who had been hired by Protas in 1973 as the company’s manager, was questioned on her previous experiences related to the Martha Graham technique. She stated,

Occasionally there would be unauthorized people that would be advertising that they were teaching Graham technique. And everyone would be very concerned because we wanted to protect the integrity and reputation of that name.^[38]

This desire to protect Graham’s technique is a far cry from Protas’s denying Graham dancers of the right to perform her dances. As Stuart Hodes noted, the purpose of attempting to trademark the technique and training students to be accredited to teach that technique was “to attract good students, train capable teachers, and generate tuition,” not to deny others the right of practicing the Graham technique.^[39] As it turns out, Protas’s mere intentions could be used against him in a court of law. Since his actions were proven not to be in the interest of the legacy he had supposedly inherited, none of them were legal. As the Center gained footing in their legal fight against Protas, it became clear how flawed its initial acceptance of Protas’s authority had been, and in its underestimation of what the law could do to destroy as well as support them.

Copyright and Ownership Dispute

Just as Protas had attempted to restrict the use of the Graham technique by trademarking Martha Graham’s name and technique and creating the Martha Graham Trust and Foundation, he attempted to restrict the Center’s use of works that had been created for the Center. “What property did Martha Graham, the great dancer, choreographer, and teacher own at the time of her death in 1991? That is the central question in the second phase of this lawsuit,” opens Judge Cedarbaum’s opinion of the 2002 Graham case.^[40] Having settled problems of trademarking, Protas then sued for ownership rights over the dances performed by MGDC after his departure as artistic director. In July of 2000, Protas began to apply for copyright protection for the seventy dances Graham had produced in her lifetime. Assuming that Graham owned her own dances at the time of her death, Protas argued that he had exclusive rights over their ownership and performance.^[41] So ensued the second, more pivotal case related to the legal protection of dances.

Protas would not have been able to copyright Graham’s dances had it not been for the precedent set by Hanya Holm in 1952, when she secured the first American choreographic copyright for her dances in Kiss Me Kate (1947). Wanting the same rights to protection as were available to writers and musicians, Holm had a microfilm of her choreography for Kiss Me Kate written in Labannotation and sent it along with the appropriate copyright application to the Copyright Office in Washington.^[42] It was eventually registered as a dramatic-musical composition. Critic John Martin excitedly explained in the New York Times on March 30, 1952:

The importance of this development is manifold. For one thing, of course, it gives official recognition to the dance creator as such, which is at least a small step toward the dignity to which he is entitled. For another thing, it provides tangible evidence of the practicability of dance notation….For a third thing, it lays the ground for that happy day in time to come when there will be an available literature of dance compositions…for future generations to study and consult.^[43]

It is clear from this article that the copyrighting of Hanya Holm’s dance was significant on two fronts: one, dance should be legally on par with other arts such as music or writing and two, this equality stemmed from the ability to provide tangible evidence of the dance through notation. Labanotation, a notation system published by Rudolf Laban in 1928 in Kinetographie Laban, was the key to presenting the Copyright Office with a material version of the work to be copyrighted.

There are a number of limitations to the grandeur of success often attributed to Hanya Holm’s copyright application, and to the notation systems utilized by choreographers in effort to eternally preserve their works. First, the dance had to be considered a dramatic-musical composition in order for it to be copyrightable. In the 1950s, choreographic copyright as a legally enforceable idea did not exist, so Holm had to protect her dance by making her dance a piece of, rather than on par with, dramas. Second, the dance could be copyrighted because it was published as part of Kiss Me Kate. Under the Copyright Act of 1908, if a work was already published, all it required was the affixing of a copyright notice for it to attain protection.^[44] The legal ground this case gained was minimal, in that the Holm’s copyright did not demand a new precedent be set since it applied under the Copyright Act of 1908. Lastly, what John Martin’s article ignores in its celebration of the potential for dance scholarship, are the limits to the reading of Labanotation. As a written language, it is complicated for even the best-educated specialists. This case of the 1950s, in sum, begged for an evolved perception of what constituted a fixed medium of dance. The Copyright Act of 1976 would legalize the use of video in copyright applications, but the complicated relationship between preservation and copyright would not be resolved. The precedent set by Hanya Holm in terms of publishing, preserving, and copyrighting remained at the crux of many issues surrounding Martha Graham’s legacy.

Martha Graham’s dances are predominantly maintained in fixed mediums by video, but they cannot avoid the same issues of artistic authenticity as systems of written notation, such as Labannotation. As any experienced dancer can attest, video and notated forms of dances can only be used as a prerequisite for copyright application and a guide to understanding the kinesthetic basics of a dance work; it cannot be used as an exclusive manner of preservation. What is lost in the copyrightable versions of dances is the intention behind each movement and the various decisions the dancer is allowed to make regarding the choreography each time it is performed. Only a dancer who has embodied the choreography, or a person who was privy to the choreographer’s creation of a work, have the ability to flesh out the structural bones of a video or a notated score. So although, according to the Copyright Act of 1976, these fixed forms of dances made choreographic copyright legitimate, one cannot have unreasonable expectations regarding the ability of the copyrighted form of a dance to ensure its preservation. In terms of preservation, memory and personal experience match the value of the copyrightable fixed medium of a dance. What makes a dance copyrightable does not necessarily guarantee the preservation of a dance in its ideal form.

While there is much to be drawn from this case about the moral and artistic aspects of copyright law, the decision hinged on legal stipulations of the Copyright Act of 1976 and the incorporation of the Center in 1948. Although factually tedious, it is important to understand the decision in its entirety in order to discuss what may be drawn from it. Martha Graham had produced seventy dances that were fixed in a tangible means of expression. Thirty-four of the seventy dances were created after 1956, when Graham was technically employed by the Martha Graham Center of Contemporary Dance Inc. and the Martha Graham School for Contemporary Dance Inc. Prior to 1956, Martha Graham had been the sole proprietor of her own school since 1930. The Center and the School had been incorporated in 1948 and 1956 respectively, under the New York Membership Corporation Law (now the Not-for-Profit Corporation Law). Graham sat as artistic director and was a board member for the Center and the School until her death. She consented to the incorporation of the Center and the use of her name in the corporate title to avoid being subject to ordinary tax income. She also was given a salary by the Center and the School after 1956 for the dances she created, and was named artistic director by the School, effectively making her an employee.^[45] In short, she transferred her name and her artistic rights to a corporation because along with those rights came pecuniary obligation. As Judge Cedarbaum states, “Concerned with the “foster[ing] of the creative impulse and its needs,” Graham recognized that “[she] could never have done what [she did] if [she] had not had such a place.”^[46] By splitting up her property into different legal entities, Graham was only acting in the interest of her art and her financial stability, a model for any contemporary choreographer. However, because these divisions of Martha Graham’s name and property caused practical complications in terms of ownership rights Graham should have clarified the terms of ownership in her will and in the contracts that were drawn with the Center for her choreography. It is this shortcoming that must be noted and taken into account when choreographers decide to incorporate their company and copyright their dances.

To further complicate matters, nineteen of the thirty four post-1956 ballets fell under the copyright legislation of the Copyright Act of 1909, while the remaining fifteen post-1956 ballets were covered by the Copyright Act of 1976. As Julie C. Van Camp emphasizes in her essay “Martha Graham’s Legal Legacy,” there are two sets of date restrictions that are vital to understanding the Graham case. One set of dates are the pre- and post- 1956 ballets, relating to Graham’s ownership of the ballets. The other set of dates are the pre-1976, post-1956 ballets, relating to contemporary copyright legislation.^[47] As the decision recognizes, these two factors complicated the ruling, but emphasized the importance of regarding just how significantly corporations and copyright can affect the future of a dance.

Protas argued in the 2002 case that he, as legatee and trustee of the Martha Graham Trust (which he had created), was entitled to all of the seventy dances created during Martha Graham’s lifetime. Protas assumed that Graham owned her dances at the time of her death, and as sole executor, that they should be granted to him, not the Center. In 1974, however, Edmund Pease, treasurer and a member of the Center’s board of directors, had performed a thorough study of the Center and Graham’s assets in order to determine exactly what belonged to whom. He revealed in his report that the “Center’s assets included the dances, sets, costumes, and included that these items be carried on the Center’s balance sheet as assets at nominal value.” Furthermore, Jeanette Roosevelt, a board member of the Center and founder of the Barnard College Dance Department,^[48] testified that Graham “gave” her works to the Center, stating, “whenever dances were created, they would become works that the board was responsible for.”^[49] Martha Graham herself approved this report, and Francis Mason, Chairman of the Center’s board of directors at that time, testified to the board’s approval of the report.^[50] Therefore, had the Graham dancers and board members questioned Protas’s authority as soon as Martha Graham died and sought out Pease’s report to support their claims, they would have had credible grounds on which to debunk Protas’s allegations of authority.

From Protas’s copyright application to his shifty disposition during his court testimony, there was doubt about his credibility. Because of his “evasive and inconsistent testimony and…demeanor,” Judge Cedarbaum did not consider him a credible witness.[51] The inconsistencies in his testimony, his application for trademarks, and his applications for copyright strengthened the legal argument against him.^[52] As a director, Protas was judged not to have acted in the interest of the Center, his primary obligation. Judge Cedarbaum ruled that “By representing to the defendants that he “owned everything,” Protas violated his duty of good faith and profited improperly at defendants’ expense” and that as “a longstanding fiduciary of the Center,” he “enriched [himself] unjustly by grasping” what did not belong to him.”^[53] Protas simultaneously threatened Graham’s legacy and gave the Center legal grounding in its case against him.[54]

Judge Cedarbaum ruled in 2002 that the post-1956, post-1976 ballets were neither Martha Graham’s nor Ron Protas’s. They were the property of the Center and thus considered “works for hire,”^[55] produced by Martha Graham for a corporation.^[56] Categorizing Graham’s dances as “works for hire,” meant that Martha Graham did not own her own artistic creations at the time of her death. Instead they were owned by the corporation she had created in her name in 1956 and which had paid her a salary to create works. In effect, in order to restore the Center’s hopes for survival, Judge Cedarbaum was left to rule against Protas as well as against the inherent ownership rights of choreographers. Sixteen Graham dances were published before 1956, and ten of those were published before January 1, 1964. The Copyright Act of 1909 governs those ten works, and in the absence of any copyright renewal applications those ten works, including Appalachian Spring, were released into the public domain.^[57] In an appeal to this already drawn out trial, nine dances that had been proven not to be owned by Protas or the Center, were determined to belong to the Center. While the legal lines remained blurry, the Center was shown to have the potential to prove the ownership of nine of Graham’s cherished dances, and fell short in even realizing they had this capability.

The Martha Graham Center of Contemporary Dance was not able to assert full ownership rights over all of Graham’s dances. Ten iconic dances were released to the public domain, which meant that they could be staged and performed by anyone. Even those dances that are legally protected, however, are subject to inevitable evolution. Problems regarding authenticity include: who has the right to adapt a dance, whose version of the dance is notated and performed after the death of the choreographer, and what the intention behind a given movement is supposed to be. Copyright cannot answer these questions; it cannot make a dance authentic. In fact, Graham scholar Victoria Geduld argues that authenticity in dance does not exist.^[58] It is important, then, that artists do not exaggerate the ability of copyright to preserve a dance in a given form. Rather, they must take their own initiative to make sure their dances are passed down through generations of dancers who have embodied the dance in its proper form. At the same time there must be room for evolution and error, in hopes that great performances will stand above the rest.

The Graham v Graham 2 decision changed the contemporary dance field, and heralded a new sense of vitality in the legal protection of dances. Although the dances were judged not to belong to Protas, they were also judged not to belong to their creator. While no dance is guaranteed a successful future, Protas threatened such an important legacy and such a vast body of work that it made the dance community takes note of the necessity to utilize the law in its favor. As Holm and Fuller’s cases emphasize, however, there are shortcomings to choreographic copyright protections, especially in regards to preservation. Authenticity, quality, and intent might only to be ensured by the people who devoted themselves to a specific choreographer’s craft. So with the close of the second phase of the Graham trial, the securing of artistic rights beckoned choreographers.

Aftereffects of the Graham Trials

As Norton Owen, member of the board of the Dance Heritage Coalition and director of the Jacob’s Pillow Archives, points out, Martha Graham can only be considered an example of American choreographic copyright if two variables are taken into consideration. Ron Protas is the first; Martha Graham’s flimsy last will is the second.^[59] It took over fifty years, a celebrated choreographer, a power-hungry heir, and two court cases to instill in the dance community a sense of urgency about how the law can influence dance. If it were not for a combination of these factors, the Martha Graham Dance Company would not have raised the issues of ownership right protection and choreographic preservation for an entire generation of senior American choreographers.

One of the primary concerns and criticisms of Judge Cedarbaum’s decision was that, while it acted in support of the future of MGDC, it limited the rights of choreographers by asserting that Graham did not own her own dances at the time of her death. If Ron Protas had not been involved, a different precedent might have been set. However, it was the changing of the precedent in Judge Cedarbaum’s opinion that made choreographers scramble to understand the law and take measures to protect themselves. With this improved legal awareness, it did not take long for the issue of the rights of choreographers to be addressed. Katherine Forrest, litigator of Cravath, Swaine, and Moore LLP, who had represented the Martha Graham Center for Contemporary Dance in Graham v Graham, made it her mission to repair the precedent set by the Graham decision while not attempting to overturn Judge Cedarbaum’s ruling, which had been tailored to the specific issues of MGDC.^[60]

The case that provided the legal platform for this revision was one involving the New Dance Group (NDG), a New York City dance organization founded by students of Hanya Holm in 1932. Choreographers including Sophie Maslow, Anna Sokolow, and Jane Dudley, who all danced for Martha Graham, made socially engaged works for the group during its formative years.^[61] In 2007, Rick Schussel, the executive director of the NDG, used Judge Cedarbaum’s decision in Graham v Graham 2 to mount his campaign for a seventy-fifth anniversary gala celebration of the NDG that would include performances of Harmonica Breakdown (1938) and Time is Money (1934) by Jane Dudley, and Folksay (1942) by Sophie Maslow. He argued that since independent choreographers had made these dances for NDG, the dances were “works for hire” and owned by the corporation. Abigail Blatt, Sophie Maslow’s daughter and a lawyer at Paul Weiss LLC, and Thomas D. Hurwitz, Jane Dudley’s son, sought the rights to protect their mothers’ legacies by ensuring that they could decide when and where their mothers’ dances could be performed. The issues raised in Graham v Graham 2 were once again at the forefront of the discussion surrounding this 2007 case. As Daniel J. Wakin’s September 4, 2007 article about the NDG case in the New York Times notes, “The movement of limbs and bodies is notoriously tricky to represent after the fact.” What was at stake was not only “limbs and bodies,” however, but an artistic legacy as important as Graham’s, and not yet tarnished by a man like Ron Protas.^[62]

The plaintiffs argued that the anniversary celebration performances had the potential to cause “irreparable devaluation of the work and serious and irreparable damage to the artistic reputations of Ms. Dudley, Ms. Maslow, and Ms. Anthony.”^[63] So, hiring Katherine Forrest, they wrote a cease-and-desist letter to Rick Schussel.^[64] His lawyer, John R. Sachs Jr., asserted that since “[t]hese choreographers were closely associated with the company as employees or board members and were doing the choreography under the auspices of the New Dance Group,” NDG owned the dances.^[65] However, since the choreographers were never paid for their work with the New Dance Group, their dances had been willed to their children, and those children had their only interest in holding their mothers’ works to high standards, the works were deemed not to be “works for hire.” Performances of the works by Jane Dudley and Sophie Maslow were canceled days before the anniversary gala. Although this case drew less public attention, required less time, and involved a much less artistically significant repertory than Graham v Graham 2, it effectively reversed the Graham precedent by granting choreographers implied ownership rights to their work. ^[66]

Judge Cedarbaum judged Graham v Graham appropriately, then, effectively resolving the struggles of MGDC, as well as invigorating artists and lawyers to set a new case law precedent that rules in favor of artistic ownership rights. While it was less than inspirational to hear that Martha Graham did not own her dances, the decision was the catalyst for the creation of precedent in favor of the rights of artists. The arts community must be thankful to Graham v Graham for prompting this discussion, and to the New Dance Group case for creating an artistically beneficial legal precedent.

Choreographic Copyright Today

Graham v Graham 2 caused a sea change in the attitude of choreographers toward copyright protection. In the decade since the decision was written, there have been many instances of the case’s direct effect on the desire of choreographers using the law to protect their legacies.[67] For choreographers to protect their ownership rights, very few steps must be taken. The process of applying for a copyright is simple: have the dance notated by the Dance Notation Bureau or video record the dance, and then send in a copyright application along with the fixed form of the dance to the Copyright Office in Washington D.C. The process of ensuring that the choreographer maintains his/her ownership rights to a dance that is created for dancers of a not-for-profit corporation is equally straightforward: write a contract that stipulates the terms of use of the dance, as well as the ownership rights to the dance. Finally, to ensure that an heir does not threaten an artistic legacy and to provide support in preservation efforts, create a trust comprised of dancers, lawyers, donors, and advisors who will all act to protect the choreographer’s artistic vision and work. Although the quality of performance of a dance cannot be guaranteed, there is no sound reason not to take the appropriate steps to prevent avoidable choreographic catastrophes. The future is impossible to predict, but personal and legal motions made to ensure its success can help shape it. Although “our art does not chip,” we must help it live on through the bodies and memories of those who appreciate it. Using copyright to restrict dances, or discontinuing performance of them for fear of deterioration are actions neither necessary, nor beneficial to choreographers and dance audiences.

With the precedent set by the NDG case, which granted choreographers the same inherent rights as all other artists, dancers can now act to ensure that their artistic voices can be heard for generations to come. As Judge Cedarbaum asked, “Does not everyone want to become immortal?” There are legal provisions that assist in the immortalization of this generation of choreographic legacies; Graham v Graham heralded an understanding and application of these provisions to choreography. Copyright law and choreography share a common goal: creation. Copyright law exists to encourage creative works, and choreographers exist to create new dances. As long as these two fields maintain this mutual mission, they can and should work in tandem to promote productive contributions to society. It is now the responsibility of artists to know the law and use it in their favor, if they expect to benefit from its protections. Otherwise, not only will the strife of the MGDC have been in vain, but the legal ground generations of choreographers have gained will be torn from beneath our dancing feet.