York manufacturer of fine dance apparel for women and girls. Click
here to see a sample of our products and a list of web sites
With Body Wrappers it's always performance
at its best.
Go back to Flash Reviews
Flash News & Analysis, 4-18: Smoking
Guns & Low Blows
At Graham Trial, Truth is Outing
"The new corporation purchased on
12/1/56 the existing school of dance which Martha Graham had been carrying on.
The corporation agreed to pay Ms. Graham $50,000, and Ms. Graham agreed not to
permit the use of her name...in connection with any other school or company."
--Louis Goodkind, attorney for the
Martha Graham Foundation, in a 1957 letter to the Internal Revenue Service
"This is a tremendous New York City-based
institution that we believe is the true owner of the rights."
--Marla Simpson, assistant attorney
general, the State of New York
By Paul Ben-Itzak
Copyright 2001 The Dance Insider
Dancers and choreographers, themselves
with little financial resources, have often relied on the kindness of strangers:
Doctors, dentists, lawyers, publicists, chiropractors, psychotherapists and accountants
willing to provide free or discounted services to support the arts. One such unsung
hero is Rubin Gorewitz, accountant to Merce Cunningham, Katherine Dunham, Paul
Taylor, Alvin Ailey, Twyla Tharp, Jasper Johns, Robert Rauschenberg -- and Martha
Graham. On Tuesday in a Manhattan courtroom, 45 years after he helped Graham ease
her personal tax burden by convincing her to sell her school to a new not-for-profit
Martha Graham School, in the process giving it exclusive educational rights to
her name, Gorewitz returned to help the school hold onto that name.
Graham's other heir, Ron Protas,
is suing the Martha Graham School of Contemporary Dance and the Martha Graham
Center in Federal court, seeking an injunction to prevent the two entities from
using the name Martha Graham, or advertising that they teach the Martha Graham
technique. Both the name and the name with the technique, Protas argues, were
registered as trade or service marks several years ago, with Protas claiming ownership.
But the case had no sooner gone to
trial when, on March 23, Center and School lawyers dropped a bombshell: They'd
found evidence which, they said, showed that in 1956 Graham, for tax purposes,
sold the school, which she had owned, to a new not-for-profit Martha Graham School
of Contemporary Dance, granting it, among other things, the right to use her name
exclusively among educational institutions. Thus, they argue, Protas did not have
the right to register trademarks for a name or technique he did not exclusively
own; furthermore, they contend, he was remiss to the point of "fraudulence" in
ignoring a Graham estate lawyer's advice that he investigate the ownership question.
Protas has declined to comment at
all to The Dance Insider. Graham's will leaves him everything
she owns, but the will is rather vague as to exactly what that is.
In their own investigations -- particularly
in looking through a warehouse of Graham records -- center and school lawyers
have been unable to turn up the actual purchase agreement selling the school to
the new not-for-profit. However, they have found other evidence, including an
unsigned 1956 application for tax-exempt status and Gorewitz, who they called
Tuesday to authenticate the application and testify that he had in fact recommended
In 1956, Gorewtiz testified, Robert
Dunn, a pianist for Merce Cunningham for whom he prepared taxes and who also played
for Martha Graham's classes, introduced him to Graham. "She had some tax problems,
(and) had to raise $2,000 to pay taxes," Gorewitz, looking smart in a silver-gray
suit, striped white shirt and bow-tie, recounted. "There were a lot of expenses.
She had failed to deduct, and (wanted) to be able to reduce her tax liability."
Gorewitz found enough deductions
for Graham -- on traveling expenses, costumes, and other dance clothing -- that,
he says, "She was very pleased with the return. It was audited and accepted as
filed, and her tax was reduced substantially."
So, Gorewitz said, "She...asked me
what I could do to help with the school, because it was running into difficulties
and had difficulty making ends meet. I told her she should sell the school to
the Martha Graham School of Contemporary Dance, a tax-exempt foundation we would
set up. There would be less tax consequences to her personally."
Here Judge Miriam Goldman Cedarbaum
interjected, "If she transferred the school to a not-for-profit foundation, the
foundation would become (the owner), and therefore fund all of the necessary financing
of the salary and operating expenses of the school?"
"Exactly," answered Gorewitz.
"Did she proceed with the sale?"
continued Marla Simpson, the assistant New York State attorney general who questioned
the CPA for the Defense. (The charities department of the AG's office has intervened
as a defendant, Simpson later told The Dance Insider, because "this is a tremendous
New York City-based institution that we believe is the true owner of the rights...
The attorney general has a statutory and historic mandate to protect the rights
of charitable institutions.")
"Yes," Gorewitz answered. "I structured
an outline of how it would take place."
Gorewitz identified the tax exemption
request, IRS form 1023, that the Graham school had filed in 1956. When Protas
lawyer James McGuire later pointed out that the document was not signed, Gorewitz
insisted that the application actually sent would have had similar language.
Simpson also introduced a series
of documents including tax returns for the school from the 1950s and 1960s, board
meeting minutes which referenced the school's still owing Graham payments on the
purchase price, and annual reports. The annual report for 1966, and minutes from
1967, as read by Gorewitz, indicate that the school at those points still owed
$15,550 to Graham on the purchase.
Simpson concluded her examination
by eliciting, from Gorewitz, that he had plead guilty several years ago to one
charge of conspiracy to conceal income, that he had served his sentence, that
he was currently a CPA in good standing, and that this matter -- whose basis appears
to have been some ill-advised advice Gorewitz gave to an artist friend, and did
not involve the CPA's actually signing a return -- is unrelated to his work for
McGuire, his efforts at assailing
that work apparently frustrated, tried to draw Gorewitz out on the subject of
the conspiracy charge. The judge let this continue for a while, until finally
telling the Protas attorney that all that was really relevant to the proceeding
was the one charge to which Gorewitz had admitted, and that he'd made his point
regarding possible questions of credibility.
The other bombshell entered into
evidence Tuesday by the Graham attorneys was a 1957 letter from then-Graham attorney
Louis Goodkind to the IRS, supporting the tax-exempt status of the new not-for-profit
As quoted by Graham attorney Dale
M. Cendali, Goodkind, responding to a letter from the IRS expressing skepticism
about the application, answered that "the new corporation purchased on 12/1/56
the existing School of Dance which Martha Graham had been carrying on." The corporation
agreed to pay Graham $50,000, and "Ms. Graham agreed not to permit the use of
her name...in connection with any other school or company." She also, the letter
as quoted by Cendali says, granted to the school almost all of her theatrical
properties, including sets by Isamu Noguchi from 16 dance-dramas, and various
equipment and costumes.
When McGuire argued that the letter
was not admissible because it was an "unsigned, un-notarized document," the judge
didn't buy it. The absence of any more witnesses from 1956, she explained, gives
paper documents an added value.
The Goodkind letter, she explained,
"shows the nature of the information conveyed to the IRS that ultimately resulted
in the exemption of this organization. In the context of this case, this document
has many indicia of reliability. At the moment I (am not considering) it as evidence
for ownership of the Noguchi sets; that's for another day. I will deny your motion
to exclude this as evidence Martha Graham sold her individual proprietorship to
the Martha Graham School, to a not-for-profit corporation, incorporated in New
York State: the Martha Graham School of Contemporary Dance. This is evidence that
she transferred the name the Martha Graham School of Contemporary Dance to a corporation
for a school that taught what her school taught: the Martha Graham Technique."
As well, the judge noted, the letter
is an "effort to persuade the IRS that dance is an educational service...that
contemporary dance is one of the major performing arts, and of the importance
of training in contemporary dance education."
Tuesday's events also included the
testimony of Scott Martin, the lawyer who filed the trademark registrations for
the terms "Martha Graham" and "Martha Graham technique" several years ago. Martin,
who appeared tie- and jacket-less, got off to a bad start, the Judge admonishing
him, "So you are a litigator. Do you normally dress down in court?" By the time
he returned to be cross-examined after lunch, he was sporting a smart jacket and
The cross-examination by Defense
lawyer Victor A. Kovner, representing longtime Graham board chair Judith Schlosser,
center executive director Marvin Preston IV, and others, was brief. Kovner later
pointed out that the Defense's charges of fraud do not apply to the lawyers who
registered the trademark, but to Protas, for representing that he owned it.
"This plaintiff," Kovner said, referring
to Protas, "was advised on more than one occasion by lawyers who represented the
estate of Martha Graham to conduct an investigation into what he had actually
inherited. I think the record will show that he withheld questions by his counsel...."
which lead to "material misrepresentations made by Mr. Protas to the patent office.
And I think the record will show that they were knowingly fraudulent."
Protas, as noted, has refused to
comment to The Dance Insider. However, that does not mean he was not heard from
Tuesday in court.
Egon Dumler, whom Protas hired in
February 1999 to continue negotiations for a licensing agreement of the Graham
ballets with the center, read a memo from Protas written during the negotiations.
The memo, Dumler read, outlines new points Protas wanted to raise, and includes
this Protas comment: "One does not have to be Wittgenstein to believe I am in
negotiation with a hostile group of people."
back to Flash Reviews