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Flash News and Analysis, 4-24: Purchase Agreement to the World
Errand Into the Graham Legal Maze

"The position of the parties is constantly changing."

--Federal Judge Miriam Goldman Cedarbaum

"The Graham technique is definitely being worked on every day, and it's evolving NOW."

--Rachel Grisi, Member, Martha Graham Ensemble

By Paul Ben-Itzak
Copyright 2001 The Dance Insider

As the lawyer who registered "Martha Graham" and "Martha Graham technique" as trademarks for Ron Protas recalled how he had investigated Protas's claim mostly by talking to Protas, Federal Judge Miriam Goldman Cedarbaum interrupted.

"Did you ask Mr. Protas if he was a dancer?"

"I don't think so," Michael Quinn answered.

It was one more example of how Cedarbaum has been able to see through mountains of documents and lots of lawyerly testimony to the core issues of Graham v. Graham. When both sides rested their cases Wednesday, despite her request for written summations by May 7, one had to wonder whether the judge, who has kept on top of the shifting parameters of the case perhaps better than the attorneys, needed any more help from them.

Protas is suing the Martha Graham Center for Contemporary Dance and the Martha Graham School of Contemporary Dance to stop them from using the phrases "Martha Graham" and "Martha Graham technique." When Graham died in 1991, she left Protas everything she owned.

On March 23, lawyers for Defense introduced evidence that Graham did not exclusively own her name, having granted the school permission to use it in 1956 when she turned over her sole proprietary interest to the new not-for-profit school. In patenting "Martha Graham" and "Martha Graham technique," they charge, Protas acted fraudulently because he didn't own them. Protas lawyer James McGuire has countered that the center/school gave up its claim to the name when it signed a broad licensing agreement with Protas in 1999.

Presiding over what she called an "unusual" case in which the very points of debate have morphed in just three weeks, the judge, who has often seemed to deduce the essential facts quicker than either side, sought last week to get both to narrow their arguments.

The central questions, Cedarbaum said, are 1), "Whether somebody can register a trademark he doesn't own," and 2), "Whether the person who owns it can lose it by signing a license agreement."

"Those are the critical issues," she said, "(on which) I would like to get your best law on the subject, because it is an unusual question. I want focused attention...as opposed to general legal points.... There has been a lot of shooting form the hip; the time has come to focus. I would like both sides to think through what you're doing here, and whether what you are doing here makes sense." After reviewing the written summations, she said, she will consider whether to invite oral ones.

"The legal significance of this license agreement is a matter of considerable importance," the judge pointed out, "and I would like to be sure I have everybody's best legal positions." She added: "There is substantial evidence of the purchase agreement, which is harder to doubt on the basis of evidence." Earlier, she admonished both sides, "I don't need rhetoric. What I would like to see is if there are any cases that come close to this case."

Last week, in lieu of case law both sides analyzed the minutiae of how the license agreement evolved, with center/school attorneys finding flaws in the process, and McGuire trying to defend that process. The license agreement, signed in July 1999, set out an arrangement by which Protas would step down as artistic director of the center and, as executor of the Martha Graham Trust, license the use of the Martha Graham name and her ballets to the company and school, though not exclusively. In return, the center and school would grant Protas various rights and privileges, including artistic input and per diem when he joined the company on tour so he could evaluate it.

In March of last year, it all fell apart, with both sides eventually accusing the other of not living up to the terms, and the company ultimately suspending operations in late May, citing financial problems. Less clear is how and whether those financial problems are related to Protas, although the center has argued that some funders were less likely to donate money if Protas didn't depart.

That question -- did Protas refuse to step down to save the company, or did the company remove him as artistic director to save the company? -- surfaced again Wednesday during the testimony of Quinn, a lawyer who represented Protas in the trademark registration and during part of the license agreement negotiations.

Quinn, under questioning by Defense attorney Victor Kovner, said Protas told him he changed his mind in March 2000 on Janet Eilber's suitability to replace him as artistic director partly for artistic reasons, including that she wanted to alter Martha Graham's ballets.

"He had spoken with Ms. Eilber about her plans," recalled Quinn, adding that Protas told him, "she was going to update work, put new ending(s) on it. His primary concern was that she could (not) run the organization from 3,000 miles away."

Eilber, contacted by The Dance Insider, vigorously denied that she planned to alter Graham's work.

"I never had any intention of changing a step of Martha's work," she insisted via e-mail. "If anything, the interviews I'm conducting for the Library of Congress with former Graham artists only underscore and increase my commitment to honoring Martha Graham's original intentions."

Protas has also claimed that he changed his mind about stepping down, as he'd promised to do by last summer, after Eilber hesitated about moving to New York to take up the position. Explaining the situation now, Eilber said, "My family was fully prepared to do that not only in the summer of 2000, but originally I was supposed to move in the summer of '99. On both occasions, it was clear that the institution was not stable enough to need me. They may have guaranteed my salary, but I would not have had a company to direct. This is entirely because the funding community could smell the fact that Ron had no intention of stepping aside."

In other words, the opposing recollections of the circumstances have become a chicken-and-egg question: Did Protas refuse to step aside, because, as Quinn contended on the witness stand last week, "he had serious reservations about having a major dance organization attempting to be run from 3,000 miles away"? Or, was it fear that Protas would not step down that, in turn, made it harder to attract the funds necessary to stabilize the company, and thus assure Eilber that there would be a working company for her direct once she made the move?

Kovner also sought to cast doubt on the license agreement by painting Quinn as a tainted participant. Even though he was representing Protas officially, Kovner argued, evidence showed that he had on occasion also represented the center, or at least represented himself to represent the center and school.

For one thing, Kovner suggested based on previous testimony by another lawyer with Quinn's firm that when Quinn filed the trademark registration for Protas, it may have actually been the Graham/Center that was the client of record for Quinn's then-law firm, Cahill-Gordon, and thus in filing the trademark registration Quinn was acting against his real client's interests. Second, Quinn, albeit at Protas's request, interceded in at least two matters where he was clearly representing the center/school's interests more than Protas's: A controversy with the children of the late Barbara Morgan regarding rights to use Morgan's photos of Graham; and a perceived challenge to the school when two longtime teachers, including former school director Diane Gray, left the school and indicated they were going to start their own institution.

Also at issue is the role in the brokering of the license agreement of Todd Dellinger, the center's former executive director. The judge in particular has constantly sought to clarify Dellinger's relation to the center/school, on the one hand, and Protas, on the other.

In negotiating the licence agreement, it appears that Dellinger was the main party Quinn dealt with from the center/school, even though lawyer Robert Solomon was also involved, and even though Quinn insists that Dellinger was just "the scribe," i.e. the person in whose computer the document was kept. Kovner, aided by the incisive questioning of the judge, has tried to show that in the negotiations, the Graham side was not equally represented. Dellinger, while working for the center, would eventually be employed by the Martha Graham Trust to be set up by Protas to license the ballets, a fact of which, Kovner argued, Quinn should have been aware because it was mentioned in a 1997 letter from Protas. Meanwhile, Kovner also produced a copy of a key letter regarding the agreement, indicating that copies had been sent to Dellinger, but not to Solomon, even though Solomon was the center's attorney of record.

Kovner also produced a letter from Dellinger to Quinn in which the former stated, "I am increasingly concerned that it not look like I am lobbying for Ron's position. I just think it should appear this is coming from you directly." "Wasn't it clear," Kovner then asked, that "Mr. Dellinger was doing everything to assist Mr. Protas?"

Answered Quinn: "This reflects to me an anxiousness by an executive of the center to get this agreement done."

Dellinger is named in Protas's suit as a defendant.

Finally Wednesday, after both sides had concluded arguments, McGuire suddenly attempted to introduce into the record several documents which the other side had not seen, in violation of an agreement.

Center attorney Dale M. Cendali shot up. "I object strenuously," she said, clenching and unclenching her fist by her side. "These have not been produced to us.... I'm being handed these documents for the first time, and I don't think that's fair."

The judge immediately admonished McGuire, "I directed that both sides, at least 24 hours (prior), identify witnesses and documents they're going to be offering, and show them to the other side. Why was this not done?"

McGuire's answer, a little hard to follow, apparently had to do with a claim that the documents came in part or in whole from the Library of Congress. The documents, he said, established that Martha Graham had used the words "Martha Graham technique" publicly as early as 1936.

On McGuire's objection, Cedarbaum had earlier declined to immediately admit Defense documents meant to establish the wide public use of the terms "Martha Graham" and "Martha Graham" technique, chiefly in dancer program biographies and newspaper articles.

"On your objection," she pointed out to McGuire, "I kept out the bulk of (those) documents. I will take the others and I will take these for what they're worth. I don't think they're worth a (great) amount."

As the trial recessed, one thing remained clear to Rachel Grisi, a dancer with the Martha Graham Ensemble: "The school is totally running. We go to class. So the Graham technique is definitely being worked on every day, and it's evolving NOW. I'm now in a school that shouldn't exist. Most people have faith that it will survive -- it's not going to die because too many people are passionate about it."

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