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Flash News, 8-14: The Graham Ruling
Reasons and Reactions
By Darrah Carr
Copyright 2001 Darrah Carr
Though it rained heavily in Manhattan
last Friday afternoon, the atmosphere inside the Martha Graham School of Contemporary
Dance was sunnier than it had been in months. "We're out from under a cloud, a
malignant cloud," explained Stuart Hodes, Head of School, "A dark force existed
and it suddenly appears to no longer exist." Hodes was speaking about the initial
outcome of a lawsuit brought against both the Martha Graham School and the Martha
Graham Center of Contemporary Dance by Ron Protas, sole heir to Martha Graham,
as well as the artistic director of the Martha Graham Trust. The lawsuit, filed
last January, challenged the School and Center's right to use Graham's name to
describe themselves and the technique that they teach. Protas cited trademark
infringement, among other claims, because he had been granted trademark registration
for "Martha Graham" and "Martha Graham Technique" in 1995, four years after Graham's
death.
Click
here for a quicktime video from the Martha Graham School of Contemporary Dance.
Last Tuesday, however, Federal District
Court Judge Miriam Goldman Cedarbaum, of the Southern District of New York, ruled
in favor of the School and Center and dismissed Protas's claims. One of the primary
arguments cited in Judge Cedarbaum's thorough, 36-page opinion is that when Graham
incorporated the Center and School, in 1948 and 1956 respectively, she granted
those two not-for-profit organizations the right to use her name. According to
Judge Cedarbaum, this right is "perpetual" and "irrevocable."
Cedarbaum also found that Protas
was not a credible witness and that he breached his fiduciary duty of loyalty
to the Center and School, by registering "Martha Graham" and "Martha Graham technique"
in his own name while he was a member of both organizations' boards of directors.
Furthermore, she wrote that Protas presented misleading information to the United
States Patent and Trademark Office when applying for the trademark registrations
(though she stated he had done so "whether intentionally or not").
Although the Judge's ruling is a
major victory for the Graham School and Center, the battle is not over yet. The
parties will meet for a hearing on September 14. According to the Graham team,
one of the issues expected to be decided this fall is whether Protas can prevent
the Graham Company from performing Graham's ballets. As sole heir, he claims ownership
of the copyrights to Graham's works, which he licenses to others through the Martha
Graham Trust.
Nevertheless, Marvin Preston, executive
director of the Graham School and Center, believes that the most important issue
has been already settled. "The trademark issue is important because it is an issue
of control," Preston explained. "The bottom line is that Ron Protas has absolutely
zero control over these organization. Now that we've settled that, we can go on
to determine who owns the works. But, regardless of who owns them, the copyright
issue is not an issue of control, it is an issue of royalties. Copyright is like
taking a toll. One can take a toll, but one can't intervene."
Martin Lofsnes, principal dancer
in the Martha Graham Dance Company and faculty member at the school, agrees that
the autonomy which Judge Cedarbaum's decision grants the school is very important.
"Though it is painful for the dancers to not have the company up and running,"
says Lofsnes, the dancers' union representative, "we're very positive for the
future now, because the school is really the base, the training ground, and the
foundation for everything." And board chairman Francis Mason promised that, in
the wake of the judge's favorable ruling, the board "will now vigorously pursue
our plans for the future, including the construction of a new school in the new
building on the site of Martha's former townhouse and the reconstitution of the
Martha Graham Dance Company."
Preston confirmed that the school
has every intention of moving from its temporary quarters on West 26th Street
back to its former site on East 63rd Street by the end of the year. It is also
in the process of regaining authorization to grant I-20 student visas to international
dancers. Historically, an international student population is crucial to the Graham
School. When the School and Center suspended operations in May 2000, many of its
international students returned home. Yuko Suzuki, a native of Tokyo, who has
studied at the Graham School for the past five years and is a member of the Graham
Ensemble, explained that the big issues at stake "have caused so much drama in
individual lives too. Some of the international students were on scholarship.
When the school closed and they lost their scholarships, if they couldn't afford
tuition elsewhere, they had to go home. Now many people are waiting for the Graham
School to be able to issue the I-20 again."
Since the school re-opened in January,
Suzuki noted, "There has been really good energy. We knew we had to learn the
Martha Graham technique. It was really important to keep going, every day, day
by day." That good energy reached a fevered pitch when the students found out
about Judge Cedarbaum's decision. "We were very excited on Wednesday, of course,"
Suzuki reported, "each of us asking the others, 'Did you see it? Did you see it?'
Amy (Harrison, the School Administrator) put it on the board and sent each student
an e-mail. We were not surprised as much as relieved. It's more like 'Yes, of
course, it should be this way.'"
Harrison and Hodes, as well as other
Graham faculty and administrators, have kept students abreast of developments
along the way. Xeroxed copies of articles about the trial are kept on the desk
for students to read. Last Friday, the school bulletin board was full of newspaper
articles announcing Judge Cedarbaum's decision, including from the New York Times,
the Law Journal and the International Herald Tribune. When interviewed on Friday,
Hodes described a palpable shift in students' attitudes last week as a result
of the ruling. "Everyone did the same moves in class today as they did on Monday.
But, today there was something electric about those moves! Before, we had a steadfast,
devotional energy, as in 'We're going to stick with this, because we love Graham
technique.' But today, they were bounding through the universe!"
Indeed, many would agree that Cedarbaum's
decision has, if not universal, than at least global implications. Harrison noted
the many e-mails she received from around the world last week, while principal
dancer Terese Capucilli glowed, "I believe the entire dance community is awaiting
the final outcome. It is a very important thing for the entire community. Lots
of hearts and minds are hoping for the best."
The widespread interest that the
Graham trial has generated can be seen as a reflection of the belief that some
Graham dancers share, namely, that Graham's dances can't be owned by an individual,
because they belong to the world. Hodes recalled the moment when this idea first
occurred to him. "It was 1950 and we were in Paris. Martha was despondent because
she'd hurt her knee very badly and was worried that she'd never dance again. Another
of the dancers tried to reassure her by saying, 'But, your dances will be danced
forever.' At which point Martha turned to her and said, 'If I can't dance, I don't
care if my dances are ever done again!' I remember being outraged and thinking
'How dare you consign your dances to oblivion, they don't belong to you, they
belong to the world!' It was that day that I realized that I cared about the dances."
Lofsnes echoed this sentiment, explaining,
"I know in my heart to whom these works belong: They belong to the world, not
to one person." A similar external focus spurred Preston to emphasize, "What would
be best would be a settlement that allows us equal access to all of the dances.
We might jointly agree to license the dances to the outside world and to use them
ourselves within the company and the school. That way, everyone wins. The most
beneficial thing to all, including the public, would be such a settlement. We
are open to that and hope it does happen." Lofsnes summarized the feeling among
the dancers as, "We hope to avoid a legal battle. The works don't need to be in
court, the works need to be on stage."
The Dance Insider also undertook
to secure an interview with Protas. Rather than agree to direct contact, his publicist,
Ellen Zeisler, stated that the Dance Insider could conduct a written interview,
by preparing and submitting written questions. The following questions were submitted
on Saturday afternoon, with the request for a response by Monday afternoon:
1) How would you describe the present
situation? How did you arrive at this point?
2) What is your reaction to Judge
Cedarbaum's decision? How will this decision affect the future of Martha Graham's
legacy?
3) To the extent that the present
situation is undesirable, what could have been done to avoid that? Can anything
be done to change or rectify the situation, from your point of view? Is there
anything positive about the present situation?
4) Were any efforts made, in response
to Judge Cedarbaum's suggestion, to resolve the suit through settlement, compromise,
or any other way satisfactory to parties? Are you able to disclose your present
position regarding a possible settlement? If so, what is that position?
5) Is there a possibility that a
compromise could be reached with the Graham Center about the performance of Martha
Graham's ballets?
6) Where do you plan to go from here?
Will you be appealing this decision?
7) What is the status of pending
litigation?
8) What is the agenda for the session
scheduled for September 14? What do you hope to achieve during that session?
9) What can you tell us about Martha
Graham's intentions when she signed numerous sheets of blank Graham Center stationary?
How were those pieces of paper used during Mr. Protas's tenure as Artistic Director?
10) What were Mr. Protas's grounds
for claiming that he owned the Martha Graham technique? How does he respond to
the contention that a non-dancer, who is unable to perform a technique, can nonetheless
own the technique?
11) Does Mr. Protas have any comment
on Judge Cedarbaum's finding that he is not a credible witness? If so, what is
that comment?
12) It was reported in the media
that Mr. Protas testified that Martha Graham did not consider Stuart Hodes to
be a great dancer. Does Mr. Protas have any further comment regarding that issue?
13) Does the Martha Graham Trust
have plans to rent Martha Graham's ballets in the future? Have any already been
rented? What is the cost of a ballet? What percentage, if any, of that rental
fee would go to Jane Hermann?
14) Is there anything else you would
like to add?
Rather than respond to each or most
of the particular questions, the Martha Graham Trust and the Martha Graham School
and Dance Foundation, Inc.(the latter being the entity Protas set up when he decided
to challenge the center and school's rights to use the Martha Graham name) provided
the Dance Insider exclusively with the following prepared statement on Monday
afternoon:
"Robert D. Russo, Producer and Administrator
said, 'The Martha Graham Trust and the Martha Graham School and Dance Foundation,
Inc., are reviewing the recent decision by the Federal District Court of New York
and are discussing with their attorneys all of their legal options including that
of an appeal.'
"Ron Protas, Artistic Director of
the Martha Graham Trust and Martha Graham School and Dance Foundation said, 'I
remain committed to honoring and effectuating Martha Graham's wishes for the use
of her name and her legacy as she instructed me to do.'
"The Trust and Foundation said that
they disagree with the court's decision.
"Martha Graham appointed Ron Protas
as her sole heir and she personally chose him to oversee her name and her tremendous
legacy. During her lifetime, Martha Graham put a number of mechanisms in place
to ensure that Ron Protas would be the one to make the 'the final artistic decisions
as to the rightness of things artistically for my company and school.'* She herself
trained him and appointed him to oversee and direct her great legacy. Martha Graham
stated that it is 'Ron who I have trained over the last eighteen years physically
in my technique, and in maintaining the artistic, the dramatic standards I wish
for my works. Last year he took in hand the need for an ending for one of the
great hits of our last New York Season, 'Celebration.' There was no record of
an ending and before I came to the final rehearsal I asked that he sketch out
an ending with the rehearsal directors. What emerged was an ending that had the
signature of what I wanted; I had only to make peripheral changes in that ending;
the form, the thrust, the line he had been trained to sense I would have wished
was there.'*
"....Mr. Protas and the Martha Graham
Trust and Martha Graham School and Dance Foundation remain firmly committed to
honoring and fulfilling the legacy of Martha Graham as she had wished."
"*Quote from Martha Graham in the
transition document she wrote and signed (notarized) on August 15, 1988. Miss
Graham wrote this document at the suggestion of the Center's board of trustees
when they asked her to formally address her wishes for the future. This document
was entered into as evidence during the recent trial."
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