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Flash Analysis, 8-14: Martha is
Dead; Long Live Martha
Judge's Ruling Returns Martha to the Dancers
"...Protas is not Martha Graham."
-- Federal District Court Judge Miriam
Goldman Cedarbaum, August 7, 2001
By Paul Ben-Itzak
Copyright 2001 Paul Ben-Itzak
PARIS -- In rejecting non-dancer
Ron Protas's claim that he and he alone owns the name "Martha Graham" and the
term "Martha Graham technique," Federal District Judge Miriam Goldman Cedarbaum
in one swift incision excised a cancer that had gnawed away at the body Graham
for years and threatened to destroy the greatest legacy in modern dance, returning
that body to the dancers in which Martha truly lives and through which she truly
Cedarbaum's damning 36-page ruling
vindicates the dancers who for years had to stand mutely by while Protas pretended
to speak for Graham. But by doing so on the witness stand during the trial last
Spring, in which he sought to stop the Graham center and school from using the
terms "Martha Graham" and "Martha Graham technique" -- among other things, he
claimed Graham didn't think her longtime partner Stuart Hodes was a very good
dancer --Protas killed his own case. The judge found Protas "not to be a credible
witness," on the one hand, while, on the other, praising a Defense witness who
was once found guilty of tax fraud related charges. The Judge also questions at
least one document produced by Protas -- saying, most significantly, "This mysterious
document, when coupled with evidence of the existence of numerous blank pieces
of Center stationary containing Graham's signature at the bottom, is entitled
to no weight."
In other instances, she foists Protas
on his own petard, citing a 1990 letter in which he wrote, "Martha wants to say:
'So deeply concerned am I for the future of my work and that the Martha Graham
Center goes on that I have ensured through my attorney that the technique and
the ballets will continue to be available and used by the Martha Graham Company
and School.'" The judge concludes, "Accordingly, Protas knew that Graham intended
and expected that the Center and the School would continue to use her name after
her death. If by registering Martha Graham's name in connection with educational
services (when he filed ownership claims on his own behalf with the federal Patent
and Trade Office), Protas sought the ability to preclude the Center and the School
from using Martha Graham's name, he was seeking to udnermine the arrangements
of Martha Graham with respect to the use of her name."
But as much as she excoriates Protas
personally, the Judge is also careful to cite case law and equities law, methodically
knocking down each of Protas's arguments; while her words may give satisfaction
to Graham insiders relieved to see Protas's deeds made public after all these
years, it is also rock-solid in its legal basis and thus likely "appeal-proof."
Most importantly, throughout the ruling, as a kind of leitmotif, Cedarbaum reiterates
that in 1948 and 1956, Graham, in consenting to her center and school becoming
not-for-profit entities -- and thus reaping huge tax advantages for herself --
Graham specifically gave the center and school the right to use her name.
While she stops short of accusing
Protas of deliberate dissembling when he filed trademark claims on "Martha Graham"
and |"Martha Graham technique" in 1993, the Judge chastises him and his then-legal
team for not adequately investigating whether the claim was true. She also points
out -- citing cases including one pitting the United Way against a former UW chairman
accused if inappropriate use of funds -- that in filing the claim strictly on
his own behalf, Protas, a principal employee and board member of the center and
school, was abrogating his "fiduciary duty of undivided loyalty to the center
and the School." She quotes from one decision, Scheur Family Foundation, Inc.
v. 61 Associates, which points out, "It is well established that, as fiduciaries,
board members bear a duty of loyalty to the corporation and may not profit improperly
at the expense of the corporation."
Much of Protas's offense was based
on the premise that a 1999 license agreement between his Martha Graham Trust and
the Center and School precluded the center from claiming the right to use Graham's
name based on previous agreements. However, the judge points out that the "previous
agreements" referred to are any existing between the trust and the Center and
School, and "Defendants have proven that they had a prior agreement with Graham,
not with the Martha Graham Trust or with Protas. Plaintiffs' argument extending
the...clause to agreements between defendants and Graham, who was not a party
to the license agreement, misconstrues the language of the clause; Protas is not
Protas may persist in the delusion
that he is Martha, vainly channeling her like a Tourette's syndrome victim sputtering
profanities on a street corner, with only Anna Kisselgoff of the New York Times
nearby to urge passersby, "Listen to him, he speaks the truth." But his delusions
can no longer hurt the school nor the dancers -- who truly speak for Martha with
their bodies every day.
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