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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 speaks.

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 Martha Graham."

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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