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This Spring's Dance Insider coverage of Martha Graham is also sponsored by Nancy Reynolds, Doug Frank, Nora Ambrosio and Slippery Rock University, Karen Bradley, Barry Fischer and Frostburg State University, the Arts Paper, Scott Killian, Sharon Montella and Pine Manor College, Toba Singer, Esaias Johnson, Alice Helpern, and several anonymous donors. And by Karen Potter, Kelly Holt, and by the MFA students, faculty and Friends of Dance at Case Western Reserve University, where dancers receive professional level training in a conservatory setting, and who are are proud to support the Dance Insider's coverage of the Martha Graham Dance Company. To find out about becoming a DI sponsor, e-mail paul@danceinsider.com.

Flash News & Analysis, 4-23: Who Owns Martha Graham, Chapter Two
Judge Tells Courtroom: "I don't know what assets mean with respect to a dance company. The major assets are the dancers."

By Paul Ben-Itzak
Copyright 2002 The Dance Insider

NEW YORK -- The Martha Graham Center entered the trickiest phase of its fight to remain principal custodian of the Martha Graham legacy Monday, setting out to prove in Federal District Court that works created by Graham after 1956 were works for hire, and 22 ballets were in the public domain because films of them don't contain copyright notices. And the retention by Graham heir Ronald Protas of a kinder, gentler lawyer than represented him in the first phase of the trial could make the defendants' sailing over the next two weeks anything but smooth.

The Graham Center and School trounced Protas in last year's first round, when District Court Judge Miriam Goldman Cedarbaum, who appears to have a firmer grasp on the important elements in the dispute than either side let alone spectators, ruled that Protas could not stop them from using the name Martha Graham or advertising the school taught Martha Graham technique. The victory was cinched by the sloppy procedures of Protas's previous trademark lawyers in obtaining the TM and a surfeit of credibility Protas quickly established with the judge after taking the stand.

In this round, Protas seeks to establish that he owns the rights to the ballets, because Graham's will left him everything she owned. And, as the judge characterized the plaintiff's intentions, he'll try to show that the copyrights of her ballets were never transferred to the center, and that no ballets ever entered the public domain.

"This case is not about who should be the heir of Martha Graham's works," stated Protas's new lawyer, Judd Burstein, in his opening statement. "The issue is who owns them," said the quick attorney, who represents big-time boxers but himself has less the aspect of a Mike Tyson than a Gentleman Jim, regularly admitting errors and even apologizing to the bench for them. "We intend (to show) that in contrast to the trademark case, where the evidence was less clear, there is overwhelming documentary evidence in this case going back to the '70s confirming Martha Graham's ownership of sets and ballets."

The Martha Graham Center, said its new (and pro bono) lawyer Katherine Forrest of Cravath, Swaine and Moore, will attempt to show that ballets created after 1956, when the center became a not-for-profit entity and Graham its employee, were "works for hire." Explained Forrest: "While no one will argue she was not a creative genius, she had chosen to make herself an employee of a not-for-profit entity. Once she was an employee, the Center paid for the creation of the works....No royalties were ever paid to Martha Graham." (Reflecting the ongoing relevance to the case of the center's not-for-profit status and thus the investment of the public in the work, the New York State Attorney General continues to be involved as an intervenor for the Defense, and was represented in court yesterday by assistant AG Marla Simpson.)

This claim is the potential Pandora's box that has been interpreted by some to have much wider potential implications for the field. Most dance companies these days are not-for-profit entities. When they create ballets for the companies which bear their names, are those companies paying their salaries during the creation, and fees for specific performances of the work, or are they buying the work? At first glance, to even ask this question looks like taking away the creative province of the artists. But looking at other fields, the issue is not so clear: While a freelance writer would retain rights to his or her material after a magazine printed it, if the writer was an employee of the publication at the time of writing, the publication, not the author, would own the material, the idea being that the time the writer spent working on the article was time paid for by the company.

The Defense is also arguing, as Forrest put it in her opening arguments, that "22 Martha Graham works are owned by the public." Forrest's basis for this claim was brought out in the testimony of Graham board chair and dean of dance journalists Francis Mason. Taking the stand 50 years to the day after he first met Martha Graham, Mason reported that these films, which he recently viewed in the Dance Collection of the New York Public Library, had no copyright notice shown in the film. Mason, looking as always dapper and immediately commanding the courtroom like a theater when he took the stand with his stentorian voice, also explained how the films in the collection are available to anyone who fills out a form requesting them. (Later, on cross-examination by Burstein, he acknowledged that in general, there are sometimes restrictions on which film in the library's Jerome Robbins collection are available, some needing, for example, permission.)

Forrest appeared to be making the argument that as these films, to which the public has free access, have no copyright notices, they are therefore in the public domain. However, the case may not be that clear. For example, I as a critic could not review any of the films for publication, only for research or private enjoyment; the films and videos cannot be checked out; and they are not available for broadcast. These restrictions are mostly a nod to dancer and technical unions which otherwise might demand fees, and not directly related to copyright issues; however they may cast a doubt as to whether these films are truly in the public domain and, more important, whether the absence of a copyright notice on films which are generally for private (i.e., just individual members of the public) use means the author relinquishes her claim to ownership. And, one might even hypothesize, if Jerome Robbins, who funded the collection with royalties he received from "Fiddler on the Roof," knew that its access to the public was being used to try to deny ownership to a choreographer/author for her work, he might well not just roll over in, but jete out of his grave to offer some pretty choice words on the tactic.

Of course, whether Graham owned the works she created is an issue because her will leaves all she owned to Protas. After Burstein prompted Mason into acknowledging that the board didn't challenge Protas's claim from the time she died, 1991, to 2000, Forrest asked why.

"We trusted Mr. Protas," said Mason, a note of sadness detectable in his voice. "We knew him, we thought, very well." He also said, to Burstein,"I'm so sorry I didn't flex my fiduciary muscles. (But) Ron Protas was someone we trusted."

Burstein also sought to challenge Mason's assertion that no royalties were ever accorded Graham by asking witnesses about a board meeting in the twilight of her career in which, he claimed, Protas proposed her royalty fees be increased from $40,000 to $100,000. No confirmation was forthcoming. Also repeatedly, he asked witnesses whether the board ever directed Graham on how or what to choreograph. The answer being no.

In another effort to claim that the Graham Center not only never challenged Protas's claim to ownership of the ballets, but confirmed it, Burstein cited, in examination of Mason and of current Graham executive director Marvin Preston, a letter from the Graham dancers in which they stated: "Mr. Protas inherited Martha Graham's works." The letter was written after the Center suspended the Graham company's and school's operations two years ago.

Burstein appeared to assume that dancers are under the control of dance company administrators and can't think for themselves, and one point referring to them just as anonymous "people." Preston, like Mason, emphasized their independence, but acknowledged that "Perhaps my error was letting them use the (Center) stationary."

Perhaps yesterday's spiciest witness was the legendary Linda Hodes, who first met Graham in 1940 when Hodes was nine years old and took her class, going on to dance with the company for 13 years, serve as its associate artistic director, and even do time on the board. Here's some of the colloquy between Burstein and Hodes, who appeared looking smart in a grey suit that matched her grey-black-silver hair, and at least ten years younger than doing the math would tell you is her actual age:

Burstein: In 1988, did Martha Graham state that she wanted Ron Protas to have final artistic say over her works?

Hodes: (Yes.)

Burstein: When you learned of that decision, you were not surprised?

Hodes: Surprised? No. I was disappointed.

Hodes also acknowledged that she had complained to Graham about Protas, between three and ten times. Then she added, with a chuckle: "She complained too."

But the most perceptive observer in the peculiar case the court has dubbed Graham v. Graham continued to be Judge Cedarbaum. When Hodes was asked by one attorney, "When you were associated with the company, what were the assets," the judge interjected, in a comment sure to cement her growing reputation as a hero to dancers:

"I don't know what assets mean with respect to a dance company. The major assets are the dancers."

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