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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,
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?
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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