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Flash View, 7-10: Give it Up, Mr. Protas
Appeals Court Ruling Affirms Protas is his Own Worse Enemy

By Paul Ben-Itzak
Copyright 2002 The Dance Insider

PARIS -- Last week's decision by a Federal appeals court to uphold an earlier ruling that Ron Protas could not prohibit the Martha Graham Center and School from using Graham's name is, at first glance, no surprise. Personalities aside, the former artistic director of the Graham company cannot elude the cold hard paper fact that twice, in 1948 and 1956, Martha Graham granted the center and school, respectively, what amounts to the perpetual right to use her name. Reading the fine print, though, the ruling reveals that even when Protas has been clever enough to almost swipe the Graham name from her true heirs -- the dance company and school -- in the end he sabotages himself with his petulance.

In its concise ruling issued July 2, the US Court of Appeals, Second Circuit, breezily supported most of the findings of Disctrict Court Judge Miriam Goldman Cedarbaum in her ruling last summer. But in one instance, it agreed with Protas's attorneys.

In July 1999, in an effort to ease Protas out of his post as artistic director, the Graham board agreed to a licensing agreement by which Protas would step aside and set up a new trust, which would license the Graham ballets to the Graham and other companies. In exchange for a $1 per year licensing fee, a salary for Protas, and other perks, the Center was to be permitted to perform the Graham works. The agreement also prohibited the Graham Center from disputing Protas's rights to Graham-related trademarks, such as the name Martha Graham and the phrase "Martha Graham technique."

Judge Cedarbaum interpreted the provisions of the license agreement to prohibit the Center only from asserting rights which it gained after the signing of the agreement. As the rights to the Graham name were actually granted to the Center and School long before the licensing agreement, she thus found, the Center was not prohibited from asserting these rights.

The Appeals Court found that the wording of the 1999 licence agreement referred not to rights which accrued to the center after it was signed, but to rights which were deemed after its signing to have accrued to it -- at any time. Thus, even though Graham granted the center and school the rights to her name in 1948 and 1956, the 1999 agreement, were it still in effect, would prohibit the center and school from claiming these rights. However, the higher court concluded, in the end the judge's error here was irrelevant because by the time Protas began making this claim, he'd already voided the licence agreement under which he was making it.

"Protas," the Appeals Court wrote, "cannot enforce this provision of the contract because Protas explicitly terminated the Contract."

That happened on May 26, 2000, the day after the Graham Center suspended the activities of the company due to financial difficulties it later ascribed at least in part to Protas's reluctance to let go, a major turn-off, the center asserts, to potential funders. It had removed Protas as artistic director two months before.

In petulantly cancelling the agreement, Protas may have satisfied a whim and temporarily derailed the Graham company, but he removed the one remaining weapon he had for stopping the Center from asserting its historically and morally valid claim to the Graham name.

If he were smart, Ron Protas would take a lesson here, and at least give up this particular claim, i.e. that he owns the Martha Graham trademarks. He would then sit down with the Graham Center for realistic discussions over who owns which Graham ballets, including agreeing to let the Graham company perform the ballets he is deemed to own, for a reasonable royalty.

(To read the complete Federal Appeals Court ruling, please click here. You'll need Acrobat Reader to be able to download the document.)

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