Who owns choreography?

[Leigh Witchel]

For those who have been following the Graham conflict, it's about to lead down a very slippery road. One of the principal arguments of the Graham Center against Protas, the holder of Graham trademarks and copyrights is to question whether the works have copyright protection at all; it is argued that they were made for hire, and that perhaps any unnotated work is not actually afforded copyright protection. The problem here, is that if this argument is accepted and frees a portion of the Graham works from copyright, it could affect almost any other work from that time, including Balanchine's. Much as we all would like to see the Graham mess settled, do we want to do it at the expense of traditional copyright laws?

Are there any posters a bit more conversant in the case or intellectual property laws who could fill us in more and correct whatever inaccuracies I've reported?

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Leigh Witchel - dae@panix.com

Personal Page and Dance Writing

Dance as Ever

[Mme. Hermine]

i wonder if a ruling in that way would automatically remove copyright protection for works for which it had already been sought, retroactively, so to speak, or if it would only affect those either created after the ruling or which had not yet been copyrighted as of the ruling?

[felursus]

As a non-practicing notator, I remember being told when I was studying that only notation "copyrights" a dance. A film's copyrights are for the film NOT the dance. But legal interpretations may have changed in the last 30 years, so I hope there are some legal eagles out there. BTW, at least SOME of Balanchine's ballets were notated (how well, I do not know) - and I can't tell you which ones.

[Cliff]

The argument that work for hire is not subject to copyright law sounds peculiar. Work for hire affects the ownership, not the rights. For example, newspapers & magazines copyright their contents even though the work is normally done for hire. I have patents that are owned by a former employer.

I'm not an attorney nor an IPR expert, so this is merely an opinion.

Cliff

[Leigh Witchel]

I'm sure I misstated it originally. It sounds like their argument is that the work was done for hire, and because of that Graham did not possess the copyright to will it to Protas; it belonged to the company and school. That still affects many other choreographers if that argument is accepted.

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Leigh Witchel - dae@panix.com

Personal Page and Dance Writing

Dance as Ever

[Alexandra]

Fokine was sure shocked when he learned he didn't own his ballets!

I can't remember the details, unfortunately, but there were hearings about how to copyright choreography. I only remember this because Lincoln Kirstein testified. He made an interesting witness (took no prisoners, as I remember it).

I posted a thread on the Dance Board for those interested in discussing this issue specifically as it relates to Graham, and who are following the case.

[This message has been edited by alexandra (edited March 24, 2001).]

[Mel Johnson]

US Copyright law has changed considerably in the last 10 years. The former copyright law, written in 1909, was so full of amendment that it was cumbersome and practically unusable. Even the method of employing common-law copyright has changed. So we can all expect to hear of many many cases in many many disciplines being argued over the issue of copyright, just to establish new case law.

[doug]

This is a little off the top of my head, but . . . I wrote my analytic paper in law school on choreographic copyright. I believe it was in 1976 that Congress added choreography to copyright laws. Essentially, as soon as a piece of choreography is made, it is protected by copyright. The big case on this subject is still the Balanchine Trust case against the folks who wanted to published pics of Balanchine's Nutcracker in a book without the permission of the Trust.

[This message has been edited by doug (edited March 26, 2001).]

[Amy Reusch]

Isn't there something about fiduciary responsibility? Hasn't he abused his role as trustee, or does "trustee" mean that everything must devolve to his benefit? Would be nice if there were some way of making a special requirement for artistic legacy trustees that they have some responsibility to maintaining the legacy. Is there some sort of imminent domain available in regards to national treasures like the Graham repertoire & technique? (I apologize for my poor spelling). Where's Steve Keeley and his trusty dictionary?

[This message has been edited by Amy Reusch (edited March 29, 2001).]

[Drew]

If Protas were the trustee, perhaps he could be sued, but if he owns the copyright that's a different situation. Since Graham willed the works to Protas, I assume he isn't merely "responsible" for them -- as a trustee would be -- but actually "owns" them...That's what makes the situation so tricky. If it were to be successfully established that Graham's works were done "for hire," I assume one result would be that future contracts between choreographers and companies would include negotiations on just this point. (In academic publishing the copyright often belongs to the publisher not the author -- however very little in the way of money and even less in the way of genius is usually involved.)