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A decision in the Martha Graham case

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Here's a press release from the Graham Company:

August 23, 2002 (New York, NY)? The Martha Graham Center of Contemporary Dance is pleased to announce that a Court decision has been issued today establishing the ownership of the choreography created by Martha Graham and related sets and costumes. The Honorable Miriam Goldman Cedarbaum of the Southern District of New York issued a decision confirming that the Martha Graham Center owns the overwhelming majority of Martha Graham's dances: the Center (Defendant) owns fifty-four works; 10 works are in the public domain; 5 works are owned by commissioning entities; and the Plaintiff (Mr. Protas) has been declared owner of one dance.

The 110-page decision confirms that Martha Graham assigned the majority of her choreographic works to the Center and that the bulk of those remaining were created by Martha Graham as an employee of the Center which she herself created.

While the Board of Trustees of the Center is pleased with this decision, it is important to note that dance companies can and do make arrangements with choreographers establishing that ownership of the dance(s) created by the choreographer resides with the choreographer. George Balanchine and other choreographers made such arrangements. Martha Graham chose not to.

Five of the dances were commissioned by third parties in or prior to the 1950s. As to those commissioned-dances the Court indicated that the third parties may have some rights. The decision details the extensive documentary evidence and testimony of more than a dozen witnesses supporting the enter's ownership. Indeed The Court found that Mr. Protas' own lawyer had elicited testimony from a former Board member confirming the Center's ownership.

The Court also found, as argued by the Center, that ten of the 70 dances at issue have now entered the public domain in the United States (the sets and costumes relating to these works were found to be owned by the Center)1. The Martha Graham Center is very pleased that the ten dances found to be in the public domain will be available to the public for study and performance.

The decision also recognized that Martha Graham either assigned all of her theatrical properties (including sets and costumes) to the Center or that the Center otherwise paid for those sets and costumes.

The Court also found that Ronald Protas had a technical "renewal right to the copyright" of a single dance. The Court found, however, that the Center owns the set for that dance.

The Court stated that "After listening to [Mr. Protas] evasive and inconsistent testimony and observing his demeanor" it found that he was not a credible witness. The Court also found that Mr. Protas "profited mproperly at the defendants' expense and did not act 'with an eye single to the interests' of the defendants to whom he owed a fiduciary duty." Finally, the Court stated that in Mr. Protas' "desire to undermine the Center's ownership of the works, sets and costumes, Protas did not ccurately inform the Board of the underlying facts."

The Court awarded the Center more than $240,000 for Mr. Protas' improper licensing of works actually owned by the Center and for selling the Center's property to the Library of Congress.

Francis Mason, Chairman of the Board of the Martha Graham Center stated: "We rejoice in Judge Cedarbaum's decision confirming our ownership or the public's ownership of the choreography created by Martha Graham as well as that the Center owns all sets and costumes. This decision is particularly timely in light of our impending move back to Martha and the School's old premises that have now been completely renovated. We have an exciting two-week season commencing at the Joyce Theatre on January 21, 2003 and could not be happier to put this very difficult chapter behind us."

A copy of the decision can be found at


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There is a very interesting commentary by Robert Greskovic in today's Wall Street Journal (available online only to subscribers).

The gist is that there's more to restoring the Graham legacy than a legal opinion. Here are two paragraphs excerpted:

In some cases, Mr. Protas's authoritarian manner, based on no formal dance training (his own background was that of a photographer and devoted Graham fan), estranged numerous veteran dancers who could have helped to stage Graham's work reliably by instilling this generation's dancers with invaluable history. Such seasons as ensued in the late 1990s became more sporadic and shorter, while tight budgets led to the use of recorded music. Artistic decline compounded quantitative compromises. Mr. Protas's choice and preparation of dancers remained dubious at best, at times revealing performers of skin-deep skill. Similarly, the emphases he deemed appropriate for lluminating Graham's emotionally charged and physically sharp dance language often rang hollow, with desperate play-acting cheapening thrilling Graham theatrics.

For some time now, Graham's canon has paled and grown patchy. Judge Cedarbaum has given a thorough assessment of the legality of artistic ownership in a 111-page decision. But artistic life will not necessarily spring forth and flower because an inept individual has now lost his legal hold. Artistic matters cannot be decided in the courts, or in board rooms. If Graham's dances are to command attention again, and win an eager audience, an artistic director sensitive to her art and to today's public is the only answer. With former Graham-dancer candidates aging to the point of infirmity, the pickings are smaller every day. An artistically adept and astute member of the younger generation is wanted, but all are untried.

Comments? Personally, I feel I've never seen a first-rate performance of a Graham work, except on video. I first saw the company in 1976, when Graham was still alive, and the works seemed small and dusty to me -- yet when I read about them, I am absolutely convinced that Graham was a very, very great choreographer, and if I'd seen her work when new I'd have been a devoted acolyte.

How can Graham works be revived? Is her aesthetic so out of kilter with today's anti-expressionism that revival in any meaningful way is not possible?

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I think not. But it will take some extraordinary commitment and work by a new generation of dancers and teachers to find what has been missing. What that is is debateable. It could be an emotional understanding of the pieces. A better understanding of the message. It could be described as simply as heart or ethos. I'm not sure, but the last time I saw the Graham company (early '90's) I saw cardbord cut-outs.

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I wonder if the widespread negative feelings about Protas are obscuring a rather questionable aspect of the judge's decision -- I can't imagine that many choreographers would be happy to hear that they are employees whose "work for hire" is the property of some organization or other (even their own) as if they were in advertising or something.

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It does sound distasteful, but it's not a new concept. Fokine found that he did work for hire when Diaghilev fired him and he had no rights to his own ballets -- and, worse, Massine was the ballet master and so had the right to stage them!!!!! (The idea that "gosh, it just doesn't look the same this season, wonder why?" is not new :) )

Writers work for hire. If someone writes short stories for magazines, s/he has to get permission to publish them in a collection. The magazine could get huffy and say either "No," or "Sure, but it'll cost you."

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