Graham Center victory - News - Martha Graham Center of Contemporary Dance litigation

Dance Magazine, Nov, 2002 by Joseph Carman

In an overwhelming victory for the Martha Graham Center of Contemporary Dance, a federal judge ruled on August 23 that the center owns the rights to the majority of Martha Graham's ballets. If it stands, the decision may have a strong impact on the way choreographers will need to plan for ownership of their works after they die.

After a prolonged court battle with Ronald Protas, the heir to the Graham estate, the center, which includes the Martha Graham Dance Company and the Martha Graham School of Contemporary Dance, was awarded the copyrights to forty-five Graham ballets, including Letter to the World, Acrobats of God, and Primitive Mysteries. Ten more Graham dances were designated to be in the public domain, five were considered to be the property of other entities, like The Juilliard School, and nine had inadequate evidence of ownership.

Protas was only awarded the rights to Seraphic Dialogue, the one dance on which the center had failed to renew its copyright. The Martha Graham Dance Company performed the piece in a gala last May and Judd Burstein, the lawyer for Protas and the Martha Graham Trust, said they intend to sue the center for copyright infringement on that work.

Katherine B. Forrest, the lawyer for the center, argued the case based on the premise that Graham was an employee of the center from 1956. A letter from Graham to her mother that year stated that the foundation, established in 1948, had bought the school and her name from Graham for tax purposes. Burstein maintained that Graham had always kept autonomous power over her works. In her decision, Judge Miriam Cedarbaum in effect ruled that Graham had given ownership of her works to the center and therefore did not have the right to will her ballets to Protas. In addition, Protas was ordered to pay the center $241,000 for royalties he had received from licensing Graham's ballets and selling materials to the Library of Congress.

"We rejoice that the decision comes just as we are making plans for our Joyce Theater season and tour," said Francis Mason, the chairman of the Graham board. "This permits us to go ahead as we hoped." (The Joyce Theater season will run from January 21 to February 2, 2003. As of early fall, tour dates had not been set.)

Burstein, who plans to appeal the decision, said, "I think when the court of appeals reviews this entire record, they are going to make certain determinations that will right what I think is a terrible wrong. I don't think I've ever felt quite as confident about a reversal as I do about this case." On July 2, the trust lost its appeal to prevent the center from using Martha Graham's name, which Judge Cederbaum had stated the center owned by common-law rights.

Burstein warned that a dangerous precedent could be set with this latest ruling. "I think future choreographers should be very wary of this decision," he said. "The notion that Martha Graham did not own the copyright to her work because there was a corporation set up to facilitate her work is a shocking conclusion."

Other choreographers, including George Balanchine and Jerome Robbins, have successfully passed their works on to heirs. What makes Graham's will any different? Barbara Horgan, who administers the Balanchine Trust, said it may simply come down to the fact that Balanchine's heirs and trustees get along. Balanchine licensed his ballets to many companies while he was alive. And unlike Graham, who named Protas as her sole heir, Balanchine willed his ballets to a number of heirs, including some of the ballerinas who created the roles in those ballets. The Balanchine Trust functions as a committee and was formed to streamline the process of licensing the works--thereby helping to insure that they'd live on.

Marvin Preston, the director of the Graham center, indicated that their goals were similar "Our mission is one of preserving Graham's repertoire and legacy and creating a future for the company. What we were after was access to the dances." He also said that, though the board has made no decisions regarding the licensing of Graham ballets to other groups, the prospect is being considered.