Copyright and DanceJuly 23, 2007
I'm sure many of you know about the now infamous (at least in the dance field) Martha Graham case. For those who don't, or who need a refresher: Martha Graham, head of the Martha Graham Center of Contemporary Dance (“Center”), and considered by many to be the founder of modern dance, died in 1991. In her will, she left her estate to her close friend, Ron Protas. Towards the end of the decade, Mr. Protas, a non-dancer, claimed that he owned the copyrights to approximately seventy of Ms. Graham's dances and threatened to prevent the Martha Graham Dance Company from performing those works.
After a long legal battle, Judge Miriam Goldman Cedarbaum for the Southern District of New York, determined that forty-five of the dances belonged to the Center, ten were in the public domain, five belonged to the individuals who had commissioned them, and one dance belonged to Mr. Protas. The forty-five dances belonged to the Center through one of two means. The court found that Ms. Graham worked as an employee of the Center from 1956 to 1991. During this time, she was paid a salary and was expected to create dances, and the Center financed sets and costumes, and received the royalty payments. The dances she created during this time, then, were created as works-for-hire, and therefore, owned by the Center. For works created before 1956, the court found that Ms. Graham had transferred her rights in her work to the Center that year.
For those of you doing the math, there are nine dances left – for these, the court found that neither side had shown adequate proof of copyright ownership. A later case determined that these works also belonged to the Center. As an aside, the court also determined that the Center owned the costumes and sets (many famously designed by Japanese sculptor Isamu Noguchi for most of the work.
The decision, obviously a victory for the Martha Graham Center, prompted two conflicting emotions in the dance world. On one hand, the field was elated. These wonderful and iconic works, much of a part of history, would be preserved through performance. On the other hand, the field was shocked to learn that choreographers might not own the rights to their dances.
I'll discuss the first-hand first. To really understand how much of a victory this was for the dance field, and not just Martha Graham's Company, it's important to understand how dance is preserved, and how challenging it can be to preserve it.
An important aside here: dance is preserved best through performance and passed down generation to generation by through the instruction of dancers who have already learned and performed the works. Of the other methods available for capturing a piece of choreography, Labanotation is one of the best. Labanotation is a complicated, although comprehensive, movement notation system invented by Rudolf Laban. The dance notation scores are written on a staff, much like a music staff, but Labanotation is read from bottom to top, instead of right-to-left. A system of symbols records where each body part is in space and in time, getting so detailed as to be able to record positions of the tongue.
This image was taken from the following website: http://www.ballet-dance.com/200607/articles/Rathvon20060324.html.
Unlike music, where there is a limited range of notes an instrument can play, the human body can make an unlimited number of different movements or shapes. This means that Labanotation is a much more complex system that is expensive and time consuming to learn. It is even more expensive and time consuming to record an entire piece of choreography, with multiple dancers. Understandably then, most dances are not recorded using Labanotation.
The next best method is video. However, there is another problem here: video is generally two-dimensional and capable of recording from only one perspective at a time. Dance is three-dimensional and often dancers must be able to see what the entire body is doing (not just the front or the back) at one time in order to reproduce the movement properly. In dance, it matters what happens where the audience can't see.
Given these challenges, the absolute best method for passing choreography down from generation to generation is by word of mouth (or body) from dancer to dancer. Practically speaking, this means that dances are preserved through performance. Hence, the victory for the dance field when the court announced that the Martha Graham Center owned and had the rights to perform the Martha Graham's work. Dancers learning the choreography and performing the works for the first time would learn from dancers who worked directly with Ms. Graham, and then those dancers would be able to pass the work on to a new generation. Had the court award the rights to the choreography to Mr. Protas, and had he then decided to withhold performance rights from the Graham company, the works and their integrity may have been lost forever.
Time for the second hand. While the court's decision was good for the company and good for the field overall, choreographers were less than thrilled to learn that they may not own their own works. Choreographic giants, such as Merce Cunningham and Paul Taylor, each of whom has their own company, have been creating since the 1950s, and have choreographed well over one hundred dances, were left in a world of uncertainty. Who owned their work: their companies? Their boards of directors? Commissioners? Did the individual choreographers themselves own any/some of the work?
The answers to these questions may be especially unclear with dance. As many know, dance is one of the most expensive arts to create. Not only does it require a choreographer and usually music, but it also requires dancers on which to build choreography and space in which to make it. All of these things cost money – it's especially costly to rent large spaces without obstructions where a dancer can move easily. And all of these things must be paid for. It's not uncommon in the dance field for another organization – a university, or a festival – to commission (order and pay for) a piece of choreography, but to pay only part of what it costs to create a dance. In addition to the choreographer's salary, the space, sets, costumes, music, dancers, etc. must also be paid for, and are often subsidized by the company. In this case, who owns the work? The choreographer who created it? The organization that commissioned it? Or the company that paid for most of the materials needed to create it? Finding the answer often means tracing a long and often incomplete paper trail.
Moreover, the answers to these questions become less and less clear as the works get older and the paper trail disappears completely. The younger a choreographer, the less likely he or she is to have the resources to create a paper trail. This is especially true for choreographers like Cunningham and Taylor, who began creating at a time when copyright was not a concern.
The lesson from all of this? Copyright is messy. Copyright and dance can be even messier. The Martha Graham case serves as a sharp reminder to the dance community of how important it is to not only indicate who owns a piece of choreography, but to avoid the costs of a legal battle. It's no secret in the dance community that the legal battle has left the Graham company crippled, struggling to keep its head above water. Dance is expensive to make and to preserve, and dance companies today (if ever) simply cannot survive an expensive legal battle.
Later, I'll discuss what choreographers are doing now to cope with the aftermath of Martha Graham, and to ensure that their own companies are not forced to fight a costly legal battle after the death of the founding choreographers.