Given the continuing controversy over Martha Graham’s legacy and its dispersal, the titles of some of her dances are proving eerily prophetic. Errand Into the Maze, Tangled Night, Embattled Garden, and Lamentation might apply to the brouhaha, which seems about to wind up in court.
In a move that could have widespread ramifications, the next campaign in the continuing struggle may be staged over the custody of Graham’s dances. Ostensibly, she left them to former artistic director Ron Protas in a will probated after her death in 1991. In July 1999 the board of directors of the Martha Graham Center of Contemporary Dance even seemed to acknowledge Protas’s outright ownership by signing a contract with the heir stipulating that, in his capacity as director of the Martha Graham Trust, Protas would grant the Center rights to perform Graham’s work for 10 years at a dollar-a-year rate. In exchange, Protas would receive an annual $100,000 remuneration plus office space, an assistant, and an expense account.
But when the board voted this past May to close the Manhattan school and suspend company activity until financial problems were cleared up, and, in response, Protas shut off access to the dances, the board deemed the licensing agreement terminated. At that point, both parties hoped the state attorney general’s office would mediate a settlement. Overtures were made to each side, and, according to Brad Maione, a spokesperson for the attorney general, for a while it seemed as if progress would be made.
But as a result of developments involving a $750,000 New York State Council of the Arts matching grant awarded the Center last month, attempts at mediation have bogged down. The new funding, obtained by State Senator Roy Goodman, would supplement monies already raised to allow the Center to reopen the school, possibly at 316 East 63rd Street—the site of the building the Graham Center occupied from 1952 until the board sold it two years ago for $3 million to retire company debts and establish an endowment.
Protas, who is proposing to affiliate the Graham school with an undetermined “major New York City institution,” wants the state grant. He insists the board’s May suspension of its agreement with him means their claims to financial aid have been forfeited.
This recent disagreement has exacerbated the differences between the Center and the Trust. Maione now says “a settlement may not be reached.” Litigation appears inevitable. What board members see as Protas’s reneging on his July 1999 promise has caused them to question his licensing power. His ownership of the dances, they think, can be contested. Indeed, they will dispute whether Graham herself owned the dances and was therefore in the position to leave them to Protas.
The board has already laid the foundation for an inquiry. At an October press conference, during the question period following Francis Mason’s announcement of the grant—which must be matched with an additional $750,000 from other sources—the board chairman said that in terms of copyrights of Graham’s dances, there were “no black-and-white answers.” Marvin Preston, the company’s executive director, said disposition of the rights is “very arguable” and that he is “fully prepared for litigation.” Michael Quinn, Protas’s lawyer, dismisses the subject by characterizing a copyright contest as “an after-the-fact fabrication to entice the press.” Not surprisingly, Dale Cendali, the Center’s lawyer, has a different take. She notes that Graham “could only leave what she held.” (Protas declined repeated interview requests for this article.)
The question now becomes: What did Graham really own? What did she have the right to leave in her brief will? “Nothing is identified by name,” Cendali says. (Nor was anything in the 1999 Center-Trust agreement.) “It is a possible outcome that she owned nothing. [Protas] runs the risk that at the end of the day, he could end up with nothing.” She means that Graham could have drafted many of her seminal works while she was a Center employee. If so, they would have been “work for hire” and thus Center property. Others pieces—the works from the ’20s being the likeliest candidates—may have already fallen into the public domain.
These issues, of course, have to do with determining intellectual property ownership—an area of law not widely explored—and any outcome will inevitably be felt throughout the dance world.
Although neither Cendali nor Preston wants to speak too specifically, they both make it plain that the board expects to take an exhaustive look at the entire Graham oeuvre. “You don’t have to go dance by dance,” Cendali comments. “It would be a detailed analysis of the types of dances and when they were created, what their history has been, the circumstances under which they were created, whether they were filmed or not.” In the promotional booklet “Martha Graham Vision 2000,” produced under the old regime, a list of Graham works contains 180 titles. They’re entered by year—beginning in 1926 and continuing until 1991. (In 1926 the 32-year-old choreographer created 28 dances, by far the most she ever made in a 12-month period.) Cendali says it’s possible Graham owned none of the works, and she hints this could be a major contention if the case goes to court.
Copyright issues have been complicated in the past when dance entered the discussion. Although legally all properties are under copyright as soon as they are created, the copyright owner cannot sue for infringement until a work is registered with the Library of Congress’s copyright office. In 1952 Hanya Holm registered the Kiss Me, Kate dances. At that point a dance supposedly had to have a story line in order to be registered. Subsequently the Library of Congress recognized Labanotation (developed in the ’20s), and other forms of notation, as well as videos, which made it much easier to protect dances. Graham, however, didn’t want her dances notated—in part because she never considered her works finished. She wanted to be able to alter them according to her instinct and for specific dancers’ bodies. More than one of her dancers will say she had little interest in the future; she was all about what was happening in the moment. She did, of course, allow dances to be filmed. In the last year or so, Protas has seen to it that the Trust began registering them. Quinn estimates that so far a couple of dozen are done, with more to come.
Janet Eilber, the former Graham dancer who was for a time the Center’s artistic director designate, brings up a facet of dance ownership that probably won’t feature in court arguments and wouldn’t receive much validation if it did. “Protas has certain aspects of the flame,” she says, “certain tangible pieces of paper, but there are also the artists who have been Martha’s creative collaborators. Ron can’t make that claim.” She’s referring to the notion that the dances reside in the bones and muscles of Graham-trained dancers who performed and could still perform the works. But this aspect of ownership will never arise in court.