Though she’s been dead for a decade, Martha Graham still casts an angular shadow over the dance world. Attempts by her heir, Ron Protas, to prevent the Martha Graham Center of Contemporary Dance from using the late dancer’s name got a legal heave-ho last week. In a Federal District Court ruling, Judge Miriam Goldman Cedarbaum declared Protas “not a credible witness,” and invalidated his efforts to trademark her name.
The judge’s 36-page decision seems a clear victory for the center, as much for what it suggests about the future as for what it settles now. That future starts with a hearing on September 16 which may involve copyright issues, specifically questions about ownership of Graham’s dances, which Protas has maintained became his when her will was probated after her death in 1991.
The attention focused on Graham’s copyrights is rippling through the dance community. Although Elizabeth Streb makes certain to obtain technical copyright by slotting a line on her videos, she admits, “I’ve ordered papers from the copyright office several times, but they’re still not filled out. It would behoove me to do that.” Queried about her registration of her work, Lila York, the former Paul Taylor dancer who now choreographs widely, said, “Your telling me this right now is the first I’ve heard of it—maybe I’d better do something.”
Of artists contacted, York was not unique in her hazy grasp of the situation. Most choreographers seem aware that putting a copyright line on a filmed or videotaped performance constitutes a technical copyright. What they may not realize is that a work is under copyright at the instant it’s created, but that unless they file a “writing” with the Library of Congress, creators have no right to collect damages on alleged infringements. No lawsuit for, say, plagiarism, can be instituted. (Since the ’70s, a “writing” has included notation and/or any filmed record of a dance.)
Edisa Weeks of Avila/Weeks Dance speaks for many choreographers when she says, about the relatively low cost of filling out copyright applications, “I’d rather put money toward costumes or dancers’ fees or studio space. [Copyright is] not pressing on my list. It’s something I have to find out more about.” She also reports that, while recognizing the value of a video camera to the longevity of her career, she can’t afford one. “I rely on memory,” she says. Gus Solomons jr, also uncertain about the subject, thinks he once sent a videotape to Washington. He says he knows enough “to slap whatever it is on a video.” All his works are in the extensive dance collection at the New York Public Library for the Performing Arts. Laughing about the protection copyright offers from plagiarism, he allows, “I don’t think my dances are all that great. I’m not Mark Morris. If someone wants to copy them, I’d be flattered.”
Ivan Sygoda, director of the nonprofit performing arts service organization Pentacle, says of the individuals and companies he represents, “I think people know to do the basics.” He sees it as his job to educate them further, although possibly neither he nor anyone else can ensure a choreographer’s notating a dance when the funds to hire a notator aren’t available, as is the case with, for instance, Weeks and Sean Curran. “This whole debacle has me thinking,” reports Curran, who heads his own troupe.
Some artists point to the Balanchine Trust, which administers the dances George Balanchine willed to various heirs, as a model for safeguarding copyrights. That trust, organized in 1986 by lawyer and trustee Paul H. Epstein, is administered by the choreographer’s longtime assistant, Barbara Horgan. Epstein thinks the current Graham arrangement “lacks clarity, and our situation is a model of clarity.” He reports that Horgan has noticed an increase in calls about the trust’s operations.
Those following the Balanchine Trust example include Jacqulyn Buglisi and Donlin Foreman. Foreman says that when he and Buglisi danced with the Graham company, “We were excruciatingly aware of copyright.” Although the team leases their works for specified periods of time, “We retain copyright.”
Sharon Gersten Luckman, executive director of the Alvin Ailey Dance Foundation, says Ailey willed his works to his mother, Lula Cooper. Believing it was important for a nonprofit to own the dances, the Ailey board purchased the rights for what Luckman thought “was a lot of money at the time.” Judith Jamison, under contract to the foundation as artistic director of the Ailey troupe, owns her own works; should she leave, the company has non-exclusive rights to use them upon payment of royalties. Paul Taylor’s office reports that all his pieces are “copyrighted and taken care of.” Jesse Huot, general manager of one of Twyla Tharp’s companies, says she owns all her works outright and that “when a company hires her to do a piece, they only purchase a license to perform it for whatever term is specified.” According to American Ballet Theatre spokesperson Greg Patterson, any choreographer commissioned to create a new ABT dance “owns copyright, the actual choreography. We draw up contracts for exclusive world-wide rights for three years, five years.”
Jean Rigg, executive director of the Cunningham Dance Foundation, comments that Merce Cunningham has been notating his works “in his own shorthand” and copyrighting them “forever.” Some choreographers express other, surprising attitudes. Eliot Feld confesses he doesn’t copyright his ballets. “My sense is I have videotapes,” he says. “That is sufficient without making copyrighting a preoccupation. I’m 59 and I know my mortality is palpable, but I don’t dwell on it. I don’t want [my works] notated. I actually think they only remain useful if they can change according to changing sensibilities and techniques. Having a definitive version is a curse and a blessing. It locks you into the past.”
His thinking could be considered philosophical or just lackadaisical, but he’s not alone. Choreographer Bill Young maintains that, since dance is frequently considered to be inseparable from the dancer, “the issue underneath copyright is the meat of the matter. After you’re dead, you can’t control a dance beyond what you [leave in] your will.”
Postmodern patriarch David Gordon remarks, “[Copyright] continues to be a vague thing, because it’s hard to believe it will ever matter. All articles about the dance world to the contrary, dance is the poor stepchild. You can’t sell it. If you sell your dance, you have to sell the person who does it along with it. Having fought the battle, over the years, of attempting to have dance taken seriously as an art form and not having seen great success in that venture—quite the opposite—I just wonder what we’re saving, what the battle is about.”
Phyllis Lamhut, who mentions she was trained very early to register her works with the Library of Congress and now refers to her company as “a democratic dictatorship,” puts succinctly another surfacing concern. “Dancers today have more input. ‘I made this phrase in one of her works.’ So who owns it? That is the issue that is going to be the hot one.”