Rights of the Choreographer

The New York Times ran an article yesterday, Dance and Profit: Who Gets It?.

The article briefly explores the issues at the center of a pending legal dispute over the rights of the choreographer and the assignment or transfer of those rights.

Personally, it bothers me when lawyers become such a presence in artistic expression, but this is in the courts, and has been for years. The issues and concerns exist, and there are certainly growing problems balancing the rights of creators and the ability of those in the future to create. For now, I leave this as a touchstone for your comment…

(the full text is available at the link above, and copied for your reference below)

September 20, 2003
Dance and Profit: Who Gets It?

Contentious debates over artistic ownership generally seem to revolve around online music piracy or Mickey Mouse. But dance is facing unexpected and vexing questions about artists’ rights as well. Do choreographers own their dances? Or are they simply employees who give up ownership to organizations that commission or support their work?

As dance moves out of studio and into the world of corporate support, such issues have become more urgent.

Stories of musicians and writers losing the rights ? and the royalties ? to their work are familiar. But the problem has not really cropped up in dance until recently.

“This is definitely a success problem,” Charles Reinhart, the director of the American Dance Festival, said in an interview. “These problems would never have existed 50 years ago, because the concept of a penny being made by a choreographer or from a dance was unheard of. So now that the commercial aspect of making money has prevailed in this nonprofit world of dance, and the valuable asset is the dance itself ? hey, that’s a success story. Now we’ve got to straighten it out and make sure we keep that value with the creator, the choreographer.”

In the latest twist, several prominent names in dance and theater have joined the grueling legal battle over the rights to Martha Graham’s name and work, which has once again spurred a lively debate over a dancer’s artistic legacy.

Last year, Judge Miriam Goldman Cedarbaum of federal district court in Manhattan ruled that Graham could not have legally left her work to Ronald Protas, the heir named in her will, because she had signed away her rights in the mid-1950’s when she sold her school to the Martha Graham Foundation for Contemporary Dance (later the Martha Graham Center for Contemporary Dance) and in effect became its employee.

Mr. Protas is appealing the ruling and the case is expected to go to court as early as next month Over the summer Mr. Reinhart, along with Gerald Arpino, the artistic director of the Joffrey Ballet of Chicago, and Gordon Davidson, the artistic director of the Center Theater Group/Mark Taper Forum of the Los Angeles Music Center, filed a friend-of-the-court brief on Mr. Protas’s behalf. In it, they argue that artists can own their work even if they are considered to be employees, hired by the institutions with which they are affiliated.

It has been hard for some in dance to reconcile the image of Graham as a pioneering artist in American modern dance, an art known for its unruly independence, with the idea of a choreographer as a negotiating employee, assisted, with luck, by a savvy lawyer or two.

But dance producers and lawyers at a forum in New York last year agreed that the ruling was a wake-up call for artists to become more involved in negotiating the contractual conditions of work they create for their own and other companies or groups.

“We have never wrestled with the problem of what the creator, the choreographer, owns or doesn’t own,” Mr. Reinhart said recently. “There’s always been the assumption in the field that the choreographer owns his or her own work and can leave that work to whomever he or she would like to. The whole structure of the Martha Graham Dance Company and its legal entities was to support Martha, not the other way around.”

Mr. Reinhart has commissioned many dances for the American Dance Festival. Mr. Arpino and Mr. Davidson have a more personal connection to the suit. Mr. Davidson knew Graham and was briefly a stage manager for her company early in his career and Mr. Arpino has battled twice for the rights to his ballets.

Mr. Arpino founded the Joffrey Ballet with Robert Joffrey, but the two lost the rights to much of their choreography in 1964. That was when Rebekah Harkness, the company’s patron, withdrew her support and Harkness took over most of the dancers and repertory for her own new troupe. The Robert Joffrey Ballet dissolved that year, but a new company was founded in 1965 with help from the Ford Foundation.

In 1990, during a dispute with the Joffrey board, Mr. Arpino found himself battling again for the rights to his dances and those of Joffrey.

“All choreographers have is their work,” Mr. Arpino said, talking about his contribution to the court brief. “They certainly aren’t remunerated. If you were to amortize my salary over all these years, honey, I’d be making about $12 a week, if I made that much.”

Mr. Davidson reiterated a central point in the brief, that more artists today work for or with nonprofit organizations ? whether created by them to manage their own companies or larger organizations that increasingly oversee the awarding of private grants. Fewer artists work as the independent contractors who once predominated.

“It will be more frequent rather than less frequent that artists are embraced by some support system,” Mr. Davidson said. If the question is who owns the work, he added, “I wanted somehow to speak up for the artist, not forgetting the institution and giving them whatever share.”

But Marvin Preston, executive director of the Graham Center, said he believed Graham had made a conscious decision about the disposition of her work, to leave it to the center.

“I think that artists always have been able to, and still are able to, make that decision,” Mr. Preston said. “I believe that Martha did know and did make a choice. She did it with her eyes wide open. She did it with the advice and carefully sought counsel of her C.P.A. and she had very powerful attorneys and other people on her board who chatted with her about it. She articulated both to her mother and in other legal documents a full comprehension of exactly what she was doing. And what she was doing was not bad. It was intensely rational.

“The work-for-hire doctrine has been there for a very long time and affects all artists. And artists have a variety of ways of dealing with it. People need to say, `How do we, the board of directors and the artist, jointly want to address this?’ The law doesn’t limit what you can do. It merely defines what the choices are.”

The battle between Mr. Protas and the center, the umbrella organization of the Graham company and school, became public in May 2000 when the company suspended operations because of financial problems. The suspension followed a yearlong feud that resulted in Mr. Protas’s dismissal from the Graham board and in his refusal, as the head of the Graham Trust, which licensed her dances, to permit the company to perform the works.

Mr. Protas went to court to challenge the center’s right to Graham’s name, technique and dances. In last year’s decision, Judge Cedarbaum ruled that the rights to all dances created before 1956 were transferred when Graham sold her school to the foundation. The judge ruled that the center also owned the dances created after 1956 because Graham had effectively become its employee, and therefore she did not own and could not bequeath her dances to Mr. Protas.

One piece of evidence submitted by the center was a letter Graham wrote to her mother. It is undated but appears to have been written in 1956. Responding to her mother’s fears about her daughter’s financial situation, Graham wrote: “The Foundation has made a legal arrangement with me by means of which they `buy’ the school and my name. This is not frightening at all and has no fears attached. It simply means that the Foundation agrees to pay me for that name, etc., a certain sum.”

The arrangement meant that “I shall have a salary over the years regardless of the intake of the school,” Graham continued, adding that she did not entirely understand “the tiresome legal matters” and did not expect her mother to, but that she trusted her lawyer. “There is not much more money availabel,” she wrote, “but there is much less worry and fear because it is well taken care of and the future is better arranged for than ever before.”

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