Thing 000955 (Martha Graham’s choreographies)

In the 1920s, Martha Graham started a dance company and a dance school, running them as sole proprietor. In the 1940s, for tax reasons and because she wanted to extricate herself from funding and legal matters, she founded a non-profit corporations, which she led, to support her work. The Martha Graham Center of Contemporary Dance was incorporated in 1948. Initially it was known as the Martha Graham Foundation for Contemporary Dance, Inc., but the corporation was renamed the Martha Graham Center of Contemporary Dance in 1968. Graham operated her school as a sole proprietor until 1956 when she sold it to the Martha Graham School of Contemporary Dance, which was incorporated in 1956. Graham worked via these two non-profit corporations - the Martha Graham Center of Contemporary Dance and the Martha Graham School of Contemporary Dance.

Around 1967, Martha Graham, then in her 70s, became acquainted with Ronald Protas, then a 26-year freelance photographer. With his support, she pulled herself out of a depression. Protas and Graham became friends, and although Protas had no previous dance background, Graham increasingly trusted him to represent her in both personal and professional matters. Graham installed him as the Center’s General Director. In her last years, she was increasingly remote, and many dancers disagreed with the way Protas directed the center.

In her last will, signed in 1989, two years before her death, Graham named Protas her executor and, gave to him, in addition to her personal property, her residuary estate, including any rights or interests in dance works, musical scores, scenery sets, Graham’s personal papers and the use of [Graham’s] name. The will did not identify what these interests might be.

After Graham’s death in 1991, Protas became Artistic Director of the Center. Protas asserted ownership of copyrights in all of Graham’s 71 choreographies. During the 1990s, the Trust licensed many of the dances and sets to various licensees. In 1998, he placed all copyrights in the Martha Graham Trust, a revocable trust that he had created and of which he was trustee and sole beneficiary.

In 1998, Protas arranged for the Trust to sell numerous books, musical scores, films and tapes of performances and rehearsals of dances, and business and personnel files relating to Graham’s choreographies to the Library of Congress for $500,000. The relations between Protas and the dancers deteriorated drastically.

In 1999, the Trust entered into a licensing agreement with the Center, an implicit term of which was Protas’s resignation as the Center’s Artistic Director. The Trust agreed to give the Center an exclusive license to teach the Martha Graham technique, and a non-exclusive license to present live performances of Graham’s dances; to use sets, costumes, and properties; to use Graham’s images; and to use the Martha Graham trademark. The Center agreed to give the Trust power to approve the selection of a new Artistic Director. The Center also agreed to keep Protas on the Board, pay him a salary of $55,000 to $72,000 for ten years, and give him prominent billing as Artistic Consultant.

In 2000, when Protas and the Center failed to find a mutually agreeable replacement, the Board voted to remove Protas as Artistic Director. Shortly thereafter, due to severe financial difficulties, the Board voted to suspend operations. Meanwhile, Protas, acting through the Trust, founded the Martha Graham School and Dance Foundation, a not-for-profit corporation.

Between 2000 and 2001, Protas obtained certificates of registration for 30 of Graham’s dances as unpublished works. By agreement with the Trust, the Martha Graham School and Dance Foundation became the exclusive licensee in the United States for live performance of virtually all of Graham’s dances and use of the Martha Graham trademarks. During the same time period, the Center also obtained certificates of registration for initial and renewal terms for some of Graham’s dances.

In 2001, after receiving substantial funding, the Center and the School reopened. Protas then initiated a lawsuit to forbid the Center and the School from using the Martha Graham trademark, teaching the Martha Graham Technique, and performing 70 of Graham’s dances. He claimed that the Trust owned all rights in the dances, that the Martha Graham School and Dance Foundation was the current and authorized licensee of such rights, and that any unauthorized use of these dances would constitute willful copyright infringement. But the Martha Graham Center claimed that the dances, sets, and costumes at issue belonged to the Center either by virtue of the work-for-hire doctrine or Graham’s assignments.

On November 4, 2002, the court case Martha Graham School and Dance Foundation v. Martha Graham Center of Contemporary Dance took place at the District Court for the Southern District of New York. The Court found that many of the certificates of registration obtained by both the Martha Graham School and Dance Foundation and the Martha Graham Center of Contemporary Dance did not constitute evidence of copyright ownership because they were based-sometimes by deliberate misrepresentation-on the incorrect premise that the works were unpublished, and because there were competing certificates. Judge Miriam Goldman Cedarbaum, concluded that the 27 dances that Graham had created during the years she was employed by the School or the Center (1956-1991) were works for hire by the Center: Embattled Garden, Episodes: Part I, Acrobats of God, Phaedra, Secular Games, Legend of Judith, The Witch of Endor, Part Real-Part Dream, Cortege of Eagles, Plain of Prayer, Mendicants of Evening, Jacob’s Ladder, Lucifer, The Scarlet Letter, O Thou Desire Who Art About to Sing, and Shadows fell under the 1909 copyright act and The Owl and the Pussycat, Ecuatorial, Frescoes, Judith (II), Andromache’s Lament, Phaedra’s Dream, Song, Tangled Night, Persephone, Maple Leaf Rag, and The Eyes of the Goddess fell under the 1976 copyright act. The Judge also decided that Graham had assigned 18 previous dances to the Center, that were not works for hire: Tanagra, Three Gopi Maidens, Harlequinade, Primitive Mysteries, Serenade, Satyric Festival Song, Dream, Saraband, Imperial Gesture, Deep Song, Every Soul Is a Circus, El Penitente, Letter to the World, Punch and the Judy, Salem Shore, Deaths and Entrances, Eye of Anguish, and Ardent Song. The court ruled that copyrights in a total of 45 dances belonged to the Martha Graham Center of Contemporary Dance. The copyright in only one dance, Seraphic Dialogue, belonged to Protas’s Martha Graham School and Dance Foundation. The Court found that ten dances were in the public domain for lack of timely renewal: Flute of Krishna, Heretic, Lamentation, Celebration, Frontier, Panorama, Chronicle/Steps in the Street, American Document, Appalachian Spring, and Night Journey. And five dances belonged to commissioning parties who were not involved in the action: Herodiade, Dark Meadow, Cave of the Heart, Judith (I), and Canticle for Innocent Comedians. And ownership of copyrights in nine of the dances had not been established: Errand into the Maze, Diversion of Angels, Clytemnestra, Circe, Adorations, Acts of Light, The Rite of Spring, Temptations of the Moon, and Night Chant. Following the decision, Martha Graham School and Dance Foundation appealed.

On August 18, 2004, the court case Martha Graham School and Dance Foundation v. Martha Graham Center of Contemporary Dance took place at United States Court of Appeals. Judge Jon O. Newman stated:

... The critical events span sixty-five years, many of the pertinent facts are obscured by inadequate record-keeping, and the copyright issues require consideration of several provisions of both the 1909 and 1976 Copyright Acts. ... Under the 1909 Act, choreography could be registered, pursuant to regulations, as a species of dramatic composition. ... Explicit federal copyright protection for choreography was not provided until the 1976 Act included choreographic works among the categories of works eligible for protection. ... Like other creative works, dances are available for statutory copyright if fixed in any tangible medium of expression. ... Under the 1909 Act, applicable to works created before January 1, 1978, state common law copyright provided protection until first publication, and thereafter the work was entitled to an initial 28-year term of statutory copyright, provided that adequate statutory notice was given at publication, or appropriate registration and deposit were made. ... In the absence of adequate statutory notice at publication, the work was injected into the public domain. If adequate statutory notice was given, then application for renewal made during the last year of the initial term would extend the copyright for a renewal term of 28 additional years. ... Under the 1976 Act, works that were created on or after January 1, 1978, acquired statutory copyright upon creation. ... The copyright terms for works... in their initial 28-year term on January 1, 1978 [registered between January 1, 1964 and December 31, 1977]... are automatically renewed for 67 years after the initial 28-year term ends. ... with respect to works for hire, the employer is legally regarded as the author, as distinguished from the creator of the work ... A work is made at the hiring party’s instance and expense when the employer induces the creation of the work and has the right to direct and supervise the manner in which the work is carried out. ... The concept of work made for hire ... in the 1976 Act, ... defines the phrase to mean a work prepared by an employee within the scope of his or her employment or, for certain types of works, a work specially ordered or commissioned. ... The District Court ruled that nineteen of Graham’s dances, ... were works for hire under the 1909 Act, ... and fifteen, ... were works for hire under the 1976 Act. ... Although Graham was an employee of the School from 1956 through 1965, she was only a part-time employee, and, more significantly, we see no evidence that the scope of her employment included choreography. ... Graham’s regular employment duties did not oblige her to create dances from 1956 through 1965, and there is no evidence that the School (her part-time employer) or the Center commissioned her to create these dances at their instance or as a special job assignment. ... Our disagreement with the District Court’s work-for-hire ruling with respect to the ten dances created during Graham’s part-time employment with the Center and our general agreement with the Court’s publication and notice rulings as to the three of those dances that were published leads to the following disposition. We vacate the District Court’s judgment with respect to the seven works, ... created from 1956 through 1965 that were unpublished, and remand for the District Court to determine whether Graham assigned any of these seven works to the Center, or whether they passed to Protas through Graham’s residuary estate. We affirm the judgment with respect to Clytemnestra and Circe. We reverse the judgment with respect to Acrobats of God. ... The District Court found that the copyrights in all nine works created by Graham from 1966 through 1977, ... were made for hire and initially belonged to the Center. After Graham’s initial ten-year contract with the School expired, she was rehired for another ten-year term from 1966 to 1976. Rather than renew her former contract with the School, Graham signed a new contract with the Center that altered both the nature and extent of her employment from part-time dance instructor to full-time choreographer. Her new contract was renewed indefinitely in 1976. ... Graham’s status as an employee of the Center with contractual duties to create dances gives rise to the principal issue on this appeal: whether the dances she created from 1966 through 1977 (and, as we discuss in the next section, from 1978 through 1991) were works for hire belonging to the Center under traditional doctrine or whether, as the Appellants contend, the work-for-hire doctrine is inapplicable in view of Graham’s central role with that entity. The Appellants argue that she was not an employee within the scope of the 1909 Act. Even if Graham was technically a salaried employee of the Center, and even if she undeniably choreographed dances at the Center’s expense, the Appellants contend that she choreographed at no one’s instance but her own. ... No doubt Graham was a self-motivator, and perhaps she would have choreographed her dances without the salary of Artistic Director, without the Center’s support and encouragement, and without the existence of the Center at all, but all that is beside the point. The fact is that the Center did employ her to do the work, and she did the work in the course of her regular employment with the Center. Where an artist has entered into an explicit employment agreement to create works, works that she creates under that agreement cannot be exempted from the work-for-hire doctrine on speculation about what she would have accomplished if she had not been so employed. ... We agree with the District Court that the dances created from 1966 through 1977 are works for hire. ... Dances created by Graham from 1978 through 1991 are subject to the 1976 Act. ... the District Court made findings as to Graham’s status as an employee that are fully supported by the record, and we agree with the Court’s conclusion ... Graham’s dances created from 1978 through 1991, ... were works for hire. ... She received employee benefits and reimbursement for personal expenses, travel, and medical benefits, and a regular salary [t]o make dances. ... It is true that the Center did not exercise much control over Graham, but the absence of a hiring party’s exercise of control does not mean that an artist is not an employee where other factors weigh in favor of finding an employment relationship. ... Graham’s fifteen dances created in and after 1978 were properly found to be works for hire. ... It is clear, as the District Court indicated, that Graham’s 36 dances created before 1956 were not made for hire. ... the Center did not hire Graham prior to 1956 in any capacity, either as a traditional employee or as an independent contractor. ... the copyrights in them originally belonged to Graham until they entered the public domain for lack of renewal or unless she assigned them to the Center. ... Although there is no document memorializing Graham’s assignment of copyright in 21 of her pre-1956 dances to the Center, the District Court was entitled to find that Graham assigned to the Center, orally or in writing, her copyrights in her non-commissioned pre-1956 dances that were not published at the time she assigned them. ... evidence that Graham had assigned the entire group of her pre-1956 dances to the Center are two letters from Lee Leatherman, the Center’s Executive Administrator at that time, written in 1968 and 1971. These letters indicated that “[r]ecently Miss Graham assigned performing rights to all of her works to the Martha Graham Center of Contemporary Dance, Inc.,” and that “Martha has assigned all rights to all of her works to the Martha Graham Center, Inc.” ... assigning to the Center the copyrights in her dances gave her what she wished-freedom from the responsibilities of copyright registration and renewal, licensing, collection of royalties, and archival tasks. ... The District Court found that neither party established ownership of five dances... which were commissioned works... ten of the pre-1956 dances were published before January 1, 1964... The District Court found that these dances were in the public domain for lack of renewal. ... for Seraphic Dialogue and Acrobats of God, even if Graham had assigned the renewal terms to the Center, her death in 1991, prior to the beginning of the renewal term, voided such assignments, and the renewal terms reverted back to the author. ... As Graham’s beneficiary, Protas inherited the copyrights in Seraphic Dialogue and Acrobats of God. The District Court correctly ruled that Protas owned the copyright in Seraphic Dialogue. However, the District Court erred in ruling that Acrobats of God belonged to the Center, and we therefore reverse the District Court’s decision with respect to this work. ... We commend the District Court for its careful rulings on the many issues in this complicated case, most of which we affirm. We reverse the District Court’s determination of ownership of Acrobats of God because its renewal term belongs to Protas. We vacate and remand to the District Court for determination of ownership with respect to seven dances created between from 1956 through 1965, and two dances that were incorrectly deemed unpublished, and for recalculation of the amount subject to the constructive trust. As to the District Court’s rulings on all other dances and all the properties, we affirm.