Thing 000955 (Martha Graham’s choreographies)

In the early 1920’s Martha Graham started dancing. In 1926 she gave the first public performance of her own choreography. After Martha Graham formed an all-woman performance troupe under the name Martha Graham Group. When men joined the troupe, the groups name was changed to the Martha Graham Dance Company. In the late 1920’s and early 1930’s, Graham began developing her own system of dance exercises and movements that focused on contracted muscles and energy release. In approximately 1930, after teaching her work informally and as an instructor at various institutions, Martha Graham also opened a school called Martha Graham School of Dance. Martha Graham runned the dance company and the dance school as sole proprietor.

In 1948, Martha Graham founded a non-profit corporation, which she led, to support her work. 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.

In December 1956, on the advice of Rubin Gorewitz, her tax accountant, Martha Graham also founded a non-profit corporation for the school. It was called the Martha Graham School of Contemporary Dance. When Graham sold her sole proprietorship to the School, she entered into a ten-year employment agreement with the School to serve as a Program Director. Graham’s job title later changed to Artistic Director. As Artistic Director, it was her responsibility to create new dances, to maintain the repertory of dances, to rehearse the company, and to supervise the School. Graham worked via these two non-profit corporations Martha Graham Center of Contemporary Dance and Martha Graham School of Contemporary Dance. The Center oversaw and funded the performances of the Martha Graham Dance Company, Graham’s unincorporated performance group, and the Dance Company often used dancers from the School to participate in performances. The Center operated as an umbrella organization, encompassing the teaching, choreographing, and performing of dances by the School and the Dance Company.

In January 1957, in the course of developing the School as the center of her activities, Graham gave all of her theatrical properties to the School.

In June of 1966, Graham’s employment agreement was extended for another ten years. Graham served as Artistic Director and Board member of both the Center and the School until her death.

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 the depression when she retired from dancing. Protas and Graham became close friends.

In 1968, Graham assigned all performing rights of her choreographies to the Center.

In 1972 Protas became an employee of Martha Graham Center of Contemporary Dance. Although Protas had no previous dance background, Graham increasingly trusted him to represent her in both personal and professional matters. By 1975, Protas had become Executive Director of the Center and a board member of the Center and the School. In approximately 1980, he was given the title of Co-Associate Artistic Director. As Graham’s health abilities waned in the final years of her life, Protas became her spokesperson. In her last years, Martha Graham was increasingly remote. 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. The will states:

The residue [...] of all my property, real and personal, of every kind and description and wherever situated, including all property over which I may have power of appointment at the time of my death [...] and including all property not otherwise effectively disposed of hereunder [...] I give, devise and bequeath to my said friend, Ron Protas, if he shall survive me, or, if he shall not survive me, to the Martha Graham Center of Contemporary Dance, Inc. [...]

Martha Graham died in April of 1991. Her last will, executed on January 19, 1989, named Protas as sole executor and legatee, but did not specify what she owned at the time of her death. After Graham’s death, Protas succeeded Martha Graham as Artistic Director of the Center. As a heir Protas asserted ownership of the copyrights in all of Graham’s 71 choreographies. 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. The Trust licensed many of the dances and sets to various licensees.

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. As a result, the relations between Protas and the dancers of the company deteriorated drastically.

On July 15, 1999, with the principal motive of persuading Protas to resign as artistic director, the Center and the School entered into a ten-year license agreement with the Martha Graham Trust. The license agreement purported to license the ballets, sets, and costumes. The Trust agreed to give the School an exclusive license to teach the Martha Graham technique, and to give the Center 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 for the artistic director, the board voted to remove Protas as artistic director. On May 25, 2000, Protas sent a letter to Francis Mason, the Acting Chairman of the Center’s board of directors, terminating the license agreement.

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, also a not-for-profit corporation.

In July of 2000, Protas began to apply to register copyright in 40 of Graham’s choreographic works as unpublished works. 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 January 2001, the Center began to apply for copyright registration of 15 dances. In 2001, after receiving substantial funding, the Center and the School reopened.

Protas, heir of Martha Graham, sued the Martha Graham Center of Contemporary Dance and the Martha Graham School of Contemporary Dance for trademark and copyright infringement. Protas 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 August 7, 2001, the first 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. Protas forbid Graham School of Contemporary Dance to use the name Martha Graham under which they were incorporated and have operated since 1948 and 1956, respectively, and to enjoin calling what they teach the Martha Graham technique. Judge Cedarbaum held that the Center and School proved they were prior users of the trademarks and that Protas cannot preclude the Center and School’s the use of a name that they bought, used and owned prior to Protas’ registration of the trademark. Protas appealed the decision. On July 2, 2002, the second court case Martha Graham School and Dance Foundation v. Martha Graham Center of Contemporary Dance took place at the United States Court of Appeals. The court concluded that Martha Graham’s consent to Center and School’s use of her name was not a license, but was an irrevocable assignment.

Protas, legatee of the deceased choreographer’s estate then brought action against Martha Graham dance center and school which had employed choreographer, to determine ownership of copyright in dances created by choreographer, and ownership of related costumes and sets. On August 23, 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. Judge Miriam Goldman Cedarbaum held that:

[...] What property did Martha Graham, the great dancer, choreographer, and teacher, own at the time of her death in 1991? That is the central question in the second phase of this lawsuit. The main dispute is with respect to ownership of copyright in the dances she created. [...] The parties agree that during her lifetime, Graham created 70 dances that are fixed in a tangible medium of expression from which they can be reproduced. 34 of those 70 dances were created after 1956, during Graham’s employment by [Martha Graham Center], and 36 were created prior to 1956. [...] During a bench trial held between April 22 and April 29, eighteen witnesses testified in the courtroom and designations from the deposition of one witness were submitted. This trial was an effort to recapture a history that partially predated the knowledge and memory of the living witnesses. Accordingly, the few ancient documents that were produced became very important guideposts. [...] I. The License Agreement. [...] This agreement is incomplete because no “Applicable Works Addendum” was ever finalized by Protas. [...] II. Significance of Publication [...] “Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. [...] Accordingly, 26 of the [filmed] dances have been published. [...] With respect to published works, the affixation of adequate notice was the principal “statutory formality” required for copyright protection prior to March 1, 1989. On March 1, 1989, United States adherence to the Berne Convention abolished affixation of notice as a statutory requirement for securing copyright. [...] Proof of authorship may be sufficient to establish copyright ownership in an unpublished work. [...] III. Certificates of Copyright Registration [...] Both sides have procured certificates of copyright in dances described in the applications as unpublished works. Protas has 30 such certificates, and [Martha Graham Center of Contemporary Dance] 12. [...] It is undisputed that the Copyright Office has no record of any copyright registration made prior to 2000 for any of the dances at issue. [...] A preponderance of the credible evidence shows that 18 of the 30 dances registered by Protas as unpublished had been published at least seven years before the Copyright Office received any applications for copyright registration from him. [...] In 2001, the Center obtained certificates of copyright registration for 12 post-1956 works as unpublished works made for hire and certificates of copyright renewal for three published works made for hire. [...] [B]oth Protas and the Center have [both] obtained certificates of copyright registration for [... the same] eight dances. [...] With respect to dances as to which there is no evidence of publication, [Protas] has obtained nine, and [Martha Graham Center] have obtained six, non-competing certificates of copyright registration. [...] IV. Dances Created by Graham During the 35 Years that She Was Employed by [Martha Graham Center] [...] During the 35 years that Martha Graham was employed by the defendants, she created 34 dances. [...] In 1956, Graham entered into a ten-year employment agreement with the School for the position of Program Director. Her title of employment later changed to Artistic Director. [...] Graham remained a salaried employee of the Center until the time of her death in 1991. [...] It is undisputed that Martha Graham was ultimately responsible for making all final artistic decisions relating to the dances. Nevertheless, a preponderance of the credible evidence shows that she created the dances as an employee [...] [Martha Graham Center] have shown by a preponderance of the credible evidence that all of the 34 dances created by Martha Graham while she was employed by them between 1956 and her death in 1991 were works made for hire. [...] V. Works Created by Graham prior to 1956 [...] Of the 70 dances at issue, Graham created 36 prior to the time that she commenced her employment with the defendants in 1956. Of the 36 pre-1956 dances, 16 have been published. [...] Copyrights secured before January 1, 1964 are governed by the stringent renewal requirements of the 1909 Act. [...] Under the renewal provisions of the 1909 Act, the copyright term of published works ended 28 years after the date of first publication with adequate notice unless copyright was renewed in the final year of copyright protection. [...] Of the 16 published dances created prior to 1956, ten were first published before January 1, 1964 [...] Since the Copyright Office has no record of any registration prior to 2000, the evidence is clear that any copyrights secured in those ten published works were not timely renewed. Accordingly, those ten works are in the public domain, even if they had been first published with adequate notice of copyright. [...] A preponderance of the credible evidence shows that prior to 1956, Martha Graham was commissioned to create seven dances by a number of renowned musical and cultural organizations and that these dances were first performed between 1944 and 1953. [...] With respect to all of the commissioned works, no party has proved that Graham and the commissioning parties intended the copyright to be reserved to Graham. [...] There is no writing in evidence in which Graham assigned copyright in the dances to the Center. [...] In January of 1957, Graham gave all her theatrical properties to the [Martha Graham Center], but the document conveying these properties did not mention the copyright in the choreographic works. [...] A preponderance of the credible evidence shows that between January of 1957, but prior to 1965 or 1966, Graham assigned to the [Martha Graham Center] copyright in 21 non-commissioned, pre-1956 works that were unpublished at that time. [...] Documentary evidence and the credible testimony of several witnesses show that throughout the 1960s, 1970s, and 1980s, the defendants consistently acted as the owners of the ballets created by Graham prior to 1956, and that Graham did not object to such actions by the defendants. [...] Sixteen of the pre-1956 works have been published. As discussed above, ten of these works are in the public domain because of the failure to renew copyright timely,FN11 and two dances, Herodiade and Cave of the Heart, are commissioned works. The right to renew the copyright in Seraphic Dialogue has reverted to Protas. The remaining three works are El Penitente (published 1991), Errand into the Maze (published 1984), and Diversion of Angels (published 1976). Defendants’ copyright in El Penitente has been preserved because it was first published in 1991, after the permissive notice requirements of the Berne Convention Implementation Act took effect. With respect to the remaining two works, Errand into the Maze, and Diversion of Angels, there is no evidence that copyright in these works was secured upon first publication by the affixation of the required notice of copyright. [...] VI. Sets and Costumes [...] As discussed above, Graham transferred all of her then existing theatrical properties, costumes, and stage equipment to the [Martha Graham Center] in January of 1957. Accordingly, [Martha Graham Center] own[s] all of that property. [...]

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, and because there were competing certificates. The court ruled that copyrights in a total of 45 dances belonged to the Martha Graham Center of Contemporary Dance 1. The copyright in only one dance, Seraphic Dialogue, belonged to Protas’s Martha Graham School and Dance Foundation. Neither side has established ownership of copyright in 24 dances. Of those 24 dances, ten works, two of which were commissioned, are in the public domain for lack of timely renewal 2. And five dances belonged to commissioning parties who were not involved in the action 3. The remaining nine dances have been published, but neither side has shown whether any of those dances were published with adequate notice of copyright 4. Martha Graham Center was entitled to a declaration of ownership of all of the remaining sets and costumes for the dances.

Following this decision, Martha Graham School and Dance Foundation both 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 Newman held that:

[...] 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 [Protas] contend, the work-for-hire doctrine is inapplicable in view of Graham’s central role with that entity. [Protas] argues 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, [Protas] contends 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. [...]

The court affirmed the District Court for most issues in this complicated case, reversed the District Court’s determination of ownership of Acrobats of God because its renewal term belongs to Protas and vacated and remanded 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.

On June 23, 2005, the partly remanded 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 answered the remaining questions of the Court of Appeals as follows: The dance Tanagra is in the public domain. There is no distinct dance within Frescoes and there is no dance called Duets. The copyright notice appearing at the end of the Kennedy Center Honors television broadcast is sufficient to preserve [Martha Graham Center]’s copyright in the excerpt from Frescoes that was published in the broadcast. A preponderance of the credible evidence shows that the common law copyrights in the seven unpublished dances, created from 1956 through 1965, were also assigned to the Center by Martha Graham 5.

  1. 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, Ardent Song, 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, Shadows, The Owl and the Pussycat, Ecuatorial, Frescoes, Judith (created in 1980), Andromache’s Lament, Phaedra’s Dream, Song, Tangled Night, Persephone, Maple Leaf Rag, and The Eyes of the Goddess

  2. Flute of Krishna, Heretic, Lamentation, Celebration, Frontier, Panorama, Chronicle/Steps in the Street, American Document, Appalachian Spring, and Night Journey

  3. Herodiade, Dark Meadow, Cave of the Heart, Judith (I), and Canticle for Innocent Comedians

  4. Errand into the Maze, Diversion of Angels, Clytemnestra, Circe, Adorations, Acts of Light, The Rite of Spring, Temptations of the Moon, and Night Chant

  5. Embattled Garden, Episodes: Part I, Phaedra, Secular Games, Legend of Judith, The Witch of Endor, and Part Real-Part Dream