Jennifer Dunning writes in the NY Times:

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Isn't the issue of ownership of the dances important and shows up the need to address the whole issue of copyright for choreography?

Most new dance companies start with a choreographer who wants to show work. The individual is soon forced to form a company, a legal entity, and appoint a board of directors. At this point (according to the Graham/Protas ruling) the individual choreographer loses the right to their own choreography as they are now an employee of this new legal entity.

Copyrighting choreography made with the company should be unambiguous and the right should always remain with the choreographer. An composer who is commissioned to write a new opera does not give over the rights to the opera company so why should a choregrapher be any different. Moreover the class accompanist in the dance company (who is an employee of the company) who writes a score for a dance retains the right to perform his/her music whereas the choregrapher doesn't!

The ruling has opened a very very large can of worms.

Hi all,

This is a time of joy for all of us who fought for more than last two years to keep the Graham legacy alive.
How better to celebrate than to go back to work? It is really happening. Graham Company is again going to be AGMA (union) company and we are all back working in October.
First time you will be able to see this "new" company is New York season at Joyce Theater (Jan 20-Feb 03). The program is both very challenging and extremely rich.
There are works for tour in Europe in summer and South America in fall to follow.
So thank you for all your support. It is time to open a new chapter of this book, hopefully even with much more to celebrate.

IT Crit, your preferences may be overly rigid and dogmatic.

When someone works for an organization as an and makes intellectual property, the ultimate ownership of that property is an issue that can be spelled out either way in the employment contract. I have seen it go both ways, depending on the needs and circumstances of the parties involved.

In this case, the ruling undoubtably relied on details of Graham's relationship with the Graham Center that were likely not well thought-out at the time with respect to legal copyright. But in the court of law, they suddenly became important, the law was applied, and a verdict rendered. The same laws were applied in this case, I believe, as would have been applied to any similar intellectual property case in any industry.

<small>[ 09-12-2002, 11:39: Message edited by: citibob ]</small>

I have to agree with you wholeheartedly IT Crit, the issue of Forsythe's ballets created at Frankfurt belonging to the organization are another example of ownership that really rankles me.

<small>[ 09-12-2002, 11:39: Message edited by: Marie ]</small>

Look at it from the other point of view. New choreography is expensive. Suppose that a choreographer works for 2 organizations.

Organization A commissions a new work. New choreography is expensive; say it costs $100,000 for rehearsals, etc over the course of the first season. for this new work. Organization A has paid its $100K

Now Organization B wants to produce the (now not so new) work, having decided it's not a dud. Since the choreography is already complete, it will cost less to produce; say, $50,000. Shouldn't Organization B compensate Organization A in some way for the financial risk and extra expense it went to to produce the new work for the first time? Otherwise, B would simply be freeloading.

Why would an organization wish to commission a new work if it gets nothing in return for its efforts? Why not just wait until someone else has commissioned something that turns out to be good, and then ask that choreographer to come over and set it on your dancers?

I'm not saying that choreographers shouldn't retain any property rights. But rights can be, and often are, shared; and the organizations who pay the money to produce intellectual property should certainly retain some rights, IMHO.

The same logic applied to Hollywood would have Steven Spieleberg owning all rights movies he makes, beyond revenue obtained from the first-run theaters. Applied to Broadway, it would have Garth Fagan owning all rights to the Lion King show.

An music organization has to put up a lot less $$ to commission a new score, than a dance organization must to commission a new dance. For a new score, you only have to pay for the composer's time. Once the score is finished, the orchestra must put in only marginally more time to play it than it would to play an old score.

For new choreography, you usually have to pay for the choreographer, a bunch of dancers, and significant studio space. It's very expensive.

That's why, I would expect, orchestras would be more willing to commission new works without retaining rights to them.

<small>[ 09-12-2002, 12:02: Message edited by: citibob ]</small>

Yes, choreography is expensive. Yes, the commissioner should be compensated for the initial investment (maybe in the form of a license for 5 years). But ultimate "ownership" must lie with the person who created the work. They created the work, took the risk for critcal acclaim or rejection, so they must retain rights - just like the composer.

I agree that compensating the inital investment is morally correct. But where do you stop? Would the NEA or an Arts Council be able to claim ownership of dances that it funded?

The answer to where I stop is somewhat of a non-answer: "wherever negotiations lead." To me, that is a question to settle, on a case-by-case basis, between the choreographer and the organization. Depending on the amount of funding involved, the fame or lack thereof of the choreographer, etc, some choreographers will end up with a larger or lesser share of rights to their work.

As for government funding? Government is in an interesting and unique position of funding things without maintaining intellectual property rights to them. That is true in science, and in art as well.

Consider the example of a researcher at a university, who develops and patents a new cancer drug with Government funding, then sells the rights to a pharmaceutical company for many $$. The researcher and university ulitmately end up sharing rights to the patent and royalties, according to terms agreed upon at the time of employment. The Government gets no share. It is assumed that the public good has been served by public money: 17 years later, the patent will run out, and the drug will become widely and cheaply available to all.

Actually, I suspect that choreographers in the non-profit world end up with, on average, more rights to their work than their for-profit counterparts. In the for-profit world, organizations are MUCH more aware of the possible dollar value of the work, and more likely to negotiate a piece of it.

In many cases, as with Graham, the choreographer was inseparably linked with the organization; it therefore did not matter so much (during her lifetime) whether Graham or the Graham Center owned the rights to her work. Graham herself still maintained a large degree of control.

I think it's therefore important that a founder and artistic director insist early on that he/she is a permanent member of the board, and cannot be fired from post as artistic director. People coming on later, or giving money to the organization, would know this and would base their decisions accordingly; they can always go elsewhere. I once saw a founder get ousted, and it was very ugly scene.

I still think that the legal precedent is there. Graham hasn't lost out because she is now dead but the case was settled on the basis that she was an employee of the company. This company structure - with its guarantees of limited liability - is the legal footing that choreographers are forced into once their funding reaches a certain point. This protects the public money invested in the work but the company structure does absolutely nothing to protect the choreographer because of the absolute mess around the issue of copyrighting choreography.

Having a place on the board (even a permanent place which I know might contravene some European company laws) is little comfort if the numbers are stacked up around you at the board table.

The example of a scientist developing a patentable product might seem an apposite example, but we should be looking at the protection that other artists have - composers, designers and writers - and using that as our yardstick. Choreographers are still losing out.

I believe that art is an integral part of the larger cultural context, not divorced from it. For that reason, I see the scientist example as relevent. Maybe more relevant than the example of the composer and writer because of the expensive group effort required for choreography and science but not so much for writing and composing.

In any case, I find this issue rather ironic. In one sense, Graham could be said to have lost out in this case. And yet, were she alive today, I suspect that she would be pleased with the outcome. After all, the verdict says that the company she founded, filled with dancers she trained, is allowed to continue performing her works. The alternative scenario, the one in which she would have "won", would have involved the dismemberment of her company, the loss of repertoire, and the ultimate witholding of her art from an entire generation. I just cannot imagine she really would have wanted that.

I felt truly lucky to see the Graham show last spring.

Tadej--thanks so much for your input. It truly is a delight to have your updates, from the Graham Company perspective, that is!! What a joyous premiere it will be, to see those grand works once again!!!

Part of this discussion continues on this thread:

Chroeographer's & their Works: Inseparable?

Please continue to post here about the Graham Company.

<small>[ 09-20-2002, 05:48: Message edited by: Stuart Sweeney ]</small>

Thanks Basheva, for moving those posts for me,,,the great "technologically challenged one". Feel free to continue to discuss the Graham case here in this thread. If you are interested in participating in a discussion on the legal/artistic issues of choreographers, their works, ownership, etc., please follow us into the thread mentioned above!!!

Graham dancers end boycott

<img src="http://www.het-nationale-ballet.nl/new/images/play/newyorkmeesters.jpg" alt="" />
<small>"Acts of Light" from the lovely Dutch National Ballet's website</small>

Another step marking a return to normal for the Graham legacy. One key event in this contaxt is Dutch National Ballet's performance of Graham's "Acts of Light" scheduled for March 2003.

PRESS RELEASE

September 18, 2002 (New York) In light of the United State Federal Court
decision of August 23, 2002, we, the dancers of the Martha Graham Dance
Company, officially rescind our request of fellow artists around the world
to refrain from licensing or performing the works of Martha Graham.

We celebrate the ruling issued by the Honorable Miriam Goldman Cedarbaum of
the Southern District of New York who decreed that the Martha Graham Center
is the rightful owner of almost all of the ballets, sets, and costumes
contested during the latest trial between the Martha Graham Center and Ron
Protas. This long-awaited ruling establishes the rightful ownership of the
ballets, sets and costumes and thus clears the way for the Martha Graham
Dance Company to continue to perform the works of Martha Graham as it has
done for over 75 years.

The problems that existed between Ron Protas and the Center over the years
were very difficult for us. When the Center voted to suspend operations on
May 25th 2000 and Mr. Protas revoked the then existing licensing agreement,
we had no option but to ask the international dance community to support us
in our efforts to prevent the performance of Ms. Graham's works until the
ownership issue was settled. We are most grateful for all of those
individuals and institutions that have supported us during this extremely
difficult hiatus. Never before in the history of dance in America has such
a monumental struggle taken place to preserve the work of such a great
artist. The efforts of so many, including the superb and highly skilled
legal team of Cravath, Swaine & Moore, supported and sustained us and were
extremely instrumental in the process which has led to this landmark ruling.

The victorious ruling last year granted the Martha Graham Center the right
to use the name Martha Graham and to teach the world-renowned Martha Graham
technique. This permitted the Center, as well as the Martha Graham School
of Contemporary Dance which had reopened in January of 2001, to continue its
operations. Despite that victory, the Martha Graham Dance Company was
unable to perform the ballets of Martha Graham, with the one exception of a
single performance on May 9, 2002, until the ownership issue was resolved.
Now, this profound ruling unquestionably frees the company from further
obstacles to continue its mission.

Other than the May 9, 2002 performance at City Center in New York, the
company has not performed for over two years. That sold-out performance was
a clear reminder of the significance of the work of Martha Graham, and the
upcoming New York Season at the Joyce Theater starting January 21, 2003 will
pave the way for the company's continued existence.

This situation and all the rulings are precedent setting. We are most
honored now to be able to continue to do our destined work. We, as well as
all the many generations of dancers from this company, all of whom are
uniquely trained in the technique and aesthetics of the Graham theater, are
poised to meet the many challenges that lie ahead in order to ensure the
future of the Martha Graham Dance Company and the works of Martha Graham.

We, the dancers of the Martha Graham Dance Company, wish to convey our
deepest gratitude to the international arts community and those from various
professions and organizations who have supported us over these past
difficult years.

Now, on to the future.

The Dancers of the Martha Graham Dance Company:

Elizabeth Auclair
Tadej Brdnik
Terese Capucilli
Jennifer Conley
Katherine Crockett
Christine Dakin
Erica Dankmeyer
Carrie Ellmore-Tallitsch
Gary Galbraith
Whitney Hunter
Christophe Jeannot
Kim Jones
Martin Lofsnes
Catherine Lutton
Maurizio Nardi
Virginie Mecénè
Miki Orihara
Alessandra Prosperi
Fang-Yi Sheu
Heidi Stoeckley
Yuko Suzuki
Kenneth Topping
Blakely White-McGuire
David Zurak

<small>[ 09-23-2002, 13:14: Message edited by: Stuart Sweeney ]</small>

Lewis Segal worries about a different problem of the Graham legacy:

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