Archive Page Design
Click here to go to Balletco's new home page and site navigation

About the Change

Martha Graham Court Case

Martha Graham Center wins the legal rights to many of its founder’s works.

by Brendan McCarthy

Picture comes from, and is linked to, the Library of Congress Martha Graham collection

Trial Judgement

Who owns Martha Graham’s work?

Court hears competing claims to Martha Graham’s ballets

Martha Graham Center statement

NY Times on legal issues

Julie Van Camp on choreographic copyright

Graham Company Reviews

The bitter court case over the ownership of Martha Graham’s ballets has ended with a substantial win for the centre and school that bears her name and a comprehensive defeat for Graham’s heir and late life confidante, Ron Protas. Of the seventy works at issue, Judge Miriam Goldman Cedarbaum decided that Protas owned only one. Most of the ballets were deemed to belong to the Graham School and Centre in New York. Several ballets, including Graham’s most renowned work, Appalachian Spring, are no longer protected by copyright and are in the public domain. It, together with a number of other works, can now be performed without either license or artistic supervision. The ownership of another Graham classic, Clytemnestra, is still unclear.

The background to the case is Graham’s late-life relationship with Protas, then in his twenties, who was trying to make a career as a photographer. During the 1970s Graham was drinking heavily and suffering from arthritis. Protas, whose mother had recently died, came to regard Graham as a surrogate parent. He made himself indispensable to her, becoming initially her full-time nurse and secretary. With no artistic background he began to meddle in artistic decisions, alienating most of Graham’s colleagues. He became her spokesperson and the board of Graham’s dance company was left in no doubt that he was representing her wishes. After her death, she left him such property as she owned in her will. It was a simple will, hurriedly made. While it might have been perfectly adequate for a small family estate, it did not investigate crucial questions of intellectual ownership.

In the years after Graham’s death, Protas was in unquestioned control of the Center and School. Members of the board were appointed and removed at his whim. He had little difficulty in persuading weak and pliant directors that Graham had left him all her works and property. Lawyers advised Protas to investigate what the estate actually owned. According to the judgement, he ignored this advice, exploited others’ uncertainties and used his position to lay a false paper trail, rewriting board minutes when necessary. In this way he attempted to make it appear that Graham had legal ownership of dances and properties, when, as it is now adjudged, she did not.

Why Martha Graham was an employee

Establishing the facts was complicated by the reality that crucial events predated the memory of living witnesses. They had to be reconstructed from old board papers and important documents were missing. Despite this it was possible to infer from such papers as did exist, and from the memory of former board members, that Martha Graham had been an employee of the Center, that she had received a salary, but that, crucially, she had never been paid royalties for her work. This meant that Graham’s choreography had the legal status of ‘work for hire’, in other words, that Martha Graham had created her ballets as an employee of the Martha Graham Center. While the board did not interfere with artistic decisions, it had the legal authority, as her employer, to ensure that dances were created at their “instance”. The board also set spending limits and licensed the use of the dances by others. On the basis of this evidence, Judge Cedarbaum ruled that the board owned Graham’s work in the years she was an employee - and not Graham herself. Her ballets were not hers to leave to Protas. Neither had he rights to Graham’s work prior to 1956. Judge Cedarbaum found that Graham had transferred her rights to the Center that year.

Protas criticised

The judgement is scorching about Ron Protas’s behaviour. It describes Protas as “not a credible witness”, who gave “evasive and inconsistent testimony.” The ruling shows that he took Graham’s will and his position as director of the Graham Center as a charter for self-aggrandisement, freely helping himself to bonuses and loans. On behalf of his personal trust he sold various documents to the Library of Congress for $500,000. He claimed not to have known that Graham had donated many of the documents to the Center in 1969. Judge Cedarbaum also found that Protas had deliberately misled the American copyright authorities. He attempted to register copyright to himself of a series of Graham works, representing works as unpublished when the reality was otherwise. The judgement also found that some of the Graham Center’s property was unlawfully in Protas’s possession. The ruling criticises his behaviour in severe language.

“Protas profited improperly at the defendants’ expense and did not act “with an eye single to the interests” of the defendants to whom he owed a fiduciary duty. In failing to undertake a thorough investigation regarding what he owned, concealing his uncertainty about Graham’s copyright ownership at the time of her death, and affirmatively representing to the board that “he owned everything,” Protas failed to exercise the degree of diligence, care and skill required of directors and officers of not-for-profit corporations. Protas violated his duty of good faith and profited improperly at defendants’ expense. Protas, a longstanding fiduciary of the Center, enriched himself unjustly by grasping what did not belong to him. Protas had a fiduciary duty not to appropriate to himself corporate opportunities that might belong to the defendants.”

In addition to her ruling on the ownership of Graham’s dances, Judge Cedarbaum also ordered that Protas should return $180,000 to the Graham Center. Some of this was the proceeds that came from the sale of her records to the Library of Congress and the rest from licensing Graham’s work. Importantly, all sets and jewellery, designed by Graham’s distinguished collaborator, Isamu Noguchi, for works prior to 1957 was awarded to the Center, with the ownership of post-1957 material remaining undecided.

Implications for choreographers’ rights

The Martha Graham Center predictably welcomed the ruling, resolving to put this “very difficult chapter” behind it. Judd Burstein, Ron Protas’s lawyer, said there would be an appeal. In his view the judgement meant that Martha Graham had been “nothing more than a hired hand of the foundation that had been created to serve her needs.” He said other choreographers should be ‘quaking in their slippers’ at the implications.

In reality the judgement is unlikely to establish any major precedents for other choreographers’ control of their work. Martha Graham was relatively uninterested in the fate of her dances after her death and her will is uncomplicated in its structure and language. George Balanchine, in contrast, had sophisticated legal advice from an attorney who was well aware of the implications of the 1976 law that extended copyright protection to dance works. His complex will left explicit instructions for the transmission of his choreographic legacy. Importantly, Balanchine had not taken a salary from New York City Ballet until 1964, accepting only modest royalties.

While choreographers will draw lessons from the Graham case, Balanchine offers the more useful precedent. The choreographer Paul Taylor told the New York Times he was ‘untroubled’ by the decision and he will be leaving his dances to the company he founded. However other choreographers are paying heed to the lesson from Graham that choreographers and commissioners alike need to document explicitly the ownership of the rights to works created.

The challenge ahead

Retrieving the fullness of Graham’s legacy will prove an uphill task. In his time as director Ron Protas estranged many of Graham’s veteran performers, the very people who knew her works in their bones. Throughout the 1990s, as the company sank further into financial decline, it performed less and its seasons became progressively shorter. Robert Greskovic, the Wall St Journal’s critic, is damning in his indictment of Protas’s direction of the Graham Company. “His choice and preparation of dancers remained dubious at best, at times revealing performers of skin-deep skill. Similarly, the emphases he deemed appropriate for illuminating Graham's emotionally charged and physically sharp dance language often rang hollow, with desperate play-acting cheapening thrilling Graham theatrics.”

The company lacks an artistic director and its attention has been consumed by the court case. As it prepares for its forthcoming season at the Joyce Theatre in New York, today’s dancers will be relying on the memories of the ageing generation of Graham’s contemporaries, as they attempt to retrieve Graham’s work in its freshness and its originality. It will require artistic direction of exceptional quality to chart the path ahead.

{top} Home Magazine Listings Update Links Contexts
.../sep02/bmc_martha_graham.htm revised: 8 September 2002
Bruce Marriott email, © all rights reserved, all wrongs denied. credits
written by Brendan McCarthy © email design by RED56