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By Paul Ben-Itzak
with Darrah Carr
Copyright 2002 The Dance Insider

NEW YORK -- The Martha Graham Center owns copyrights to 45 of the ballets created by Martha Graham, Ron Protas owns one, and ten are in the public domain, a Federal judge ruled Friday, in a landmark decision that saved Modern Dance's greatest legacy by placing it securely in the trove of the Martha Graham Dance Company.

"I am elated," an ebullient Marvin Preston, the Center's executive director, told the Dance Insider Friday. "This is an overwhelmingly positive outcome for us."

Protas, the Center's former artistic director, had sued the center -- which comprises the dance company and the Graham school -- over ownership of 70 ballets created by Graham between 1926 and her death in 1991. In ruling against him, Federal District Court Judge Miriam Goldman Cedarbaum also declared ten of the dances -- including the 1944 "Appalachian Spring," perhaps Graham's best-known work, and the 1947 "Night Journey" -- as belonging in the public domain, and five as belonging to individual commissioning organizations. For nine of the ballets, including the 1947 "Errand into the Maze" and 1948 "Diversion of Angels," she ruled that neither side had shown whether these dances were "published" (normally, as videos or films available to the public) with adequate copyright notice included.

The dances awarded to the center range from the 1931 "Primitive Mysteries" to the 1991 "Eyes of the Goddess," and also include "Deep Song" (1937), "El Penitente" (1940), "Letter to the World" (1941) and "Embattled Garden" (1958). Protas owns the right to the renewal copyright for the 1955 "Seraphic Dialogue," Cedarbaum said, although the center owns the Isamu Noguchi scenery. The dances owned by individual commissioners are "Herodiade," "Dark Meadow," "Cave of the Heart," "Judith (1950)," and "Canticle for Innocent Comedians."

"They're not a problem," Preston said of these five works. "The people who commissioned those pieces wanted Martha Graham and her dancers to dance them. We consider all those people friendly."

The center had claimed that because Graham was its employee, dances she created while she had that status from 1956 to 1991 were 'work for hire' and belonged to the center outright. The judge agreed, citing numerous precedents in her 110-page decision.

"Work for hire applied to some of the dances because Martha Graham wanted it to," Preston explained. "I.e., with full knowledge of the consequences, she created the organizations that exist today and chose to create her works as an employee knowing that doing so would give ownership of those works to the Center/School."

The center also claimed, and the judge agreed, that Graham assigned it the copyrights to an additional 21 works created prior to 1956, including "El Penitente," "Primitive Mysteries," and "Letter to the World."

To make its case, the center relied in part on a handful of documents. "The few ancient documents that were produced," Cedarbaum wrote, "became very important guideposts" in a trial that was "an effort to recapture a history that partially predated the knowledge and memory of the living witnesses."

Key among these documents was a September 1968 letter from center Administrator LeRoy Leatherman to the Netherlands School, denying a request by the late Benjamin Harkarvy, the school's director, to perform specified Graham dances:

"Recently Miss Graham assigned performing rights to all of her works to the Martha Graham Center of Contemporary Dance, Inc." Leatherman wrote, "...and the decision to grant such rights rests now exclusively with the center's board of directors." In 1971, responding to a request by the Netherlands Dance Theater regarding rights to perform Graham works, Leatherman wrote that the choreographer had "assigned all rights to all of her works to the Martha Graham Center, Inc."

The judge was also swayed by the testimony of former Graham treasurer Edmund Pease, who in 1974 undertook a thorough study of commingling assets belonging to the center and to Graham, "with," wrote the judge, "the purpose of determining what belonged to whom. According to Pease, his examination of documents dating back to 1948 revealed that dance royalties had been paid to the (Graham) Foundation/Center and that the Center had born the expense of creating the sets and costumes. The study's final report concluded that the Center's assets included the dances, sets, and costumes, and recommended that these items be carried on the Center's balance sheet as assets at nominal value."

Pease, wrote the judge, "was a forthcoming and credible witness at trial."

In her decision yesterday, Judge Cedarbaum also found that the center owns all Graham sets created by Isamu Noguchi prior to January 15, 1957 and all jewelry for the same period, and directed Protas to "return to the defendants (the center) the costumes and artworks identified by the defendants as in his possession." In addition, she ruled, the Center is entitled to recover from Protas $180,000 in licensing fees and Library of Congress sales proceeds, plus interest.

As she did in an earlier stage of the trial, denying Protas's claiims to the name "Martha Graham" and the term "Martha Graham technique," Cedarbaum found his credibility wanting.

"After listening to his evasive and inconsistent testimony and observing his demeanor," she wrote, "I again find Protas not to be a credible witness."

But some observers had warned that regardless of what one thinks of Protas, to whom Graham's last will left everything she owned, a victory by the Center would pose a threat to all choreographers' rights to their own work. Not so, insisted Preston.

"This is no threat to any choreographer," he said, "since a one-line agreement to the contrary can be entered into by a choreographer and his board or his company."

At presstime, Protas's lawyer, Judd Burstein, could not be reached for comment.

The 45 Graham ballets to which the judge awarded copyright ownership to the center are:

"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 Though 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."

Ownership of the renewal copyright to "Seraphic Dialogue" reverted to Protas as the executor of Graham's estate.

The judge found that for 24 of the disputed dances, "neither side has established ownership of copyright." These include ten works in the public domain, meaning that now anyone can perform them: "Appalachian Spring," "Night Journey," "Chronicle/Steps in the Street," "Lamentation," "American Document," "Heretic," "Flute of Krishna," "Frontier," "Panorama," and "Celebration."

Individual commissioners own the copyrights for the five works already named above. The remaining nine works, the judge found, have been "published" in film or video form available to the public, but "neither side has shown whether any of those dances were published with adequate notice of copyright." Those dances are "Errand into the Maze," "Diversion of Angels," "Clyttemnestra," "Circe," "Adorations," "Acts of Light," "The Rite of Spring," "Temptations of the Moon," and "Night Chant."

At presstime, it was unclear how or whether the judge's finding would affect the company's ability to perform these dances.

Speaking of the Moon, Protas had also sought recovery of several items he claimed were his and that he alleged the center to have in its possession, including three Chinese moon viewing chairs which used to follow Graham around on tour and to speaking engagements. He also claimed the center had Graham's vicuna throw rug, Max Waldman photos given to Graham, a Tibetan lama statue, four trunks of his personal papers and clothing, benches designed for Graham by Noguchi, and several other items which he said belonged to him.

For all of these items, Cedarbaum ruled, Protas failed to establish his ownership or even that he knows for sure the center has them.

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