Martha Graham is well known for her modern dance technique, choreography, sets, costumes, jewellery and other creative work, and she is today a legend in dance circles. Her unique technique and style is referred to as Martha Graham Technique or Graham’s Technique after her name. Martha Graham was quite protective of her creative work, and allowed very few dance companies to perform her choreographies during her life time. In her effort to finance her creative work and promote/disseminate her technique/style, Martha Graham formed Martha Graham Center of Contemporary Dance (“Centre”) and Martha Graham School of Contemporary Dance (“School”). Both of them had the same set of directors, and the Center along with other non-profit organisations funded her work.

Martha Graham’s Employment

In 1956, Martha Graham entered into a part time employment agreement with the School as program director. The contract required her to dedicate one third of her time to the School for a period of ten years. Her responsibilities included teaching dance and overseeing educational programs of the School. When the contract expired in 1966, Martha Graham was appointed as the Artistic Director of the Center and School, and was required under the contract to create dance work and monitor/manage performances. She continued in this position until her death in 1991.

Martha Graham’s Will

Martha Graham developed a close relationship with Ronald Portas, a photographer, to whom she decided to bequeath her rights and interests in her dance works, musical scores, scenery sets, personal papers and her name. Towards this end, she executed a will in his favour. After Martha Graham’s death, Portas was appointed the Artistic Director of the School. In 1998, Portas set up the Martha Graham’s Trust (“Trust”) and later Martha Graham School and Dance Foundation (“Foundation”). He vested all copyrights in Martha Graham’s works acquired through the will in the Trust. He granted an exclusive license to the Center to teach Martha Graham’s Technique along with a non-exclusive license for live performances of her works.

Dispute over Martha Graham’s Works

Ronald Portas served as the Artistic Director of the Center after Martha Graham, and when he wanted to leave, a dispute arose about who should be appointed next. That led to a conflict, and both the Center and the Trust obtained copyright registrations for the same dance works of Martha Graham. Ronald Portas filed a suit before the Court of Southern District of New York asking the Court to enjoin the Center and the School from using Martha Graham’s trademark, teaching her technique, and performing her choreographies. He also sought a declaration from the Court that the Trust owned all rights over Martha Graham’s dances, sets, jewellery, costumes, etc. The Center contested the Trust’s ownership, and claimed that it owned the works.

Martha Graham’s Copyright and Trademark Ownership

After reviewing the facts, the Court held that the Center owned copyrights over choreographies with respect to 45 of Martha Graham’s dances as they were made during her employment tenure with the Center and the School. Applying the work for hire doctrine, the Court concluded that all copyrights in the dance works created by Martha Graham during her course of employment belonged to the Center and not the Trust as claimed by Portas. It stated that only one work belonged to Portas and the Trust by virtue of Martha Graham’s will. The Court further held that ten of Martha Graham’s works were in the public domain, nine were not published with appropriate notices, and copyrights were not reserved with respect to five works. The Court also held that the Center held rights with respect to use of Martha Graham’s name and trademarks.
On Appeal, the Court of Appeals for the Second Circuit (“Second Circuit”) affirmed a majority of District Court’s findings. However, with respect to works created during Martha Graham’s employment as a part time employee and a couple of other works, the Court remanded the case to the District Court to determine ownership once again in line with its directions. The Second Circuit also held that Acrobats of God dance copyright vested with Ronald Portas and the Trust.
Following the remand, the District Court of the Southern District of New York came to the conclusion that the Center owned the copyrights with respect to Martha Graham’s copyrights during her employment as part-time employee as well as common law copyrights assigned by Martha Graham after she established  the Center. On appeal, the Second Circuit affirmed this judgment of the District Court. The Supreme Court refused to hear the case, putting an end to this IP ownership battle. As it stands today, the Center and School set up Martha Graham own IP over most of her works.

Conclusion

Different facets of dance, ranging from the dancer’s name and technique/style to her choreography, sets, costumes and jewellery can be protected   under different forms of IP. The protection will not only provide a dancer the much needed recognition  of her work, but will also provide a dancer the opportunity to  control the use of her work and gain commercial benefits. However, if ownership of dance work, transfer of rights and licenses are not clearly laid out, the dancer may not be able to take advantage of her IP rights. In today’s dance culture, where most dance work and performance  works on word of mouth, dancers may not find themselves in the most suitable position to  own and assert their IP rights and gain financial benefits from their creative work and performances. Like in the Martha Graham’s case, dancers may not hold IP rights they think they hold and may not be able to control/commercialise them as they wish.

Reference

Martha Graham School and Dance Foundation, Inc., and Ronald Protas, Individually and As Trustee of the Martha Graham Trust, Plaintiffs-counter-defendants-appellants, v. Martha Graham Center of Contemporary Dance, Inc., and Martha Graham School of Contemporary Dance, Inc., Defendants-counterclaimants-appellees, US Court of Appeals for the Second Circuit – 455 F.3d 125 (2d Cir. 2006) if they do not appropriate steps to protect and manage IP rights in their dance works.


INTELLEPEDIA IP SEMINARS

Dancing with Intellectual Property

From dance choreography and settings to dance music and costumes, various aspects of dance can be protected as intellectual property. Protecting dance sequences and moves, videos and music, sets and costumes, personality attributes and names, and social media presence can help dancers commercialise their creative work and prevent its misuse.
Aimed at dancers, this specially designed session helps dancers understand how to protect their creativity and movement art. It provides insights into how their work can be commercialised, and what steps can be taken to prevent infringement of their work online and offline.

Faculty

Dr. Kalyan C. Kankanala
The session will be led by Dr. Kalyan C. Kankanala, a reputed entertainment law attorney in India. He has over the years provided IP consultation and advisory services for several performers, artists, authors and musicians.
Register here – https://www.townscript.com/e/dancing-with-intellectual-property-222404
 

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