How do you own a novel? You write it down on paper. How do you own a ballet? You teach dancers the steps that have come out of your head. Ballet has rarely lived on paper. A few notation systems were attempted in past centuries, but none was particularly successful. Ballets were chiefly stored in the minds and muscles of their performers and creators. But how do you then protect and copyright a memory?
In the 18th and 19th centuries, choreographers were rated so low that it was the composer's name which usually headed the posters. The ownership of a ballet, if contested, would generally have been considered the right of the theatre. This meant, if you were a choreographer, that your ballet was fair game for the subsequent improving hands of producers acquiring it for other companies or staging it after your death. When in 19th-century St Petersburg the great ballet master Marius Petipa imported existing works into the repertoire of the Russian Imperial Ballet, he invariably imposed his own amendments. In turn, other choreographers did the same to him. Swan Lake and The Sleeping Beauty survive so barnacled with later accretions and adjustments, it is hard to determine who choreographed what. Then there were the dancers who brought their own egos to the equation and tweaked a solo here or there to show off their particular talents. When Nijinsky wanted extra limelight in Swan Lake, he inserted a solo to the Nutcracker's Sugar Plum Fairy music (the mind boggles at how it must have looked).
For most of the history of dance, not much thought was given to the tampering, or the way memories were handed down from dancer to dancer, sometimes sloppily, often subjectively, the results like ever-fainter carbon copies. In the last 50 years, however, there has been a dramatic shift in the choreographer's perceived importance, due largely to film and improved notation systems which have allowed dance to be recorded accurately and systematically. Hence the emergence of the question of copyright. The new interest in safeguarding the integrity and value of a choreographer's work has led, for example, to the establishment of the George Balanchine Foundation and the Jerome Robbins Foundation, after these choreographers' deaths.
But anomalies remain, and one has led to the Martha Graham inheritance landing up in court. It is a considerable inheritance. Martha Graham almost single-handedly invented American modern dance, a form that was to proliferate and fragment into a multitude of different stylistic categories and practitioners. She laid down the roots by forging the Martha Graham Technique, based on muscular contraction and release, out of her own body and mind. When she died in 1991, aged 96, she left a unique collection of work, produced over 70 years. For it to disappear would be an outrage. For it to survive depends on the long-serving coaches and dancers in her company-some of whom were directly taught by her-being able to continue showing her work. Survival also depends on the Martha Graham School being able to train students in her technique. The Graham case is serious because it not only addresses the problem of who actually owns the works and technique, but who has the right to perform and teach them.
By the late 1960s, Martha Graham was arthritic, anguished and alcoholic. She had created her principal roles for herself. She refused to let them go. She performed miraculously long, too long, until at last she stopped in 1968, aged 74. Her stage persona had become a legend, as with each year she became a more exaggerated version of herself, a fixed image in eastern-style tubular dress and dark, elaborately coiffed hair held by a sculptural pin like an outsize sardine-can opener. It took years for her friends to persuade her to teach her roles to others. To pass them on, even to allow them to be notated, was to admit the march of time and to draw a final line under each piece. But in being so proprietorial about her roles, Graham had, ironically, ensured the loss of many of her ballets. Less than half-about 70-have survived.
The sting in the Graham legacy insinuated itself in the late 1960s, when Ron Protas, a former law student turned photographer, started hanging around the Martha Graham company to take pictures. No one took him seriously. But when, one day, Graham's abused body finally collapsed and she was admitted to hospital, Protas was among the very few guests allowed to visit her. On one occasion, he arrived in her room alone and found her almost unconscious as she struggled for breath. She said to him: "Put me on my feet. I will not die lying down; I will not die lying down!" He dropped his bouquet of flowers and fetched the oxygen mask. From that moment, she viewed him as her saviour. The doctors told Graham that unless she stopped drinking, she would die. Protas became indispensable in her new teetotal life. He was always on hand to support her as she walked. He became her friend, nurse, adviser, business manager, factotum. He says: "Martha and I simply had fun, and people resented that." His enemies say he fuelled her paranoia. They say that faithful dancers, teachers and administrators in the Martha Graham Dance Company and School were fired or pushed; that he meddled in rehearsals, casting, and personnel, even though he had no theatrical or administrative experience. Nevertheless, he helped her off the drink and prolonged her life. In return, she named him sole beneficiary of her will.
Graham's possessions, Protas believed, included her name and her ballets. Following her death in 1991, the company didn't argue. But with Protas as artistic director and manager, assets waned to the point where he had to mortgage the organisation's main tangible possession, its Manhattan headquarters, and then sell it. Graham herself had always run things at a loss, but her iconic status and irresistible charm had always drawn in benefactors.
Protas has charm, but of a volatile kind. According to the Martha Graham Centre's executive director Marvin Preston, Protas generated turmoil. Board members resigned; benefactors closed their wallets. In 1998, the board pressured Protas to step aside. He agreed by appointing Janet Eilber, a former principal dancer with the company, as "artistic director designate"; the only snag being that Eilber was living in Los Angeles. Eventually, the board fired Protas in June 2000.
Marvin Preston, hired by Protas in March 2000 to sort out the finances, decided to suspend all company and school activities. This triggered a furore among audiences and students' parents. By then, Protas had registered "Martha Graham" and "Martha Graham Technique" as trademarks and set up the Martha Graham Trust, to hold and license the property he believed he had inherited. So when the school resumed in January 2001 to teach the Martha Graham Technique, he filed a lawsuit.
Protas is Graham's uncontested heir, but what exactly did he inherit? Last year, Judge Miriam Cedarbaum dismissed his claim of trademark infringement and in July this year turned down his appeal. The ruling says that no one owns the trademark; that the school and company have the exclusive use of the Martha Graham name in the domain of dance and teaching. That left the other part of the lawsuit to be settled, concerning the ownership of Graham's surviving ballets. Amongst the arguments was the matter of whether Martha Graham created the ballets at her own instance (the Protas position) or whether she created them as an employee of the school and company (the Graham Centre position). Protas's lawyers believed that he would be able to set up another dance company to perform the works and earn fees by licensing them to other performers. The Graham company responded with a gesture of defiance. On 9th May, they re-opened for a single performance in New York titled "Indisputably Martha Graham." Had they lost, the evening would have placed them in breach of copyright.
They didn't lose. On 23rd August, Judge Cederbaum once more found in the Graham Centre's favour (Protas's lawyers have said they intend to appeal). They won clear rights to 45 ballets, among them several of Graham's signature works. Protas was given ownership of just one ballet, Seraphic Dialogue; while ten others were found to belong to the public domain and can consequently be performed by any company without licensing or artistic supervision.
This is not the first case of its kind. In Britain, the choreographer Antony Tudor devised Dark Elegies in 1937 for Ballet Rambert. But 53 years later, there would be a protracted tussle between Rambert and the Tudor estate over it. Because he had gone on to stage other, glossier productions of Dark Elegies for other companies, the Tudor estate argued that these later versions were more accurate. Rambert contended that the piece was choreographed at a time when it was accepted for companies to claim ownership and that Tudor had never challenged this arrangement in his lifetime. The case was finally settled out of court with a compromise allowing the Rambert version a limited number of performances.
Who should a work of choreography belong to? In the Graham case, it is fairly clear that her dance company is best qualified to ensure the survival of the ballets. Despite his protestations, Protas himself never had much real knowledge of Graham's work. Under his control, it risked the fate of another choreographer-Leonide Massine-whose legacy was hacked about by his son Lorca and his productions are now excluded from most company repertoires.
Should a choreographer's wishes be paramount? Should, for example, Balanchine's horrifyingly truncated Apollo-an old man's afterthought-be allowed to override his glorious 1928 original? Fortunately, the Balanchine Foundation exercises flexibility when it comes to the different versions of many of Balanchine's ballets, while still ensuring rigorous standards. Some choreographers fear that a ruling in favour of the Graham Centre sets an American precedent weakening their independent ownership. Certainly, it is problematic; but the very intensity of the Graham case demonstrates the status of the choreographer on an historical high.
Litigation over creative ownership is always painful, but when it involves dance it is debilitating, because, despite notation, dance still depends on performance and fresh memories to stay alive. For over two years, the Graham repertoire was hidden from view and fading from public consciousness. (In the decade before that, it had received only limited performances because of the financial struggles of the Protas regime.) During those two years, the only dissemination of Graham's work was through one Richard Move, a six-foot-four drag artist, whose cabaret compilation of Martha lore and dance brought to life her glossy chignon, her dramatic robes, her grandiosity. The Graham Centre smiled indulgently and called it affectionate parody. The rival litigious camp could do nothing because, as parody, it was not infringing any copyright. Dance may subsist in memory, but it is vital to experience and, perhaps, even own the real thing.
