In an earlier post, I reviewed the Martha Graham copyright case and discussed how the outcome resonated in the dance field. In this post I'll look at what choreographers are currently doing to cope with the result.
First a very quick recap: In 2002, a court found that Martha Graham did not necessarily own her own choreography. Instead, dance pieces that she created as an employee of the Martha Graham Center of Contemporary Dance were owned by the Center. This was relatively shocking news to the dance field, especially for choreographers who had generally operated under the assumption that they owned their own work.
In January 2007, the NYTimes published an article (registration required) exploring some of the options available to choreographers for preserving their work after death. The article looks at choreographic icons, Paul Taylor and Merce Cunningham, each of whom began his career dancing with the Graham Company, began choreographing in the 1950s, currently heads his own company, and is now seriously considering what will happen to his works and company after death.
For those who don't know, both the Paul Taylor Dance Company and the Merce Cunningham Dance Company are single-choreographer companies. This means, for example, that the Taylor Company's repertory consists solely of work choreographed by Mr. Taylor. Likewise for the Cunningham Company. Contrast this with companies like the Alvin Ailey American Dance Theater and the LimÃ³n Dance Company, both of which are multi-choreographer repertory companies, meaning that each company's repertory includes works by a variety of choreographers, and not just the founding choreographer.
When faced with the challenge of determining the ownership of their works and what to do with them after death, both Mr. Taylor and Mr. Cunningham had more than just the Martha Graham episode as an example of what can happen when ownership isn't clear. As the article quickly reveals, some iconic choreographers, such as Lester Horton and Erick Hawkins, have died without leaving wills. JosÃ© LimÃ³n, whose company is often credited as the first modern dance company to survive the death of its founder, had a will, but it did not mention his choreography. After his death, Mr. LimÃ³n's dances were divided up and ownership rights were granted to several different people. Eventually, the works were sold back to the JosÃ© LimÃ³n Dance Foundation. Alvin Ailey's will left his dances to his mother and the rights to his name to his step brother. The Board of Trustees for the Alvin Ailey American Dance Theater eventually bought those back. While these two companies were spared the expense and headache of a legal dispute over ownership, they were not spared the potentially prohibitive cost of re-purchasing the rights to the choreography.
Perhaps a more well-known story is that of the choreography of the great George Balanchine, founder of and choreographer for the New York City Ballet. When Balanchine passed away, he left his work (some 400+ ballets) to a number of former dancers. An out-of-court settlement gave control of the rights of the works to the Balanchine Trust, and prevented a potentially lengthy and most-certainly expensive court battle. The New York City Ballet continues to perform Balanchine's work and the Trust now licenses the works to other companies wishing to restage them. In an effort to preserve the artistic integrity of the dances, the Trust generally licenses works only to qualified companies, sends “Balanchine-trained repetiteurs” to stage the work (a perfect example of the dance field's use of older, experienced dancers to pass choreography onto younger dancers), and requires periodic reviews of the productions.
With these lessons in mind, and the knowledge that a company's survival after the death of its founder is far from guaranteed, Paul Taylor and Merce Cunningham turned to the difficult task of solidifying current ownership of their choreography and determining the fate of their works and companies. As with many art forms, a dance has multiple parts. The often complex task of determining ownership only begins with the choreography. And this first step has its own complications. For examples, companies that have existed for decades may not have a clear paper trail for early works. Additionally, early works may pose another problem in that choreographers are unlikely to have been paid, even by their own companies, for dances created early in their careers. This muddies the “works for hire” parallel that determined ownership in the Martha Graham case.
As I discussed previously, other issues may arise when works are commissioned by other organizations. Here, it may be unclear whether the commissioning organization, the choreographer, or the choreographer's company owns the works. It can be especially confusing if one work is commissioned by more than one organization, and/or funded in part by the choreographer or the choreographer's company (as is almost always the case, given the expense of making a dance).
Once the ownership of the choreography is determined, the next step is to solidify ownership of the music, costumes, sets, and any other components of the work (lighting, text, video, props, etc.) This can mean chasing down all sorts of things, people, organizations, etc. The chase can be especially long and frustrating for early works where record keeping is likely to have been less than perfect.
With that noted, back to Mr. Taylor and Mr. Cunningham. As the article reports, Mr. Taylor selected the works he wanted copyrighted in his name. The Executive Board of the Paul Taylor Foundation formed an intellectual property committee to determine ownership and legacy, a task of three components: 1) who currently owns the work, 2) who will own the works after Mr. Taylor's death, and 3) who will own the works if the Paul Taylor Company no longer exists. After ensuring that he owned the dances, Mr. Taylor decided that he would transfer ownership of his works to his board, upon death. The board will then license the work. As for his company, it will continue after his death as a multi-choreographer repertory company. This means that, like the successful Ailey and LimÃ³n companies, the Paul Taylor Dance Company will commission and perform works by other choreographers, in addition to continuing to perform Mr. Taylor's own work. The artistic director, Mr. Taylor's successor, will be chosen by a group of unnamed advisors. Finally, should the Taylor Company ever dissolve, it will have the right to transfer ownership of Mr. Taylor's work to another company. Hopefully, this ensures that Mr. Taylor's work will continue to be performed (so long as dancegoers want to see it), and, thus, preserved through performance.
Mr. Cunningham chose a slightly different route. Both Mr. Cunningham and his Company owned a number of his dances, and both transferred their rights to the Cunningham Trust, which will oversee the licensing, staging, teaching, and preservation of Mr. Cunningham's work, much like the Balanchine Trust. Mr. Cunningham's company will continue after his death, but will perform only his work. Should demand for his work diminish, and/or the company dissolve, the work will be preserved through the Trust. As a safeguard, the Trust is not part of the same non-profit entity that supports the Cunningham Company and, thus, will not be in danger of folding if the company folds.
The decisions by Mr. Taylor and Mr. Cunningham, and their paths to those decisions reflect not only the major legal issue that dance companies face today, but also many of the challenges and ramifications of the decisions they must make. The first goal is for a company to survive its founder's death without a lengthy legal battle over ownership of choreography. The Martha Graham case serves as a sharp reminder to many companies that it is essential not only to indicate who owns the work, but to avoid the costs of a legal battle. Dance is expensive to make and expensive to preserve, and dance companies today (if ever) simply cannot survive an expensive legal battle. The second, and vastly more important, goal is to set up a framework that will allow the choreography itself to survive a choreographer's death. Because of the uniquely ephemeral nature of choreography and the difficultly of capturing dance in a fixed form, it is essential that the works are available to be continuously performed, and passed down through experience — not just through video. As the article aptly states: “The challenge lies not only in safeguarding the dances, but in maintaining their integrity and vitality.”