The Choreographic Trust: Preserving Dance Legacies
2012; Taylor & Francis; Volume: 35; Issue: 2 Linguagem: Inglês
10.1080/01472526.2011.615211
ISSN1532-4257
Autores Tópico(s)Theatre and Performance Studies
ResumoAbstract This article assesses the growing use of choreographic trusts to secure proper management of a choreographer's dance legacy, focusing on the legal status of those of George Balanchine, Frederick Ashton, Jerome Robbins, and Merce Cunningham, with consideration also given to Martha Graham's will. Such trusts are ideally suited to controlling the licensing and restaging of dance works and to sustaining long-term preservation programs. The nature of trusts and issues relevant to dance copyright and preservation are reviewed. Notes See Preserving Dance as a Living Legacy, a special issue of Dance Chronicle, vol. 34, no. 1, in which this subject is discussed from a range of perspectives. In this regard, the relationship between the George Balanchine Trust and the George Balanchine Foundation in the management of Balanchine's legacy is symbiotic: “The George Balanchine Trust is the entity responsible for licensing the ballets of George Balanchine. The Trust protects the copyrights of George Balanchine, including all media rights and live performance rights worldwide.” On the other hand, “The mission of The George Balanchine Foundation is to utilize the Balanchine legacy to advance the development of dance and its allied arts worldwide. The goal is pursued through a broad range of activities and programs, including concentrated research, ballet reconstructions, publications, lectures and videos, and other innovative projects.” See http://balanchine.com/content/site/show/faq// (accessed March 9, 2010). Lynne Weber, executive director of New York's Dance Notation Bureau (DNB), noted that the DNB finalized and signed contracts for forty performances of notated dances in February 2010 alone (interview by the author, February 16, 2010). The DNB library houses 776 scores of dance works by 251 choreographers, including forty-four Balanchine works. See Mei-Chen Lu, “The Dance Notation Bureau,” Dance Chronicle, vol. 32, no. 2 (2009): 291–301. Works by some choreographers in Europe and Australia are preserved through employment of in-house Benesh notators by a number of companies. The works of Balanchine, Robbins, and Cunningham that enter these companies’ repertories are consequently notated. See T. Inman, Benesh Movement Notation Score Catalogue (London: Benesh Institute, Royal Academy of Dance, 1998). Ellen Sorrin, director of the Balanchine Foundation, confirmed that the foundation is also exempt from federal tax under Section 501(c)(3) (e-mail to the author, January 24, 2011). Because of its charitable status, the foundation fundraises for its preservation projects. Christopher Pennington wrote that support for the Balanchine Foundation has also been given by the Jerome Robbins Foundation (e-mail to the author, January 26, 2011). Sorrin stated that the Balanchine Trust “receives income from the licensing of his ballets and other business, and that income goes to the heirs or in Tanny's [Tanaquil Le Clercq] case, the income beneficiaries designated by her” (e-mail to the author, January 24, 2011). Pennington confirmed that two of Robbins's beneficiaries may pass on their equitable rights to their heirs (interview by the author, February 18, 2010). Copyright is enjoyed for a term of seventy years from the end of the year of the choreographer's death (U.K.: The Duration of Copyright and the Rights in Performances Regulations, Statutory Instrument 1995, no. 3297; U.S.: Sonny Bono Copyright Extension Act 112, Stat. 2827 [1998]). The only two cases on copyright of dance works since the U.S. Copyright Act of 1976 are the Graham case and Horgan v. MacMillan Inc., 789 F/2d 157 (2d Cir. 1986). In the latter case, Barbara Horgan, as executrix of Balanchine's will, applied for an injunction to stop MacMillan Publishers’ The Nutcracker: A Story and a Ballet, authored by Ellen Switzer. The book contained sixty photographs of the ballet, taken by Steven Caras and Costas, and interviews with ten New York City Ballet dancers. The case was settled out of court, but the court findings on many dance-related issues have provided useful guidelines to the dance community. See also Julie Van Camp, “Copyright of Choreographic Works,” 1994–95 Entertainment, Publishing and the Arts Handbook, ed. Stephen F. Breimer, Robert Thorne, and John David Viera (New York: Clark, Boardman, Callaghan, 1994), 59–92; also available at http://www.csulb.edu/~jvancamp/copyrigh.html (accessed February 13, 2011). Works must be fixed “in writing or otherwise” (U.K. Act 1988, s.3.2) or, put somewhat differently, “fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device” (U.S. Act 1976, 17 U.S.C. 102 a). The U.S. Copyright Office Circular No. 51(b) states, “The particular movements and physical actions of which the dance consists must be fixed in some sort of legible written form, such as detailed verbal descriptions, dance notation, pictorial or graphic diagrams, or a combination of these…. Even a textual description of a dance would not seem to constitute a … work of choreography if the description is so general and lacking in detail that the dance could not be performed therefrom” (cited in Bengt Häger, The Dancer's World: Problems of Today and Tomorrow, Report on the First International Choreographers’ Conference, New York (1978), organized by the International Dance Council and UNESCO, 96–97. Lewis Flacks, Special Legal Assistant to the Register of Copyrights, United States Copyright Office, Washington, D.C., states, “Even a dance rehearsal record should satisfy the fixation requirement of the statute, at least insofar as the work exists at the time of that record…. I recently examined a Xerox copy of ‘Graduation Ball’ [a work by David Lichine], which is in a small, student examination note-book with elegantly crafted stick figures with the commentary and description of the activity in French. That was an adequate deposit copy for the registration of copyright in the work” (cited in Häger, The Dancer's World, 34). Anthea Kraut raised the fact that Hanya Holm, choreographer of Kiss Me, Kate (1948), registered with the Copyright Office in Washington, D.C., in March 1952 a microfilmed copy of the notated score by Ann Hutchinson Guest. Because Holm had inserted an American “specialty” act, Kraut contends, “Holm's legally sanctioned status as sole choreographer of Kiss Me, Kate masked the labor of additional dancers as well.” See “Race-ing Choreographic Copyright” in Worlding Dance, ed. Susan Leigh Foster (New York: Palgrave Macmillan, 2009), 90. Holm ought not to have legally claimed copyright of the interpolated dance unless she provided evidence that it is her “original” work. In fact, the performers may claim copyright if the choreography is their original work. Kraut also observed that “[Fred] Davis and [Eddie] Sledge's tap dancing was not included in the Labanotated score” (Ibid., 89). “In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all the rights comprised in the copyright” (17 U.S.C. §§ 101 and 201 [b]). Balanchine devised full rights in specified ballets to the following individuals: Diana Adams (A Midsummer Night's Dream); Suzanne Farrell (Meditation, Don Quixote, and Tzigane); Patricia McBride (Tarantella, Pavane, and Etude for Piano); Kay Mazzo (Duo Concertant); Jerome Robbins (Firebird and Pulcinella); Mrs. André [Leda Anchutina] Eglevsky (Sylvia Pas de Deux, Minkus Pas de Trois, and Glinka Pas de Trois); Betty Cage (Symphony in C); and Rosemary Dunleavy (Le Tombeau de Couperin). Also, Lincoln Kirsten (Concerto Borocco and Orpheus), Edward Bigelow (The Four Temperaments and Ivesiana), and Merrill Ashley (Ballo della Regina) share their rights with von Aroldingen and Horgan (Ellen Sorrin, e-mail to the author, May 9, 2011). Toward this end, the foundation has received support from the National Endowment for the Arts, the New York City Department of Cultural Affairs, and Capezio/Ballet Makers Dance Foundation. Horgan stated that Balanchine had direct input into few notated scores and that the majority of Labanotation scores were assembled after his death (Sorrin, e-mail to the author, January 28, 2011). Scores by notators who have worked closely with choreographers, such as Sandra Aberkalns (Labanotation) and Monica Parker (Benesh) for Paul Taylor and Kenneth MacMillan, respectively, contribute greatly to establishing the identity of the choreographers’ works. For a fuller discussion of the subject, see Francis Yeoh, “The Value of Documenting Dance,” ballet-dance magazine, June 2007, http://www.balletdance.com/200706/articles/Yeoh200706.html (accessed March 25, 2011). The author is grateful to have been granted access, in February 2010, by the Robbins Rights Trust to Robbins's private papers housed at the New York Public Library. Six of Robbins's works have been recorded in whole or part in Labanotation, according to Weber of the Dance Notation Bureau (interview by the author, February 16, 2010). Robbins's ballets in the Royal Ballet repertory are recorded in Benesh Notation, the usual company practice. This article was prepared prior to the conclusion of the Legacy Tour by the Merce Cunningham Dance Company (MCDC) in December, 2011, after which the company disbanded. According to the prepared plan, “Following the closure of the MCDC, the Cunningham Dance Foundation will also close in June 2012, and its assets will be transferred to the Merce Cunningham Trust, a separate nonprofit organization established by Cunningham in 2000 to hold the rights to his work and manage his artistic legacy in perpetuity.” Seehttp://www.merce.org/p/ (accessed May 12, 2012). Note the contrast with Frederick Ashton's contemporary, Sir Kenneth MacMillan. Sustaining a pool of qualified stagers to ensure the integrity of the work is a concern of Lady Deborah MacMillan, his wife, who plays a major role in the licensing of his ballets and the training of stagers. Liz Cunliffe, director of the Benesh Institute, states, “The MacMillan canon is nowadays staged by a team of notators, including Monica Parker, Julie Lincoln, and Karl Burnett (also Yuri Uchiumi, Grant Coyle, Denis Bonner).” E-mail to the author, March 29, 2010. This information was acquired during my employment as administrator and company secretary of the Benesh Institute between 1979 and 1987. Some Graham works were in the public domain owing to noncompliance with the statutory prerequisites of U.S. copyright law. Van Camp provided a detailed account of the legal shifts regarding registration of dance works and renewal of registration under the Copyright Act (1909) in “Martha Graham's Legal Legacy,” 76. As a note of interest, registration is not a statutory requirement in the U.K. 1. Cited in Richard Buckle (in collaboration with John Taras), George Balanchine: Ballet Master (London: Hamish Hamilton, 1988), 327. Emphases in the original. 2. David Vaughan, “Celebrating Ashton,” DanceView (Spring 1999), http://www.danceview.org/archives/ashton/vaughan1.htmo/ (accessed February 16, 2009). 3. See the articles in Dance Chronicle, vol. 34, no. 1, and Catherine J. Johnson and Allegra Fuller Snyder, Securing Our Dance Heritage, Issues in the Documentation and Preservation of Dance (Washington, D.C.: Council for Library and Information Resources, 1999); Allegra Fuller Snyder, Dance Films: A Study of Choreo-Cinema (Albany: State University of New York Press, 1973); Glenn Loney, “Broadway Dancin’” (interview with Lee Theodore), Performing Arts Journal, vol. 4, nos. 1–2 (May 1979): 129–41; and Libby Smigel, Documenting Dance: A Practical Guide (Washington, D.C.: Dance Heritage Coalition, 2006), http://www.danceheritage.org/publications/DocumentingDance.pdf (accessed May 8, 2011). 4. “Dance Capsules,” http://www.merce.org/p/ and http://www.merce.org/p/dance-capsules.php (accessed February 19, 2011). 5. Ray Cook, “In Response: Janet Karin's ‘Copyright Preservation or Embalmment?’” Brolga, no. 8 (June 1998): 63. 6. Maya Dalinsky, “The Dance Master: The Legacy of Jerome Robbins,” Humanities, vol. 25, no. 5 (September/October 2004), http://www.neh.gov/news/humanities/2004–09/robbins.html/ (accessed March 8, 2010). 7. Lynne Weber, e-mail to the author, January 26, 2011. 8. Marcia B Siegel, Mirrors and Scrims: The Life and Afterlife of Ballet (Middletown, Conn.: Wesleyan University Press, 2010), 136–37. 9. Cited in R. M. Campbell, “Preserving Balanchine Is a Matter of Trust,” Seattle Post-Intelligencer, February 2, 1991, Entertainment, C1. 10. Nancy Reynolds, interview by Alexandra Tomalonis, “The Balanchine Archive Project,” Ballet Alert, no. 1 (October 1997), http://www.balletalert.com/magazines/BAsampler?Reynolds.htm (accessed October 12, 2006). 11. George L. Gretton, “Trusts without Equity,” International and Comparative Law Quarterly, vol. 49, no. 3 (2000): 600. 12. Jonathan Hilliard, “The Flexibility of Fiduciary Doctrine in Trust Law: How Far Does it Stretch in Practice?,” Trust Law International, vol. 23, no. 3 (2009): 119. 13. Gretton, “Trusts without Equity,” 600. 14. Christopher Pennington, interview by the author, February 18, 2010. 15. Christopher Pennington, e-mail to the author, January 18, 2011. 16. Daniel J. Wakin, “Merce Cunningham Sets Plan for His Dance Legacy,” New York Times, June 9, 2009, http://www.nytimes.com/2009/06/10/arts/dance/10merc.html?ref=merce_cunningham/ (accessed December 13, 2010). 17. Diane Solway, “When the Choreographer Is Out of the Picture,” New York Times, January 7, 2007, Arts and Leisure, 2. 18. Philip H. Pettit, Equity and the Law of Trusts, 11th ed. (Oxford: Oxford University, 2009), 66; Jean Warburton, “Charitable Trust—Unique?,” Conveyancer and Property Lawyer, no. 20 (January–February, 1999): 21. 19. Pennington, e-mail. 20. Ibid. 21. The Jerome Robbins Foundation and the Robbins Rights Trust, http://jeromerobbins.org/ (accessed March 11, 2010). 22. Warburton, “Charitable Trust—Unique?,” 21. See also Michael Haley and Lara McMurtry, Equity and Trusts (London: Sweet & Maxwell, 2006), 159; Jill E. Martin, Hanbury and Martin: Modern Equity (London: Sweet & Maxwell, 2009), 392. 23. Haley and McMurtry, Equity and Trusts, 136. 24. See The George Balanchine Trust, http://www.balanchine.com/content/site/show/faq, http://www.balanchine.com/content/, and http://www.balanchine.org/ (accessed May 13, 2011). 25. The following documents pertain to the case Martha Graham School and Dance Foundation Inc. v. Martha Graham Center of Contemporary Dance, Inc.: 153 F. Supp. 2d, 512 (S.D.N.Y. 2001); 224 F. Supp. 2d, 567 (S.D.N.Y. 2002); 380 F. 3d (2d Cir. 2004); 380 F. 3d (2da Cir. 2004), petition for cert. filed, 73 U.S.L.W. 3570 (U.S. Mar. 21, 2005) (No. 04–1277); U.S. Dist. LEXIS 12241, 8–24 (S.D.N.Y 2005); U.S. App. LEXIS 17455 (2D Cir. 2006). 26. Cited in Bengt Häger, The Dancer's World: Problems of Today and Tomorrow, Report on the First International Choreographers’ Conference, New York (1978), organized by the International Dance Council and UNESCO, 29. 27. Francis Sparshott, A Measured Pace: Toward a Philosophical Understanding of the Arts of Dance (Toronto: University of Toronto Press, 1995), 422. 28. University of London Press Ltd. v. University Tutorial Press Ltd. (1916), 2, Ch 601. Italics added. 29. Cited in Copinger and Skone James on Copyright, ed. Kevin W. Garnett, Gillian Davies, Gwilym Harbottle, Walter Arthur Copinger, and E. P. Skone James, 15th ed. (London: Sweet and Maxwell, 2005), 40. 30. See Julie Van Camp, “Copyright of Choreographic Works,” 1994–95 Entertainment, Publishing and the Arts Handbook, ed. Stephen F. Breimer, Robert Thorne, and John David Viera (New York: Clark, Boardman, Callaghan, 1994), 59–92, 63; also available at http://www.csulb.edu/~jvancamp/copyrigh.html (accessed February 13, 2011). 31. David R. Koepsell, The Ontology of Cyberspace: Philosophy, Law and the Future of Intellectual Property (Chicago: Open Court Publishing Co., 2000), 16. 32. Barbara A. Singer, “In Search of Adequate Protection for Choreographic Works: Legislative and Judicial Alternatives vs. The Custom of the Community,” University of Miami Law Review, vol. 38 (1994): 300–1. 33. See Julie Van Camp, “Martha Graham's Legal Legacy,” Dance Chronicle, vol. 30, no. 1 (2007): 67–99. 34. Francis Mason, “The Legacy of Martha Graham,” Ballet Review, vol. 30, no. 3 (Fall 2002): 33–72. 35. Anne W. Braveman, “Duet of Discord: Martha Graham and Her Non-Profit Battle Over Work for Hire,” Loyola of Los Angeles Entertainment Law Review, vol. 25 (2005): 496. 36. Mason, “The Legacy of Martha Graham,” 33. 37. Nancy S. Kim, “Martha Graham, Professor Miller, and the Work for Hire Doctrine: Undoing the Judicial Bind Created by the Legislature,” Journal of Intellectual Property Law, vol. 13 (2006): 339. 38. Ibid., 340. 39. Braveman, “Duet of Discord: Martha Graham and Her Non-Profit Battle,” 491. 40. Agnes de Mille, And Promenade Home (Boston: Little, Brown and Company, 1956), 257. 41. Ellen Sorrin, interview by the author, February 17, 2010. 42. Cited in Joseph Carman, “Who Owns a Dance? It Depends on the Maker,” New York Times, December 23, 2003. 43. Sorrin, interview. 44. Ria Catton, “Balanchine's Right-Hand Woman: Barbara Horgan,” New York Sun, July 7, 2004, 18. 45. Quoted in Sheryl Flatow, “The Balanchine Trust: Guardian of the Legacy,” Dance Magazine (December 1990): 58–59. 46. Quoted in Jann Parry, “The Next Generation, an Exercise in Trust—The Americans Are More Legalistic in Protecting their Balletic Inheritance than the British,” The Observer, December 2 1990, 61. 47. Flatow, “The Balanchine Trust: Guardian of the Legacy,” 58. 48. Cheryl Swack, “The Balanchine Trust: Dancing Through the Steps of Two-Part Licensing,” Villanova Sports and Entertainment Law Journal, vol. 6 (1999): 270, n. 19. 49. Sorrin, interview. See also The George Balanchine Trust, Licensing the Ballets, http://balanchine.com/content/site/show/licensing (accessed May 8, 2011). 50. Quoted in Rita Feliciano, “The Balanchine Trust at Ten: Building a Better Future for Companies Nationwide,” Dance Magazine (June 1997): 154. 51. Quoted in Flatow, “The Balanchine Trust: Guardian of the Legacy,” 60. 52. Sorrin, interview. 53. Sorrin, interview; Flatow, “The Balanchine Trust: Guardian of the Legacy,” 59. 54. Ann Hutchinson Guest, “And the Choreography Is By…,” Dance Now, vol. 11, no. 4 (Winter 2002/03): 43. 55. Hutchinson Guest, “And the Choreography Is By…,” 45. 56. Sorrin, interview; Pennington, interview. 57. Amanda Vaill, Somewhere: The Life of Jerome Robbins (New York: Broadway Books, 2006), 524. 58. Christopher Pennington, e-mail to the author, March 7, 2011. 59. Pennington, interview. 60. Alan Riding, “In Paris, Paying Tribute to Jerome Robbins with Pomp and Humor,” New York Times, March 12, 1999, Arts, 1. 61. Alastair Macaulay, “Robbins's Legacy of Anguish and Exuberance,” New York Times, April 27, 2009. 62. Solway, “When the Choreographer Is Out of the Picture,” 3. 63. Arthur Lubow, “Can Modern Dance Be Preserved?” New York Times, November 8, 2009, 38. 64. See http://www.merce.org/foundation/index.php/ (accessed January 20, 2011). 65. “Merce Cunningham Announces Precedent-Setting Plan for Future of His Dance Company and His Work” and “Merce Cunningham Dance Company to Launch Final World Tour in February 2010,” both at www.merce.org/p/documents/CDFLegacyPressRelease.pdf (accessed February 28, 2011). 66. Lynne Weber, interview by the author, February 16, 2010. 67. “The Legacy Plan,” http://www.merce.org/foundation/index.php/ (accessed January 20, 2011). 68. “Merce Cunningham Announces Precedent-Setting Plan.” 69. Lubow, “Can Modern Dance Be Preserved?” 38. 70. Solway, “When the Choreographer Is Out of the Picture,” 2. 71. Quoted in Gerald Dowler, “Fred Steps Out in New York,” The Dancing Times (September 2004): 13. See also Kathrine Sorley Walker, “Ashton Now and Then,” DanceView (1994) in the Ashton Archive series, 8, http://www.danceview.org/archives/ashton/walker1.html (accessed October 16, 2009). 72. Sorley Walker, “Ashton Now and Then.” 73. Suzanne McCarthy, “Report of the Interview between Anthony Russell-Roberts, Administrative Director, and Phyllida Ritter at a Lunch and Listen Friends event, 23 May 2002, Royal Opera House, London,” ballet magazine, http://www.ballet.co.uk/magazines/yr_02/jul02/sm_ rb_russell_roberts.htm (accessed October 16, 2009). 74. Ibid. The Frederick Ashton Foundation has been established since the preparation of this article: “Launch of the Frederick Ashton Foundation,” press release, October 8, 2011,http://balletnews.co.uk/the-royal-opera-house-the-frederick-ashton-foundation/ (accessed November 16, 2011). 75. Jane Simpson, cited in Brendan McCarthy, “Ashton Trust,” Ballettalk, Discussion Forum (September 17, 2004), http://www.ballettalk.invisionzone.com/index.php?showtopic=17654/ (accessed October 16, 2009). 76. Alastair Macaulay, “The Uncertain Future Life of Ashton Ballets,” New York Times, June 19, 2009, 5. 77. Gerald Dowler, “A Foot in Two Camps, Interview with Anthony Russell-Roberts, Administrative Director of the Royal Ballet and Frederick Ashton's Nephew,” The Dancing Times (November 2004): 13. 78. McCarthy, “Ashton Trust.” 79. Rudolf Benesh and Joan Benesh, Reading Dance: The Birth of Choreology (London: Condor, 1977), 6. 80. Amanda Eyles, “Artistic Testament,” Dance Gazette, vol. 1 (2001): 19. 81. Sorley Walker, “Ashton Now and Then,” 5, 7. 82. Dowler, “Fred Steps Out,” 11. 83. Ibid. 84. Daniel Jacobson, “Sylvia: Can These Bones Live?,” Ballet Review, vol. 33, no. 1 (Spring 2005): 21. 85. Van Camp, “Martha Graham's Legal Legacy,” 70. 86. Kim, “Martha Graham, Professor Miller, and the Work for Hire Doctrine,” 339. 87. Van Camp, “Martha Graham's Legal Legacy,” 81–82. 88. Martha Graham Sch. & Dance Found. Inc. v. Martha Graham Ctr. of Contemporary Dance, Inc., 224 F. Supp.2d, 567 (S.D.N.Y. 2002). 89. Van Camp, “Martha Graham's Legal Legacy,” 86. 90. Ibid., 71, 68. 91. Mason, “The Legacy of Martha Graham,” 33. 92. On work for hire, see Louise Nemschoff, “Authorship and Employment: Life in the Entertainment Industry after CCNV v Reid,” Entertainment Law Review, vol. 4, no. 3 (1993): 80. On the Graham decision, see Sharon Connelly, “Authorship, Ownership, and Control: Balancing the Economic and Artistic Issues Raised by the Martha Graham Copyright Case,” Fordham Intellectual Property, Media and Entertainment Law Journal, vol. XV (2006): 849. 93. Society of Stage Directors and Choreographers, http://sdcweb.org/ (accessed January 10, 2011). 94. Kim, “Martha Graham, Professor Miller, and the Work for Hire Doctrine,” 339. 95. Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc., 380 F. 3d (2d Cir. 2004), 640. 96. Braveman, “Duet of Discord: Martha Graham and Her Non-Profit Battle Over Work for Hire,” 490. 97. Alastair Macaulay, “Portraits in Grief after Graham and Jungian Torment in Greek Legends,” New York Times, September 13, 2007.
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