Martha Graham School v. Martha Graham Center
| Decision Date | 18 August 2004 |
| Docket Number | Docket No. 02-9451(L).,Docket No. 03-7020(CON). |
| Citation | 380 F.3d 624 |
| Parties | MARTHA GRAHAM SCHOOL AND DANCE FOUNDATION, INC., Plaintiff-Counterclaim-Defendant-Appellant, Ronald Protas, individually and as Trustee of the Martha Graham Trust, Plaintiff-Counterclaim-Defendant-Appellant, v. MARTHA GRAHAM CENTER OF CONTEMPORARY DANCE, INC., and Martha Graham School of Contemporary Dance, Inc., Defendants-Counter-Claimants-Appellees, Eliot L. Spitzer, Attorney General of the State of New York, Intervenor-Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from the United States District Court for the Southern District of New York, Miriam Goldman Cedarbaum, J.
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Judd Burstein, New York, NY (David Nimmer, Alison Hajdusiewicz, Irell & Manella, LLP, Los Angeles, Cal., on the brief), for Plaintiffs-Counterclaim-Defendants-Appellants.
Katherine B. Forrest, New York, NY, (Joanne M. Gentile, Cravath, Swaine & Moore LLP, New York, NY, on the brief), for Defendants-Counter-Claimants-Appellees.
Barbara L. Quint, Asst. Atty. Gen., New York, NY (Eliot Spitzer, N.Y. State Atty. Gen., New York, NY, on the brief), for Intervenor-Defendant-Appellee.
Oliver Metzger, New York, NY (Charles L. Kerr, James E. Hough, Morrison & Foerster LLP, New York, NY, on the brief), for amici curiae American Dance Festival, Inc., Gerald Arpino and Gordon Davidson, in support of Plaintiffs-Counterclaim-Defendants-Appellants.
Before: NEWMAN, KEARSE, and POOLER, Circuit Judges.
This appeal raises several copyright and contract issues relating primarily to dances choreographed by the late Martha Graham, widely regarded as the founder of modern dance. The primary issue is whether the work-for-hire doctrine applies to works created by the principal employee of a corporation that was, in the Appellants' view, "created to serve the creative endeavors of an artistic genius." Br. for Appellants at 20. This and other issues arise on an appeal by Ronald Protas and The Martha Graham School and Dance Foundation, Inc. (collectively "Plaintiffs" or "Appellants") from the November 4, 2002, judgment of the District Court for the Southern District of New York (Miriam Goldman Cedarbaum, District Judge). The Court's principal ruling was that copyrights in most of the 70 dances in dispute belong to Defendants-Appellees Martha Graham Center of Contemporary Dance, Inc. ("the Center") and Martha Graham School of Contemporary Dance, Inc. ("the School") and that the copyright in only one dance belongs to Protas, who is Graham's sole beneficiary under her will.
On the primary issue, we agree with the District Court that the work-for-hire doctrine was properly applied to dances created after 1966. On certain other aspects of the Court's judgment we conclude that a partial reversal or remand is required. We therefore affirm in part, reverse in part, vacate in part, and remand.
Although Martha Graham had the myth of Ariadne1 in mind when she selected Errand into the Maze as the title for the dance that she created in 1947, that title is appropriate for the task this litigation presented to the District Court and now presents to this Court. The critical events span sixty-five years, many of the pertinent facts are obscured by inadequate record-keeping, and the copyright issues require consideration of several provisions of both the 1909 and 1976 Copyright Acts, see 1909 Copyright Act ("1909 Act"), 17 U.S.C. § 1 et seq. (1976) (repealed effective 1978), reprinted at 8 Nimmer on Copyright ("Nimmer") app. 6; Copyright Act of 1976 ("1976 Act"), 17 U.S.C. § 101 et seq. (2000), and other statutes.
The District Court's meticulous opinions detail the facts underlying this complex dispute. See Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc., 153 F.Supp.2d 512, 514-19 (S.D.N.Y.2001) ("Graham I"), aff'd, 43 Fed.Appx. 408 (2d Cir.2002); Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc. ("Graham II"), 224 F.Supp.2d 567, 570-82 (S.D.N.Y.2002). We recount some of the background, but refer the reader to Judge Cedarbaum's opinions.
The Center and the School. Martha Graham's celebrated career as a dancer, dance instructor, and dance choreographer began in the first third of the twentieth century. In the 1920s, she started a dance company and a dance school, running them as sole proprietorships, and choreographed works for commissions. Graham was very successful, but by the 1940s, for tax reasons and because she wanted to extricate herself from funding and legal matters, she began relying on non-profit corporations, which she led, to support her work.
Eventually, Graham completed her work exclusively through two corporations — the Center and the School. The Center was incorporated in 1948. Initially known as the Martha Graham Foundation for Contemporary Dance, Inc., the corporation was renamed the Martha Graham Center of Contemporary Dance, Inc. in 1968. Graham operated her school as a sole proprietorship until 1956 when she sold it to the Martha Graham School of Contemporary Dance, Inc., which was incorporated in that year. The District Court treated the Center and the School as a single entity for purposes of determining copyright ownership.2 See Graham II, 224 F.Supp.2d at 587-92.
Protas. Around 1967, Graham, then in her 70s, became acquainted with Ronald Protas, then a 26-year-old freelance photographer. Protas and Graham became friends, and although Protas had no previous dance background, Graham increasingly trusted him to represent her in both personal and professional matters. Graham installed him as the Center's General Director.
In her last will, signed in 1989, two years before her death, Graham named Protas her executor and, significant to this case, bequeathed to him, in addition to her personal property, her residuary estate, including any rights or interests in "dance works, musical scores, scenery sets, [Graham's] personal papers and the use of [Graham's] name."3 The will did not identify what these interests might be.
Protas's Trust. After Graham's death in 1991, Protas became Artistic Director of the Center. In 1992, Protas's lawyers suggested that he ascertain what items of intellectual property had passed to him under Graham's will. He did not do so, but nevertheless asserted ownership of copyrights in all of Graham's dances and of all the sets and properties at issue on this appeal. In 1998, he placed the copyrights in the Martha Graham Trust ("the Trust"), a revocable trust that he had created and of which he was trustee and sole beneficiary.
During the 1990s, the Trust licensed many of the dances and sets to various licensees. In 1993, Protas assigned to the Center 40 percent of what he claimed was his 100 percent interest in the Noguchi sculpture "Herodiade." In 1998, Protas arranged for the Trust to sell numerous properties — books, musical scores, films and tapes of performances and rehearsals of dances, and business and personnel files relating to Graham's work — to the Library of Congress for $500,000.
Although the rest of the Center's Board of Trustees apparently accepted without question Protas's representations with respect to his rights to Graham's properties, donors pressured the Center to remove Protas from its helm. In 1999, the Trust entered into a licensing agreement with the Center, an implicit term of which was Protas's resignation as the Center's Artistic Director. The Trust agreed to give the Center an exclusive license to teach the Martha Graham technique, and a non-exclusive license to present live performances of Graham's dances; to use sets, costumes, and properties; to use Graham's images; and to use the Martha Graham trademark. The Center agreed to give the Trust power to approve the selection of a new Artistic Director. The Center also agreed to keep Protas on the Board, pay him a salary of $55,000 to $72,000 for ten years, and give him prominent billing as Artistic Consultant.
In 2000, when Protas and the Center failed to find a mutually agreeable replacement, the Board voted to remove Protas as Artistic Director. Shortly thereafter, due to severe financial difficulties, the Board voted to suspend operations. Meanwhile, Protas, acting through the Trust, founded the Martha Graham School and Dance Foundation ("S&D Foundation"), originally named The Night Journey Foundation, a not-for-profit corporation.
Copyright registration certificates. Between 2000 and 2001, Protas obtained certificates of registration for 30 of Graham's dances as unpublished works. By agreement with the Trust, the S & D Foundation became the exclusive licensee in the United States for live performance of virtually all of Graham's dances and use of the Martha Graham trademarks. During the same time period, the Center also obtained certificates of registration for initial and renewal terms for some of Graham's dances.
The pending lawsuit. In 2001, after receiving substantial funding, the Center and the School reopened. Protas then initiated this lawsuit to enjoin the Center and the School from using the Martha Graham trademark, teaching the Martha Graham Technique, and performing 70 of Graham's dances. These 70 dances, with the dates of their creation, are listed in the Appendix.4 The Plaintiffs sought a judgment under 28 U.S.C. § 2201(a) declaring that none of these dances was in the public domain, that the Trust owned all rights in these dances, that the S & D Foundation was the current and authorized licensee of such rights, and that any unauthorized use of these dances would constitute willful copyright infringement. The Plaintiffs also sought a judgment declaring Protas to be the sole owner of the sets and jewelry associated with the dances.
The Defendants asserted ownership...
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