Martha Graham School v. Martha Graham Center

• Citation: 224 F.Supp.2d 567
• Decision Date: 23 August 2002
• Docket Number: No. 01 CIV. 271(MGC).,01 CIV. 271(MGC).
• Parties: THE MARTHA GRAHAM SCHOOL AND DANCE FOUNDATION, INC. and Ronald A. Protas, individually and as Trustee of the Martha Graham Trust Plaintiffs, v. MARTHA GRAHAM CENTER OF CONTEMPORARY DANCE, INC. and MARTHA GRAHAM SCHOOL OF CONTEMPORARY DANCE, INC. Defendants, Eliot Spitzer, Attorney General of the State of New York, Intervenor-Defendant.
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

224 F.Supp.2d 567

THE MARTHA GRAHAM SCHOOL AND DANCE FOUNDATION, INC. and Ronald A. Protas, individually and as Trustee of the Martha Graham Trust Plaintiffs, v. MARTHA GRAHAM CENTER OF CONTEMPORARY DANCE, INC. and MARTHA GRAHAM SCHOOL OF CONTEMPORARY DANCE, INC. Defendants Eliot Spitzer, Attorney General of the State of New York, Intervenor-Defendant.

No. 01 CIV. 271(MGC).

United States District Court, S.D. New York.

August 23, 2002.

COPYRIGHT MATERIAL OMITTED

Judd Burstein, P.C., New York, By Judd Burstein, Esq., Sanjit Shah, Esq., Lara Ott, Esq., for Plaintiffs.

Cravath, Swaine & Moore, New York, By Katherine B. Forrest, Esq., Joanne M. Gentile, Esq., Adrienne K. Wheatley, Esq., for Defendants-Counterclaim Plaintiffs Martha Graham Center of Contemporary Dance, Inc. and Martha Graham School of Contemporary Dance, Inc.

Eliot Spitzer, Attorney General of the State of New York, New York, By Marla G. Simpson, Esq., Barbara L. Quint, Esq., for Intervenor-Defendant.

OPINION

CEDARBAUM, District Judge.

What property did Martha Graham, the great dancer, choreographer, and teacher, own at the time of her death in 1991? That is the central question in the second phase of this lawsuit. The main dispute is with respect to ownership of copyright in the dances she created. That is a federal question. Subsidiary disputes with respect to ownership of the costumes and sets for the dances and fiduciary duties owed by the plaintiff to the defendants are state law issues that arise from the same nucleus of contested facts.

Between 1956 and her death in 1991, Martha Graham was employed by defendants Martha Graham Center of Contemporary Dance Inc. ("the Center") and Martha Graham School of Contemporary Dance Inc. ("the School"), two not-for-profit corporations that operated as a combined entity. During that 35-year period, Graham created many dances with the members of the Martha Graham Dance Company ("the Dance Company") and the students and teachers at the School, all of whom were employed by the defendants. Prior to 1956, Graham had been the individual proprietor of a dance school.

The parties agree that during her lifetime, Graham created 70 dances that are fixed in a tangible medium of expression from which they can be reproduced.¹ Thirty-four of those 70 dances were created after 1956 ("the post-1956 dances"), during Graham's employment by the defendants, and 36 were created prior to 1956 ("the pre-1956 dances"). Ronald Protas, as legatee under Graham's will, and as trustee of the Martha Graham Trust ("the Trust"), a revocable trust of which he is the creator, trustee, and sole beneficiary, seeks a declaration that he owns copyright in all of the 70 dances. Defendants counterclaim for a declaration that the Center and the School are the true owners of all rights in Graham's choreographic works and related sets, costumes, and other personal property.

Based on a preponderance of the credible evidence, for the reasons that follow, Protas has proved copyright ownership for the renewal term of one dance. Defendants have proved ownership of copyright in 45 of the dances. Ten dances, of which two were commissioned by third parties, are in the public domain. With respect to five dances (two published and three unpublished) which were commissioned, neither side has borne its burden of proving that the commissioning party intended the copyright to be reserved to Graham. Finally, neither side has proved that the remaining nine dances, which were published, were published with the required statutory copyright notice.

Protas also seeks replevin and a declaration of ownership of all Noguchi sets created for the dances at issue and certain items of tangible property.² Defendants counterclaim for breach of fiduciary duty by Protas, and seek a constructive trust to recover the proceeds of his licensing of the ballets, sets, and costumes to third parties and of his sale of defendants' property to the Library of Congress. In addition, defendants seek disgorgement of ten years of Protas' salary and of payments made to Protas by defendants under a 1999 license agreement. Defendants also seek the same recovery as damages for counterclaims of fraud and negligent misrepresentation. Finally, defendants counterclaim for replevin of various items of property that Protas currently possesses and assert that Protas owes them money improperly borrowed.

THE FACTS

During a bench trial held between April 22 and April 29, eighteen witnesses testified in the courtroom and designations from the deposition of one witness were submitted. This trial was an effort to recapture a history that partially predated the knowledge and memory of the living witnesses. Accordingly, the few ancient documents that were produced became very important guideposts.

Plaintiff called the following witnesses: (1) Francis Mason, who, in 1973 or 1974, became a member and Chairman of the Center's board of directors. After two or three years, he became Chairman Emeritus of the board. In 2001, Mason again became Chairman of the board; (2) Marvin Preston, IV, who has considerable experience in the financial management of companies, and who became Executive Director of the Center in March of 2000; (3) Kevin Rover who was, from 1984 to 1989, an attorney with the firm of Morrison, Cohen, Singer, & Weinstein, counsel to the Martha Graham Center. He joined the Center's board of directors in the late 1980s; (4) Linda Hodes, who first met Graham in 1940 when she went to Graham's studio for a dance lesson, and who was a principal dancer with the Dance Company from the early 1950s until 1964. In 1977, Hodes became Director of the School and Rehearsal Director of the Dance Company. Between the late 1980s and 1992, Hodes was a member of the Center's board of directors. She also had the title of Associate Artistic Director; (5) James McGarry, the attorney who drew Graham's last will in 1989; (6) Lee Traub, who studied with Graham in 1942, was a member of the Center's board of directors from 1974 to 1994 and Chairman of the board for ten years; (7) Jeannette Roosevelt, who served as a member of the Center's board of directors between 1965 or 1966 and 1973, and became President of the Center in 1968; (8) Judith Schlosser, who has been a member of the Center's board of directors since 1974 or 1975; (9) Ronald Protas, the plaintiff, who met Graham in 1967, and who became an employee of the defendants in 1972. By the mid-1970s, Protas had become Executive Director and a board member of the Center and the School. In approximately 1980, he was given the title of Co-Associate Artistic Director; (10) Cynthia Parker-Kaback, who, in 1973, was hired as manager of the Dance Company by Protas and served until 1982; (11) Petek Gunay, an associate in the law office of plaintiff's counsel, who was assigned by counsel to go to the New York Public Library and view videotapes listed in one of defendants' exhibits.

Defendants called the following witnesses: (1) William McHenry, who was a member of the Center's board of directors from 1967 to 1973; (2) Edmund Pease, a certified financial analyst, who was a member of the Center's board of directors between 1974 and 1979. He also served as Treasurer and Vice-President; (3) Christopher Herrmann, who was assistant to the General Director (Protas) in 1987, then Director of Special Events and Projects until 1989, when he left the Center. In 1990, Herrmann returned to the Center as Director of Film Projects; (4) Stuart Hodes, who was a principal dancer with the Dance Company between 1947 and 1958, after which he taught at the School and worked to help the School gain accreditation; (5) Marvin Preston, see supra; (6) Terese Capucilli, who was a principal dancer with the Dance Company between 1979 and 1997, Co-Associate Artistic Director from 1997 to 2000, and currently principal dancer, Artistic Coordinator, and teacher at the School; (7) Christine Dakin, a dancer with the Dance Company between 1976 and 2000, who is currently a member of the dance faculty of the defendants; (8) Janet Eilber, who became a principal dancer with the Dance Company in 1972 and danced with the Company throughout the 1970s. She also was a teacher at the School. In 1998, she was invited to become Artistic Director for the defendants.

After observing the witnesses, evaluating their credibility and weighing all of the evidence, I make the following findings of fact. I incorporate in this opinion the findings of fact stated in my earlier opinion, The Martha Graham Sch. & Dance Found., Inc. v. Martha Graham Ctr. of Contemporary Dance, Inc., 153 F.Supp.2d 512 (S.D.N.Y.2001), aff'd, 43 Fed.Appx. 408 (2d Cir.2002). Familiarity with the facts detailed in that opinion is assumed. I will only repeat facts that are of special significance to the claims at issue in this part of the case. After listening to his evasive and inconsistent testimony and observing his demeanor, I again find Protas not to be a credible witness.

Between 1930 and 1956, Graham operated a dance school as a sole proprietorship. Prior to 1956, she created 36 of the dances at issue. She was commissioned by a number of renowned musical and cultural organizations to create seven dances, which were first performed between 1944 and 1953: Appalachian Spring, Herodiade, Dark Meadow, Cave of the Heart, Night Journey, Judith (created in 1950)³, and Canticle for Innocent Comedians. In 1948, Graham was one of the incorporators of the Martha Graham Foundation for Contemporary Dance ("the Foundation"), a not-for-profit corporation that was renamed the Martha Graham Center of Contemporary Dance in 1968.

In December of 1956, Graham sold the dance school she had been running as a sole proprietorship to the then newly incorporated not-for-profit, Martha Graham School of Contemporary Dance, Inc. The purposes of the School, as stated in its certificate of incorporation were to, inter alia, "teach the science and art of the dance," and "in...