After Death, Who Owns Choreography?

NYTimes
January 7, 2007
When the Choreographer Is Out of the Picture
By DIANE SOLWAY

LIKE so much else in American dance, it all began with Martha Graham. When the mother of modern dance died in 1991 at the age of 96, she bequeathed control of her work to her friend Ronald Protas. But in a bitter and very public legal battle, the Martha Graham Center claimed that it, and not Ms. Graham, owned the rights to her dances and that they were not hers to give away.

A case like this had never been litigated. Everyone assumed that choreographers owned their dances. But in 2002 the courts ruled that Ms. Graham had either assigned the center the rights to virtually all her dances or choreographed them as “works for hire.” The Martha Graham Center is a respectful steward of her legacy. But to choreographers across the country, the battle and its outcome were a startling alarm.

One night early in “the Graham debacle,” as it is known in the dance world, Merce Cunningham was at dinner with his friend Laura Kuhn. She asked who owned the copyright to his work. “And he said, ‘I don’t know,’ ” she recalled. Had he copyrighted his dances? she pressed. “I don’t think so,” he replied.

If the matter was not handled correctly, she knew, his dances could be tied up in litigation, kept from the public eye or mismanaged in such a way that “their essence would be corrupted.” Mr. Cunningham, she said, was “horrified” to discover in his eighties that his artistic legacy was at risk, that he might not hold the right to decide if, how and where his dances were to be performed.

He wasn’t the only one. Paul Taylor was likewise taken aback by the case. No major dance company had ever sorted through these issues with its founder, but suddenly the taboo subject of a company’s life after its founder’s death was forced onto center stage. “It was opening Pandora’s Box,” recalled John Tomlinson, the longtime manager of the Paul Taylor Dance Company. “We all went: ‘Uh oh! What do you mean Paul might not own his own work?’ ”

As the sole survivors of the great 20th century choreographers, Mr. Cunningham, 87, and Mr. Taylor, 76, are the titans of American modern dance. Each is regularly billed as the world’s “greatest living choreographer.” Even in the wake of the Graham debacle, and despite intense speculation, they have never spoken publicly — and rarely privately — about their intentions for their companies when they are no longer around to animate them.

Recently, however, both choreographers agreed to discuss their plans for their companies and their dances. What becomes of them are some of the most urgent and complex questions facing the dance world, not least because no single-choreographer company built by a towering figure has ever sustained its status after the founder’s death. Not even the Graham company. “Nobody wants to sit down and think about ‘uh oh, I’m going to die,’ ” Mr. Taylor said in a recent interview. “It’s only in the last few years that I have a will. And I was urged to do it.”

To Mr. Cunningham: “It’s tricky. Dancing is like water. It floats away.”

THEIR plans are as much a reflection of their singular personalities as are their dances and the troupes each has molded for more than half a century. Mr. Cunningham has made at least 150 dances since founding his troupe in 1953; Mr. Taylor has composed 125 works for the company he created in 1954.

Having begun their careers in Ms. Graham’s company, both continue to forge important new dances, revive old ones and infuse their companies with their vital creative energy. But the process of shaping their legacies involves more than just artistic concerns.

“I don’t care frankly,” said the boyish Mr. Taylor with a sly laugh, fishing another cigarette from the pack. “I won’t be here to see the dances which I enjoy, so what does it matter to me?”

Tall and trim, wearing khakis, an open shirt and fluffy slippers, Mr. Taylor sat in the living room of his West Village row house, where he keeps his collections of shells and framed bugs on the walls. “But I thought as long as the dancers want to do these things and the public wants to see them, I should try to cooperate. I feel a certain responsibility and I’m not ashamed of a lot of these dances, so I thought I should make some effort to see that they can continue.”

Many dance pioneers have failed to do so. Lester Horton and Erick Hawkins died without leaving wills. José Limón had one but didn’t mention his works, which were divided among his heirs and sold back to the José Limón Dance Foundation. Alvin Ailey left his dances to his mother and the rights to his name to his step-brother. The Ailey board eventually bought back those rights. On his death in 1983 George Balanchine left his dances to several former dancers, not to his company, the New York City Ballet. An out-of-court settlement prevented a court battle, and a trust now controls the rights to his dances.

But it was only after the Graham case that most American choreographers really paid attention. No one wanted to end up with “the train wreck that was Graham and see their dances tied up in litigation for years or lost because the rights to perform them are uncertain,” said Richard Caples, a lawyer and the executive director of the Lar Lubovitch Dance Company.

Mr. Cunningham had always enjoyed a congenial relationship with his company’s board. But he suddenly worried that they’d stop him from copyrighting his works. So he began the process in secret, which he likened, in an interview last month at his studio, to having “made a garden and it’s yours and thieves come at night and steal things from it.”

Trevor Carlson, the Cunningham company’s executive director, said that “for years we’ve pressed Merce to make clear his intentions for all of us to cope.” The choreographer, he said, had “skirted the issue.” Out of concern for him, Alan Sperling, a lawyer and longtime board member, advised Mr. Cunningham that the company actually owned some of his dances.

“Given the murkiness of the area and the situation with Graham,” Mr. Sperling said, “it needed to be resolved.”

As Ms. Kuhn recalled: “Merce was furious but also scared because he had to stand up for himself with the board. He worried that board members would quit, thinking he didn’t trust them. Well, Merce is not used to saying what he wants out loud, he’s used to you divining it, but he had to, otherwise he’d lose everything. It was a turning point.”

When Mr. Cunningham told several board members that he planned to transfer his rights to a trust in his name, they were delighted, Mr. Sperling said, that “he wanted things to keep going” and to avoid a legal quagmire. The board of the company transferred its rights too. The Cunningham Trust will oversee the licensing, staging, teaching and preservation of his works.

He had already been taught a lesson in dealing with a major artistic legacy when John Cage, his longtime partner and musical director, died in 1992 and left Mr. Cunningham his estate. “We spent a good five years working with lawyers trying to figure out what to do with all of this stuff,” said Ms. Kuhn, who became director of the John Cage Trust. “I told him I wouldn’t go through that again.”

So Mr. Cunningham consulted with Barbara Horgan, head of the Balanchine Trust, “about what not to do.” But ultimately, he said, he realized that, “unless we did something there would be trouble. Maybe there’ll be trouble anyway.”

The trust will be financed by Mr. Cunningham’s estate, which includes artworks by the artists he hired as set designers early in their careers, among them Robert Rauschenberg and Jasper Johns. For now Mr. Cunningham is the sole trustee, though others will be named. (The business of naming trustees has so far proved “too stressful for him,” said Ms. Kuhn, his designated executor.) Mr. Cunningham has given his trustees a somewhat free hand, but he is hopeful that his dancers will play a role, so that beyond videotape, sketches and notes, there will be what he calls “a physical presence,” a kind of live archive. “You keep it going by doing it,” he explained.

Once the leading dancer in his troupe, Mr. Cunningham didn’t retire from the stage until he was 82. This year he stopped bowing because the exertion was too much. He suffers from disabling arthritis and moves around by wheelchair but comes to work every day, teaches class twice a week and remains astonishingly productive, intent on testing the possibilities of movement tied neither to a musical score nor to a story line. Vanguard instincts still propel him. He sketches dances using a computer software program; this fall, he incorporated iPods into a new piece.

Mikhail Baryshnikov, who recently showed Mr. Cunningham the photographs he’d taken of a Cunningham stage rehearsal, was struck “by the way his brain works — the clarity” and by “how excited he gets about shape and dynamics. He’s taking everything in.”

Mr. Cunningham said he would like to see his company continue with his assistant, the dancer Robert Swinston, 56, at the helm. The company will perform only Mr. Cunningham’s choreography, raising the issue of whether audiences and donors — and the dancers themselves — will support it without the lure of something new. “At its heart modern dance is about creation and new work,” said Lar Lubovitch, whose troupe is now in its 39th year.

Mr. Cunningham is realistic that the company will exist “only as long as the public wants to see it,” Mr. Carlson said. And he’s made sure that his trust, which licenses his works, is not part of the nonprofit entity that supports the activities of his company. Should the company fold, his work, thanks to the trust, will live on.

LIKE Mr. Cunningham, in whose original group of dancers he performed in 1953, Mr. Taylor came of age at a time when choreographers were preoccupied with keeping audiences from walking out. One of Mr. Taylor’s first experiments — in which he stood still while his dancers walked through seven dances — prompted a signed blank review. The notoriety “put me on the map,” he said, and taught him to be more considerate of his audience. “Naughty boy,” Ms. Graham admonished him afterward.

In the years since, he’s produced a body of work notable for its range and striking in its musicality, use of everyday gesture and seeming spontaneity. While his company is among the most popular in American dance, none of its employees operates with a written contract. “It’s all about making Paul’s vision happen,” said Patrick Corbin, who was a leading Taylor dancer for 15 years. Mr. Taylor, said Mr. Tomlinson, “comes from a world where lawyers shouldn’t exist.” After the Graham case, however, “we had teams of them.”

Mr. Taylor selected the works he wanted to copyright in his name and the Taylor board formed an intellectual property committee to determine ownership and legacy. Robert Aberlin, who served on that committee, said that “we had to figure out who owned the dances, who will own the dances and, if there is no longer a company, what then? The more we talked to the other companies, the more we realized what a mess they’d been left with and what a concern it was.”

With Mr. Taylor’s input the company lawyers drew up a lengthy document. “Paul said: ‘I don’t want to sign these huge contracts about every contingency. It’s ridiculous,’ ” Mr. Tomlinson recounted. “ ‘If the foundation says I own the work, I own the work. If you need that in writing, write me a letter.’ ” So they did.

As his will now stands, Mr. Taylor plans to transfer ownership of his dances to his company upon his death. His board will own and license the work. But he intends for his company to become a repertory company and admit work by other choreographers, as the thriving troupes of Alvin Ailey, José Limón and George Balanchine have always done. “The public always wants something different and new,” he said. More important, dancers “don’t want to be doing the same old dances over and over, forever.”

His successor will be chosen by artistic advisers whom Mr. Taylor has selected, but won’t reveal. “I won’t tell you what’s in my will,” he teased. “Do you think I want to get bumped off?” As for the dances, the company will continue to own them, but Mr. Taylor plans for his artistic advisers to serve as watchdogs. Should the Paul Taylor Dance Company ever dissolve, it will have the right to transfer ownership of Mr. Taylor’s repertory to another company.

At one time Christopher Gillis, a Taylor dancer and choreographer, was seen as his creative heir-apparent. But Mr. Gillis died in 1993. Then, two and a half years ago, Mr. Taylor suffered the loss of his lifelong friend, George Wilson. “I’m familiar with loss,” Mr. Taylor said. “I suppose everybody is of a certain age.”

His plan places the emphasis on his dance company; Mr. Cunningham’s puts it on his trust. Though their wills are signed and their custodians hand-picked, both men can still change their minds. And there’s no guarantee that their intentions can or will be carried out. Beyond legalities, then, the challenge for them — as it is for all American choreographers post-Graham — lies not only in safeguarding the dances, but in maintaining their integrity and vitality.

Dance is passed on through notation and video recordings, but most reliably by one dancer to another. Working in the studio with Mr. Taylor, said Mr. Corbin, for whom he created many roles, “that’s magic, no matter how the piece turns out.” The Taylor dancers, he said, “have to work with some denial because he’s beloved and we don’t want to think about the company without him.”

Both Mr. Taylor and Mr. Cunningham know their work is bound to change, and they welcome it. Dances change, Mr. Cunningham said, “because there are different dancers doing them. You can’t dictate the length of someone’s leg.”

Dance, Mr. Lubovitch noted, is by nature ephemeral: “Whether or not it is or ever was a preservable art is a big question. This is the greatest dilemma facing preservers of dance. It hasn’t been allowed to mutate. But we don’t see old dances in the context of their times, we see them in the context of our times.”

Mr. Taylor is content with that. “You have to open it up,” he said.

Ever playful, he wondered what his early mentor and friend, Martha Graham, would think about the situation her will created. “Her works were vehicles for her and my impression was that she did not want them done after her death,” he said. “She goes, they go.”