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The 2nd U.S. Circuit Court of Appeals has held that many of the works of famed modern dance artist and choreographer Martha Graham were created as “works for hire” while the late Graham was an employee of the Martha Graham Center of Contemporary Dance. An heir to Graham’s estate who had claimed ownership of much of the work had argued that the choreographer’s status as a major artist and inspirational figure over whom the center exercised little control exempted her from the “work for hire” doctrine, which grants copyright to the employer. In a unanimous 50-page opinion by Judge Jon O. Newman, the court disagreed. “The fact that Graham was extremely talented understandably explains the Center’s disinclination to exercise control over the details of her work, but does not preclude the sort of employee relationship that results in a work for hire,” the court wrote in Martha Graham School and Dance Foundation v. Martha Graham Center, 02-9451. The circuit’s ruling largely upheld an earlier decision by Southern District Judge Miriam Goldman Cedarbaum, who also found that Graham created many of her dances as an employee. Widely regarded as the founder of the modern dance movement, Graham created and exhibited most of her work through the Martha Graham Center. But upon her death in 1991, she left her estate, including rights and interests in her work, to a friend, Ronald Protas. Protas, who initially became artistic director of the Martha Graham Center, later fell into a dispute with the centers’ board of trustees. During a period of financial difficulty in which the center suspended operations, Protas founded the Martha Graham School and Dance Foundation, claiming the new group had exclusive rights to teach and perform her work. When the center reopened in 2001, Protas filed suit to enjoin the center from infringing on copyrights he claimed for the new Martha Graham School. The center responded by claiming ownership over Graham’s dances, costumes and name. The case has been closely watched by the artistic community. An amicus brief signed by the heads of other major dance groups urged the court to exercise caution in applying the “work for hire” doctrine to situations involving not-for-profit corporations created for the purpose of fostering and supporting creative artists. But though the court found the arts groups’ argument appealing, it found Graham was paid by the Martha Graham Center to be its artistic director and, especially after 1966, her primary duty was to create new dances. In so doing, the court rejected Protas’ argument that Graham was not an employee because she did not create dances at the “instance” of the center. “There is no need for the employer to be the precipitating force behind each work created by a salaried employee, acting within the scope of her regular employment,” the court wrote. “Many talented people, whether creative artists or leaders of major corporations, are expected by their employers to produce the sort of work for which they are hired without any need for the employer to suggest any particular project.” The court remanded the issue of seven of Graham’s dances to the District Court for new finding because they were created between 1956 and 1966, a time at which her primary role at the center was not choreography. The Martha Graham Center was represented pro bono by Katherine B. Forrest of Cravath, Swaine & Moore. Protas was represented by Judd Burstein of Irell & Manella.

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