Repertoire Rights: The Legalities of Remounting Work

By Toba Singer

November 1, 2010, PUBLISHED BY IN DANCE

IN THE FILM THE LAST STATION, the Countess Sofia tries to drown herself after chancing upon the will of her husband, Leo Tolstoy. He has not left his prodigious body of work to her, but the public domain. The countess survives both her suicide attempt and her civic-minded husband. The court awards her ownership of Tolstoy’s works.

Modern Dance choreographer Sophie Maslow, a Graham dancer and a founder of the mid-century New Dance Group, bequeathed her works to her daughter, Abigail Blatt. Blatt, who danced with her mother’s company, relates what has happened since the bequest: “I’ve been approached by dancers and dance companies seeking permission to reconstruct my mother’s major works. Every dance reconstruction project seems to be fraught with challenges that could threaten the artistic integrity of the choreography, however I’m not sure whether these would be considered ‘legal’ challenges to my rights.”

Such challenges “run the gamut of dancers not doing justice to the choreography, not enough rehearsal time, inattentive rehearsal directors, program and press release errors and omissions, inadequate costume, sound and lighting support, loss of funding, and lack of brush-up rehearsals between performances,” says Blatt. Even when all the control issues are specified in a contract, companies choose to ignore them. “My experience has been that it is almost impossible to (1) force the company to adhere to the contract, especially financial arrangements, and (2) correct program and press release errors and omissions.”

“Gotta dance?” is an easier question to answer than the one that succeeds it: “Got a dance?” To remount a work from another company’s repertoire, you’ve got an average of 18 months’ of licensing ahead of you before calling your first rehearsal.

University of Maryland law professor, Dr. Peter Jaszi, affirms that licensing is usually obtained from the rights holder, a living artist, his or her agent, or an owning family member, trust, or estate. It is easiest to obtain licensing for works created between 1978 and 2002, especially if a restaging or reinterpretation is seen as adding value to a work rather than exploiting it, and is sheltered by copyright law’s fair use provision. Works created on either side of the 1978-2002 window (where protection extends through 2042), cannot enter the public domain until at least a century after they were created and long after your company’s season ends. No rule of law authorizes use of “Orphan Works,” those for which there is no identifiable owner, but if a work was created after 1978, but before 1998, and has never been performed, notated or recorded on video, it can be argued that it is in the public domain. In 1998, Congress acted to add protection to works performed, but not sold or notated.

Does “due diligence”—a good faith effort to locate the owner—apply when a work is no longer in use by the choreographer or his or her company?

Jim Nelson, Houston Ballet’s General Manager, negotiates licensing for all rep except Artistic Director Stanton Welch’s works. “There is no ‘no longer in use’ subset of the rep,” says Nelson. “For maybe half the ballets, we obtain a limited use license. We almost never receive a license in perpetuity. So, at the end of five years, you would need to renew it. If we have built scenic and costume properties that take up too much warehouse space, or there’s dry rot, or stretch garments have lost their life, we get rid of or sell them. Unless we think we might re-use sets and costumes, we liquidate them. Maybe there’s a Robbins’ piece we’ve done, and a good chance we’ll do it again, where we’ve built the costumes and sets. We’ll hang on to them, and then re-license the work.”

“You could obtain an in-perpetuity license when the choreographer is not well known.” Nelson cites HB’s 1970s debut of Hans Van Manen’s Adagio Hammerklavier to which the company retains rights, as it does to James Kudelka’s The Little Dancer. “Today, they are big names, and it would be impossible to retain rights in perpetuity, but when it’s a world premiere, we are taking 100% of the risk, and should retain the rights. It doesn’t mean that if we haven’t performed it in the previous 18 months we won’t bring in the choreographer or a representative—we have to by law.”

Is an artistic director’s work treated differently? “Works created while the choreographer is artistic director remain in the repertoire,” explains Nelson, though the work itself belongs to the choreographer, and it is rare to completely eliminate it.

“It is not like a museum de-acquisitioning an art work. Because some ballets take up too much space, we have a huge rental business for those properties. Properties for Ben Stevenson’s Cinderella are among the most frequently rented. Though Stevenson, former Houston Ballet artistic director, is now directing Texas Ballet Theatre and owns the rights to the Cinderella choreography, HB owns the properties, as it does the sets and costumes built for Carousel, though Christopher Wheeldon owns the choreography.

Nelson details a contractual arrangement that allows use of Welch’s choreography by another company. “Company X contacts Stanton or myself as his representative, to express interest, and then a discussion opens up about the timeline, the dancers, ability to dance the work, whether they will perform it in one city or on tour, how many shows, and whether they want a 1-, 3- or 5-year license. Stanton would dictate who stages it, whether the company rents or builds sets and costumes; they then contact our designers to work out rental or rebuilding terms. It’s a pleasure to license a Jiri Kylian work because it’s ‘one-stop shopping’: Kylian Foundation offers a master license agreement covering everything.” In other instances, Nelson tracks down various design crafts to secure individual permissions. Fees vary vastly. Sometimes a license-holder feels that it is worthwhile to offer a discount, and just as it is rare to license all elements in a production under one agreement, it is unusual to pay all licensing costs with a lump sum.

White-knuckle moments arrive as discussions proceed or slow to a halt, and it is not unusual for Nelson to email a rights-holder 10 or 12 times before receiving an initial response. “It’s both a piece of art and a commodity, and artists are protective of their work. Sometimes costs are prohibitive and we simply can’t afford to mount it.”

“Advantages of negotiating,” says Nelson, “are that a company is often willing to take a risk with a new choreographer or a world premiere, and is rewarded with a generous license: A successful work can be licensed to the company in perpetuity, and there is an incentive for young or new choreographers to produce new work.”

Disadvantages are that it can be difficult to obtain rights. “You might get a ‘yes’ from everyone except the composer,” says Nelson. “Do we go forward and take a chance?

Since the law doesn’t recognize ‘a good faith effort,’ you must secure a license. We begin 18-24 months out to avoid problems. Unless I know for sure, I’m not going to announce, only to later have to pull it. Once you’ve announced, you lose your negotiating power. Much of a company’s identity is forged in relationships with guest choreographers. What do we have left to obtain? Museum collections can begin to look alike—one Rauschenberg, one Warhol, and one Chamberlain—individual identities are lost. We derive part of our identity from the great depth of Kylian repertoire developed recently. We had a stronger relationship with [Sir Kenneth] MacMillan under Ben; we do less MacMillan now, but more Balanchine.”

Nelson worries that smaller companies shirk licensing responsibilities. “It’s disrespectful to the artists. Maybe they’ve obtained rights to the choreography without rights to lighting, sets, costumes, etc. Lighting designers suffer the most.”

Janet Eilber, Artistic Director of the Martha Graham Center of Contemporary Dance, summarized the issues in her company’s litigation with Ron Protas: “It wasn’t clear whether her work was awarded to her personal heir, Ron Protas, or the Martha Graham Center. The Center had to win ownership because Protas’ management of the company had placed production of the work in such a precarious position.” The court awarded everything to The Center except public domain works or those commissioned by other companies, and two works owned personally by Graham, which reverted to Protas. The Center may use costumes, lighting, images, archives, posters and sets. Music belongs to the composer and must be licensed.

How did the victory affect company morale, internal life and the public? “It gave us a foundation to grow from,” says Eilber. “If definition hadn’t been secured, we’d still be on shifting ground; we could grow our own stewardship and confidently license works to others. Since then, there have been over 80 student presentations, enabling us to introduce her work to a new generation, utilize the talent pool in our school, reach new audiences, give the works a new lease on life and take more artistic risks. Funders see that we’re healthy and reliable, besides being the oldest and most venerable touchstone of American culture. The Martha Graham Company was the first United States company to tour Beijing, and has danced in Europe and several U.S cities since the victory. Lessons? “Don’t shy away from taking care of business,” says Eilber. “You are not selling out by putting things in writing. On the contrary, you are protecting a revolutionary oeuvre in a period when arts organizations are fighting to survive.”

This article appeared in the November 2010 issue of In Dance.

Toba Singer is former Senior Program Director of the Art and Music Center of the San Francisco Public Library. With a BA in History from the University of Massachusetts and a Masters in Library Science, she spent 30 years engaged in the struggles of working people as a steelworker, refinery worker, garment and airline worker. Her son James Gotesky dances with Houston Ballet. She is the author of First Position: a Century of Ballet Artists (Praeger 2007), and her book Fernando Alonso: the Art and Science of Ballet (University Press of Florida) will come out in September, 2011.