Monday, July 24, 2006

A Dance to the Death?

Today's New York Times Arts section has an article on a bitter fight within the Connecticut dance troupe Pilobolus. (Pilobolus is a phototropic zygomycete, "a sun-loving fungus that grows in barnyards and pastures.") What motivated the story is unknown, although the Times discloses that the chairman of Pilobolus' board is married to a Times reporter, and article does, at least to me as an outsider, come off as very pro-management. Perhaps the article is meant to counter traction the story has gotten in other quarters.

The dispute recalls the bitter fight over rights to Martha Graham's choreography, sorted out by the Second Circuit in Martha Graham School & Dance Foundation, Inc. v. Martha Graham Center of Dance, Inc., 380 F.3d 624 (2d Cir. 2004)(Newman, J.), 2006 WL 1901021 (2d Cir. July 11, 11, 2006). The Martha Graham case presented substantially different facts, though, including a single creator and a corporation set up by her for tax reasons in which she became an employee.

In Pilobolus, you had four individuals, in the early 1970s, just as pop music was descending into a special type of Hell. After about 30 years, and financial problems, the company needed financial help. As part of securing that help, lenders may have required experienced management. That management came in 2004, and may have required that things be put on a "professional basis," that is, signed transfers and or work for hire agreements. Fur flew and one of the artistic directors was kicked out. Another supported his departed colleague, while two others seemingly sided with management, or at least went along with management's approach.

One result of that dispute is a dispute over ownership. The article quotes the Executive Director as saying "the dances had always been copyrighted by the company, and there was never any doubt that it owned the work." I searched the Copyright Office records and indeed the registrations - all of which were done in a single day, Sept. 26, 1991, 13 years before management came in - list the claimant as Pilobolus, Inc., and then give a work for hire attribution for the specific choreographers.

The registrations are though well more than 5 years after creation, and some of the works are 1909 Act works. I also don't know when the "Inc." was added to the company's name: one can't, after all, be a work for hire employee of a company that doesn't exist. One hopes this dispute doesn't become as protracted as the Martha Graham litigation; as noted above, the Second Circuit just issued another opinion in that case a little over a week ago.


Anonymous said...

Does merely labeling something a "work for hire" with the copyright office mean anything itself? Pilobolus was founded by 4 friends who brought in their college dance teacher to help them create new works. Though I don't know for sure, I would bet that their initial contracts weren't very clear on the works being for hire and thus owned by the company.
But even if, what sense does it make in situations like these for a founder/director to cede all control of her work to such a company. A closer look at the Martha Graham case shows inadaquacies in how the work for hire doctrine was applied (go back and look at CCNV). In the informal world of dance where lawyers are a luxury, the presumption in favor of works for hire seems a bit harsh, especially with what the Martha Graham case says.

William Patry said...


Certainly the large time gap between creation and registration means there is no presumption, and the faqcts that you give are an important consideration. I would want to know why the "inc.", when the "inc." and who thought what when the "inc." was set up. I would guess (but that is all), you are quite correct about the lack of any clear thought about work for hire, which was not clear even to lawyers at that time. Perhaps the founders thought of it in lay terms as joint venture. Clearly, dance has suffered from the fit-it-in-the-box work for hire doctrine.