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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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The Importance of...

August 30, 2004
Once Upon a Time Martha Graham Had an Employment AgreementEmail This EntryPrint This Entry
Posted by Ernest Miller

What is it with copyright lawyers and fairy tales? First, we have Andrew "Werdna" Greenberg, Vice-Chairman of the Intellectual Property Committee for the IEEE, writing fables about abusive copyright laws (A Copyright Fable Relevant to the INDUCE Act (IICA) and Other News and INDUCE Act (IICA) Roundup - Friday the 13th). Now, C.E. Petit is waxing fanciful about a recent copyright work-for-hire case (Red Hot Dancing Shoes).

Normally, I consider work for hire cases as interesting as, well, something that isn't very interesting. However, the case Petit discusses is one that many technologists should be concerned about because many of them might find themselves in similar positions:

Once upon a time, in a metropolis far closer than I'd prefer, a famous dancer—you'd know the name, even if you don't pay much attention to dance—decided that she needed the limited liability and tax advantages of a corporate structure. She therefore incorporated her thriving business, and became the owner, chief executive, employee, cook, and bottle washer. She continued her successful choreography for many years thereafter.

Then she died. And thus, a lawsuit was eventually born.

The corporation (which had split, and changed names) continued to exist, and was not owned by her heir. Both the corporation and the heir wanted to control the copyrights in the choreography. The evil fairies lawyers convinced each side that they were in the right. And so, they took their dispute to the Court at the Castle on the Hudson. Really, the Post Office on the Hudson; but that's a different tale, involving dwarves, architects, extortion, and nastiness that doesn't belong in a bedtime story—even one calculated to scare the living daylights out of the listeners, like this one.

The case is Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc. [PDF] and was decided by the Second Circuit on August 18th.

In the end, many of the copyrights stay with the corporation and don't go to the heir. Petit pulls out one important aspect of the holding:

[Appellant argues that] where a corporation is formed for the purpose of fostering a supportive environment in which an employed artist will have the opportunity to create new works, the default rule should leave the copyrights in the new works with the employee, and place on the employer the burden of pursuing a contract to obtain her copyrights. Whatever the intrinsic merit of such an approach, we conclude that its adoption is a matter of legislative choice for Congress in the future, not statutory interpretation for a court at present.
Why is this important to technologists? Petit explains:
It's time for the moral now. Why should techies, and for that matter anyone else, care about fifty-year-old choreographic notation? Principally because programmers, and many others, who create intellectual property frequently resort to creating small corporations without adequate legal counsel....Now, children, it's not bedtime yet. I want you all to write fifty times "I will not neglect to clarify copyright ownership in employment agreements" on the inside of your eyelids.

Category: Copyright

cypherpunk on August 30, 2004 07:32 PM writes...

Your story doesn't make sense. She was "owner, chief executive, employee, cook, and bottle washer". Then she died. And the business didn't go to her heir? Who else would it go to?

I think you must have forgotten to mention a tiny detail, like, she sold part of the business to someone else! Then of course it would be natural that the business owner would have a say in managing the assets of the business.

There's nothing IP specific about this, any kind of business related property might be subject to similar contests if the business paperwork leaves ownership unclear.

Permalink to Comment

CEP on August 30, 2004 08:08 PM writes...

The story truncates part of the involved corporate history. What we actually had was a nonprofit corporation (the "employer") that was later purchased by a separate nonprofit corporation of which Graham was not the owner (that survived and now asserts all of the WFH interests). The actual record is far more obtuse than that; and this is just the sanitized version that made it into the appellate opinion.

Permalink to Comment

greglas on August 30, 2004 10:17 PM writes...

Whatever Werdna does in fairy tale legal scholarship, it still can't top Wizardry. :-)

Permalink to Comment

Ernest Miller on August 30, 2004 11:24 PM writes...

Greglas, I couldn't agree more.

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