Caroline J.S. Picart[i]
Well before George Balanchine (1904-1983), Loïe Fuller (1862-1928), Isadora Duncan (1877-1927), Ruth St. Denis (1879-1968), and Martha Graham (1894-1991) pioneered American modern dance. They were white women working in male-dominated and visually racially-mixed theatrical markets (while maintaining the dominance of whiteness). Balanchine, a Russian émigré, was the first U.S. choreographer to acquire copyright protection for his choreographic works through his will,[ii] and eventually, it was through his estate that the first copyright infringement claim occurred.[iii]
Balanchine created the “standard look” of the hyper-whitened, ethereally slim ballerina, and with that, the history of copyrightable American modern dance choreography began. Balanchine’s choreography became institutionalized as “property”—one that the law regards as “whitened” enough to delimit from the public domain. And it is through Balanchine’s copyrighted choreography that his estate became powerful enough to lay claim on photographs of his choreography as corollary property.
Balanchine created a will bequeathing his ballets as property because of conversations with a lawyer, Theodore M. Sysol, whom Barbara Horgan, Balanchine’s personal assistant, had hired.[iv] Balanchine, who had always lived in the present and never thought about the future, found out that upon his death without a will, his sole heir would be his brother who lived in Georgia, in the Soviet Union.[v] Appalled, Balanchine was determined not to let all of his possessions go, not to his brother, but the Communist government, whom he suspected would claim everything.[vi] Initially, Balanchine thought his ballets were “not worth anything,”[vii] but the lawyer, knowing of the 1976 Copyright Act granting copyright protection to choreographic works, convinced Balanchine that the ballets could be bequeathed to Balanchine’s selected heirs.[viii] Galvanized into action, Balanchine drew up detailed lists of his ballets (fulfilling the “fixation” requirement for copyright protection), as well as his other assets.[ix] Balanchine signed the will on May 25, 1978; except for one minor modification, incorporated through a codicil on June 18, 1979, the will remained unchanged.[x]
Eventually, Balanchine’s ballets, inclusive of its look of hyper-whitened, impossibly thin feminine beauty, became delimited from the public sphere as private property. The ability to control not only performances of the ballets, but also their “look” or representation, now passed into the hands of Balanchine’s principal legatees: Tanaquil Le Clercq (his fourth and last wife, felled by polio at the height of her career, and from whom he obtained a Mexican divorce with the intent of pursuing Suzanne Farrell);[xi] Karin von Aroldingen (a prima ballerina who became a close Platonic friend to the aging choreographer after Farrell had rejected Balanchine’s romantic advances);[xii] and Barbara Horgan (Balanchine’s devoted personal assistant).[xiii]
Since Balanchine’s choreographic works were now legally delimited from the public domain, heirs of his intellectual property had to be vigilant that their newly acquired rights would not be violated. One such protective action, which resulted in a landmark copyright infringement case, Horgan v. McMillan,[xiv] was initiated in response to MacMillan’s publication of Ellen Switzer’s book, The Nutcracker: A Story & A Ballet, which had photographs of Balanchine’s version of The Nutcracker.[xv] The New York City Ballet Company’s “official photographers” took the photographs, and the Company, and its unions, as well as individual dancers, had granted permission to use the images.[xvi] Briefly, Horgan, as the executor of Balanchine’s estate, sought to block publication of the book by suing in the Federal District Court of New York on grounds of copyright infringement.[xvii] The district court ruled that because dance is an art of motion, still photographs, which capture static images, could not constitute infringement, since they could not sufficiently capture motion and thus, could not provide a basis for infringement.[xviii] Undeterred, Horgan appealed and this time, won.[xix] The appellate court held that the district court had applied the wrong test[xx] and reversed and remanded.[xxi] According to Chief Judge Wilfred Feinberg, the correct test to apply is “not whether the original could be re-created from the allegedly infringing copy, but whether the latter is ‘substantially similar’ to the former.”[xxii]
Horgan II thus completely reversed Horgan I. Where Horgan I left Balanchine’s estate with no control over photographic reproductions of the choreography, Horgan II left absolute control of photographic materials of Balanchine’s ballets in the hands of Balanchine’s estate. It is difficult to think of an exception that lies beyond Horgan II’s characterization of the “substantial similarity” test as applied to Caras and Costas’ photographs of Balanchine’s Nutcracker choreography. Such dominance of control over choreography is true, principally of Balanchine’s estate; crucial to establishing such control was Balanchine’s possession of whiteness as status property as a male ballet master.
[i] Caroline J. S. Picart is a J.D. Candidate (2012) at the University of Florida Levin College of Law; she was a tenured Associate Professor of English and Humanities, with a Courtesy Appointment at Florida State University Law School. She has a Ph.D. in Philosophy from Pennsylvania State University, and was a postdoctoral scholar at the Cornell University School of Criticism and Theory. The author thanks Kenneth Nunn, Danaya Wright, Jeffrey Lloyd and Gerardo Rivera for prior comments.
[ii] Bernard Taper, Balanchine: A Biography with a New Epilogue 399-400 (3d ed. 1996) (1984) .
[iii] Horgan v. MacMillan, Inc., 621 F. Supp. 1169 (S.D.N.Y. 1985) [Horgan I]; Horgan v. MacMillan, Inc., 789 F.2d 157 (2d Cir. 1986) [Horgan II].
[iv] Taper, supra note 2 at 399.
[vi] Id. at 400.
[xi] Id. at 324.
[xii] Id. at 341-42.
[xiii] Id. at 401.
[xiv] Horgan I, 621 F. Supp. at 1169; Horgan II, 789 F.2d at 157.
[xv] Horgan I, 621 F. Supp. at 1169.
[xvi] Id. at 1170 n.2.
[xvii] Id. at 1170.
[xix] Horgan II, 789 F.2d at 164.
[xx] Id. at 163.
[xxi] Id. at 164.
[xxii] Id. at 162.