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1 CRITICAL RACE THEORY, GENDER, AMERICAN MODERN DANCE AND COPYRIGHT: A CRITICAL REVIEW OF CHOREOGRAPHY AS INTELLECTUAL PROPERTY By CAROLINE JOAN S. PICART A THESIS PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS UNIVERSITY OF FLORIDA 2013
2 2013 Caroline Joan S. Picart
3 To my loving and supportive husband, Jerry Rivera, whose patience, wisdom and compassion have sheltered me through many storms
4 ACKNOWLEDGMENTS I owe a debt of gratitude to the chair and members of my supervisory committee for their mentoring and supporti veness, the staff and faculty in the Center for Womens Studies and Gender Research at the University of Florida for their helpfulness, and the numerous University of Florida Levin Colle ge of Law faculty and administration who have assisted me in my pursuit of a jo int degree in Law and Womens Studies. I dedicate this thesis to both my beloved hus band, Jerry Rivera, and two families: the Picart family in the Philippines and the Terrell family in Tallahassee, Florida. I am also indebted to the Cardozo Journal of Law and Gender for granting copy right permission to reprint one of my articles, A Tango between Copyright and Critical Race Theory: Whiteness as Status Property in Balanchines Ballets, Fullers Serpentine Dance and Grahams Modern Dances which originally appeared in 18 Cardozo Journal of Law and Gender, No. 3 (Spring 2012); the article was an extr emely less developed precursor to this thesis.
5 TABLE OF CONTENTS page ACKNOWLEDG MENTS .................................................................................................. 4LIST OF FI GURES .......................................................................................................... 7ABSTRACT ..................................................................................................................... 8I INTRODUC TION .................................................................................................... 10Preliminary Remarks............................................................................................... 10Literature Review .................................................................................................... 18Whiteness, Property Law, and Critical Race Theor y ........................................ 18Unique Features of this Thes is ......................................................................... 25Copyright and Choreography: A Broad Historical Sketch ....................................... 30The Difficulties of Copyri ghting Dance C horeography ............................................ 34Organizational Schema ........................................................................................... 39II COMPARING AESTHETICS OF WH ITENESS AND NON-WHITENESS IN RELATION TO AMER ICAN DA NCE....................................................................... 43Preliminary Remarks............................................................................................... 43Establishing Whiteness in American Dance: Balanchine s Aesthet ic ................... 48A View of Non-Whiteness in Relation to Amer ican Danc e ...................................... 60Preliminary Remar ks ........................................................................................ 60Cohen Bulls Interpretation of Tradi tional Ghanaian Dance as an Example of One Non-Whit e Aesthet ic .......................................................................... 65White/Black Bodies in Relation to White/Black Aestheti cs ...................................... 73III LOE FULLER, GOD DESS OF LIGHT AND JOSEPHINE BAKER, BLACK VENUS: NON-NARRATIVE CHOREOGR APHY AS MERE SPECTACLE ......... 82Preliminary Remarks............................................................................................... 82Fullers Serpentine Dance ....................................................................................... 83The Genesis Stories and Legal Prec edent ....................................................... 83From Skirt Dancing to Art Nouv eau: The Rise of Loe Fulle r ............................ 87Ugly Duckling, Fairy, and Orientalist Temptress ............................................... 89La Loes Legacy .............................................................................................. 94Josephine Baker: Refracted Traces of a Non-White Aesthetic in American Dance .................................................................................................................. 96Preliminary Remar ks ........................................................................................ 96Josephine Baker: Icon, Idol, Tri ckster .............................................................. 98Baker and Fuller Co mpared .................................................................................. 109IV GEORGE BALANCHINE, GENIUS OF AMERICAN DANCE: WHITENESS, CHOREOGRAPHY, COPYRIGHTABILITY IN AMERICAN DANCE .................... 116
6 Preliminary Remarks: Establishing an Aesthetic of Whiteness ............................. 116Balanchines Will: Converting Choreographi c Works into Financ ial Assets .......... 125Horgan v. MacMillan : Choreography and Copyright Infringement ........................ 132Horgan I: The Reproducib ility Test ................................................................. 134Horgan II: The Substantial Si milarity Te st .................................................... 135Fuller and Balanchine and the Evolution of Whiteness as Status Property in Choreography .................................................................................................... 144V MARTHA GRAHAM, PICASSO OF AM ERICAN DANCE, AND KATHERINE DUNHAM, MATRIARCH OF BLACK DANCE: EXOTICISM AND NONWHITENESS IN AMERICAN DANCE ................................................................... 149Grahams Artistic Immortalit y ................................................................................ 149Preliminary Re marks ...................................................................................... 149Grahams Exotic Whitene ss ......................................................................... 150Martha Graham School and Dance Foundat ion, Inc. v. Martha Graham Center of Contemporary Dance, Inc .: The Work for Hir e Doctrine .............. 158Grahams dilemma: Fundi ng creativ ity ..................................................... 158The effect of Grahams death: The battle over ownership of Grahams choreographic works ............................................................................. 160Katherine Dunham: Matriarc h of Black Dance ...................................................... 166An Anthropologist with Hips ............................................................................ 166Dunhams Limina lities .................................................................................... 182Graham and Dunham: A Brief Sketch of Comparisons and Cross-Currents ......... 192VI CONCLUSIONS: QUO VADIS? ............................................................................ 201Summary of Fi ndings ............................................................................................ 201Quo Vadis: A Po stscript ........................................................................................ 216LIST OF REFE RENCES ............................................................................................. 222BIOGRAPHICAL SK ETCH .......................................................................................... 236
7 LIST OF FIGURES Figure page 3-1 Loe Fullers Ser pentine Danc e. ......................................................................... 83 3-2 Josephine Bake r, circa 1938. ............................................................................. 96 4-1 George Bal anchine. .......................................................................................... 116 5-1 Martha Graham and Bertram Ross. .................................................................. 150 5-2 Katherine Dunham. ........................................................................................... 168
8 Abstract of Thesis Pres ented to the Graduate School of the University of Florida in Partial Fulf illment of the Requirements for the Degr ee of Master of Arts CRITICAL RACE THEORY, GENDER, AMERICAN MODERN DANCE AND COPYRIGHT: A CRITICAL REVIEW OF CHOREOGRAPHY AS INTELLECTUAL PROPERTY By Caroline Joan S. Picart May 2013 Chair: Anita Anantharam Major: Womens Studies I begin by examining the conditions of po ssibility within which a white and nonwhite aesthetic in relation to American dance may be characterized, not to totalize these analytic categories, but as a rough heuristic in order to do a genealogy of how one particular white aesthetic Balanchines vision of ballet becomes enshrined as the paradigmatic case for full copyright protection. But mo re significantly, the central argument of this thesis is t hat the effort to win federal copyright protection for dance choreography in the United States wa s a simultaneously racialized and gendered contest. Copyright and choreography, parti cularly as tied with whiteness, have a refractory history. Unlike Loe Fulle r and Martha Graham, also both pioneers of American modern dance, George Balanchine, a Russian migr (and his estate), succeeded in gaining and maintaining full cont rol of his choreograp hic creations. A hyperwhitened aesthetic and Balanchines au thority as a white male ballet-master both manifestations of whiteness as status propertywere crucial to that success. Additionally, gender imbricates with race in this cultural imagination of a white versus a non-white dance aesthetic, much as postc olonial imaginings of a primitivist and
9 exotic other (in the case of Jo sephine Baker and Katherine Dunham, though differently), refracted through the prisms of stardom and image-making, connect to form a complex narrative. Finally, the thesis al so includes an analysis of how Baker and Dunham, despite their international celebrity, did not have full access to the same kind of status property their white female predecessors and contemporaries, Fuller and Graham, had.
10 CHAPTER I INTRODUCTION Preliminary Remarks Let me start with identifying the ground (how ever undulating) from which I speak, as I embark on this study. Western philosophy, as influenced by both modernist and scientific traditions, privileges logos (factual content) over ethos (character) and pathos (emotional appeal). Yet having been mentored, very effectively, by Nietzsche, to nurture an appreciation for both rhetoric and philosophy, I believe it is important to pay attention to all three: to who speaks, how she or he speaks (and for whom), and what she or he says (and why). The position from which I spring and to which I eventually return, in my concluding chapter, as out lined in an earlier book, Inside Notes from the Outside moves among, attempting to translate acro ss, multiply hybrid realms of being and becomingof being perpetually both inside and outside, negotiating differences and trying, in collaboration with other s, to translate, even if imperfectly between or among apparent incommensurabilities, knowing that translation, ultimately, can never be absolute or exact. I begin autoethnographically drawing from both Donna J. Haraways theories on cyborgs1 (hybrid beings) as well as my own experiences. Adapted with permission from Picart, Caroline Joan S. A Tango between Copyright and Critical Race Theory: Whiteness as Status Property in Balanchine s Ballets, Fullers Serpentine Dance and Grahams Modern Dances. Cardozo Journal of Law and Gender 18, No. 3 (Spring 2012): 685 -725. 1 Donna J. Haraway, A Cyborg Manifesto: Scienc e, Technology, and Socialist-Feminism in the Late Twentieth Century, in Simians, Cyborgs and Women: The Reinvention of Nature (New York: Routledge, 1991), 149. I explore the idea of autoethnography in Caroline Joan S. Picart, Inside Notes from the Outside (Lanham, MD: Lexington Press, 2004).
11 By the late twentieth century, our time a mythic time, we are all chimeras, theorized and fabricat ed hybrids in short, we are cyborgs. Donna Haraway, Simians, Cyborgs, and Women We were visiting with good friends, Roy and Leslie Engle, during the Christmas of 1998 at Stow, Ohio. As we sat across from each other, enjoying the meal, the warmth, and each others company, I became aw are of their three-year-old sons wideeyed gaze. Are you black, or are you white? Benjamins adorably dark brown eyes were unblinking. He look ed earnestly confused. I was told by friends that the eminent Sl avoj iek had asked similar questions as I stood at the podium, introducing him for Flori da State Universitys Colloquium Series in October 2000. Who is she? You must tell me, where is she from? he reportedly inquired, with an imperative tone, as I continued with my introduction. When he learned I was from the Philippines, he remarked, Ohyou mean, like Imelda Marcos? It is instances such as these two anecdotes that have spurred me to reflect on bodies, power, and identities. In both cases, the two inst ances apparently resolving the question concerning my identitythat is, that I am brown, nei ther black nor white, and that I hail from the same place as Asias glamorous and extravagant iron butterfly seem inadequate as labels. Somehow, there is something about these neat categories that, in Eliots terms, slip, slide, and perish will not stay in place. The politics of race, gender, and class has sparked much interest and even controversy in contemporary academic and wi der public circles. The questions with which I attempt to wrestle are not particu larly uncommon ones. They are issues that
12 have loomed over anyone who has had to come to terms with concrete, pragmatic questions regarding identity and courses of acti on within the interacting spheres of race, gender, class, and power. The specific cast I gi ve these questions and my attempts at seeking answers to them are formed by my own experiences as a woman of ambiguous ancestry raised in the Philippines; who wa s educated in the Philippines, England, and the United States as a biologist and philoso pher; and who has traveled in Europe, Asia, and the United States as an academic, artist, U.S. Open DanceSport2 champion, and most recently, a joint degree student of law and womens studies, specializing in Intellectual Property Law and International Law. Given my lens, it is not uncommon to hear stories of how law school education seems designed to be insulated from the ki nds of questions at the heart of womens studies and gender research. Though Critical Race Theory, LatCrit and Feminist Legal Theory scholars have done much to show how particularly Criminal Law and Property Law, for example, remain rooted within the hist orical conditions that produce categories of distinction between those who are priv ileged and those who are not, Intellectual Property, and especially Copyright in relati on to dance choreography in particular, for the most part, remain insulated from questi ons concerning power in relation to race, gender, class and sexuality. I remember taking a class on Copyright (which was well organized, engaging, and informational at many levels), but hearing, to my astonishment, the declaration that 2 DanceSport is the athletic, competitive form of ballroom dance; I specialize in Cabaret, which is a hybrid form mixing ballroom dance, ballet and gymnastics The term DanceSport was officially used by the IDSF (International DancesSport Federation), fo rmerly the IBDF (International Ballroom Dancing Federation), adopted the use of the term as a potentia l sport for inclusion in the Olympics. Caroline Joan S. Picart From Ballroom to DanceSport: Aest hetics, Athletics and Body Culture (Albany, NY: State University of New York Press), 70.
13 all copyright decisions are absolutely devoid of any aesthetic judgment and are simply based on a purely objective code-based evaluatio n, whose criterias historical genesis and underlying assumptions, in that particular class, remained largely unscrutinized. Perhaps it is too much to ask of an introduc tory class on copyright to be critical about the historical and socio-polit ical moorings of something as abstract and fluid as copyright. After all, in fairness, a general law school education is geared predominantly to produce practitionersvirtual gladiatorswho do not have the time or the luxury to worry about the whys behind the rules. All they are tested on, af ter three years of study, is knowledge of the rules and the ability to apply these rulesto win as many rhetorical battles as possible in the guardian ship and application of these rules, not to analyze their foundations or historical genesis. The work of critical reflection, to some extent, is left to specialized seminars and if one is so predisposed, to legal scholarship. Nevertheless, there is something about Inte llectual Property, and especially Copyright, that seems relatively immune from socio-political critique compared to, for example, Criminal Law or Property, w here categories of race, gender, class and sexuality are almost impossible to ignore. What prompts this thesis ar e a number of things: first, a resurgence of interest in Loe Fullers heritage as a pioneer of modern dance, as well as a continuing fascination with the details of Josephine Bakers, Geor ge Balanchines, Ma rtha Grahams and Katherine Dunhams lives, as evidenced by the virtual cottage industry of their biographies; second, except for, for example, Ke vin Greenes work, a lack of a sustained critical examination of connec tions binding copyright, choreography, and critical race theory. T he choreographic inheritances of Fuller, Baker, Balanchine,
14 Graham and Dunham are importa nt to map because these constitute crucial sites upon which negotiations on how to package bodiesboth of the choreographer and the performeras racialized and gendered are staged, re flective of larger social, political and cultural tensions, as revealed by the differential treatment in the reception of copyright claims. More importantly, the study of intelle ctual property still seems principally insulated from critical studies of culture, as if intellectual property (and in particular, copyright protection), and in this case, choreography were spawned, fully formed, independent of historical, politic al and cultural forces. Like all legal innovations, the evolution of choreographic wor ks from being federally non-c opyrightable, unless they partook of dramatic or narrative st ructures, to becoming a category of works potentially copyrightable under the 1976 Copyri ght Act, is a fascinating story. The principal historical markers t hat demarcate the temporal borders this thesis uses are the American copyright landmark ca ses, specifically in rela tion choreographic copyright, beginning with Fuller v. Bemis (1892),3 which established the precedent for why choreography was not copyrightable (at least not until the 1976 amendment of the Copyright Code); Horgan v. Macmillan II (1986),4 which established the template for what type of choreography is not only copyri ghtable but also fully protected from infringement; and Martha Graham School v. Ma rtha Graham Center III (2006),5 which 3 Fuller v. Bemis 50 F. 926 (C.C.S.D.N.Y. 1892). 4 Horgan v. MacMillan, Inc ., 789 F.2d 157 (2d. Cir. 1986). 5 Martha Graham Sch. & Dance Found., Inc. v. Martha Graham Ctr. of Contemporary Dance Inc. 455 F.3d 125 (2d Cir. 2006).
15 affirmed the findings of Martha Graham School v. Martha Graham Center II (2004),6 and opened up the legal possibility that ch oreographic works are not necessarily the intellectual property of their creatorthus loos ening the connection between choreographer and choreographic works. Though temporal boundaries can be laid out for copyright case law, geographical and national boundaries are more porous, especially when one deals with something like dance choreography, as what is American, is always and already rooted in a global context. Thus, Fullers attempt at seeking copyright protection in the U.S. has to be contextualized against her success in Paris as the Goddess of Light; Balanchines a ttempt to forge a pure r form of classical ballet, using untrained American bodies, has to be understood against the backdrop of his Russian background; some of Graham s modernist experiments have to be contextualized as responses to her travel s to South America, funded by grants; Dunhams ethno-choreography has to be analyz ed in relation to her anthropological fieldwork in the Caribbean and like Fuller and Ba ker, Dunhams stardom in Europe. The other significant factor to keep in mind is that choreographic innovation far outpaces what copyright law fixes as copyrightable, so there is often a significant time lag between actual choreographic pr oduction and presentation, and copyright protection, if protection ever even becom es possible. Nevertheless, crucial to this evolution of the relationship between copyright and choreography, in my view, drawing from Cheryl Harris 1993 Harvard Law Review article, is the development of whiteness as status propertyboth as an aesthetic and cultural force, and eventually, a legally a ccepted and protected form of property. Harris 6 Martha Graham Sch. & Dance Found., Inc. v. Ma rtha Graham Ctr. of Contemporary Dance, Inc. 380 F.3d 624 (2d Cir. 2004).
16 argues that historically, U.S. law has accorded holders of whiteness the same privileges and benefits accorded holder s of other types of property.7 This thesis is an extension of that argument, but equally important to map ar e gender and class, especially in relation to the star system. Thus, to enhance Harris characterization of whiteness, I also employ Kimberle Crenshaws intersectional model of critical race theory, showing that race, gender and class are interrelated, rather than isolated factors, in the negotiation of agency and identity.8 Yet probably the most directly relevant, to the approach I take, is Kenneth Nunns searing critique of Eurocent rism, as enshrined in law.9 There is much in Nunns critique of Eurocentrism that resonates with this cr itique of whiteness as property, especially his astute observation that [i]t is the core cultural dynami cs of Western societies that produce social structures in which male tr aits, material possessi ons and white racial characteristics are so highly privileged.10 Finally, Richard Dyers work on whiteness, although it has been employed more for film st udies, would also be of interest, because of the theatrical nature of performance dance, and its use of lighting to enhance visual 7 Cheryl Harris, Whit eness as Property, Harvard Law Review 106 (1993): 1731. 8 Kimberle Crenshaw, Mapping the Margins: Inte rsectionality, Identity Politics, and Violence Against Women of Color, in Critical Race Theory: The Key Writings that Formed the Movement eds. Kimberle Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas (New York: The New Press, 1995), 350. 9 Kenneth B. Nunn, Law as Eurocentric Enterprise, Law and Inequality 15 (1997): 323. See also, Reginald Leamon Robinson, Race, Myth and Narrative in the Social Construction of the Black Self, Howard Law Journal 40 (1996): 1. 10 Nunn, Law as Eurocentric Enterprise, 331. In te rms of international human rights law, Makau Mutua makes a similar critique. See generally, Makau Mutua, Kenya's Quest For Democracy: Taming Leviathan (Boulder, CO: Lynne Rienner Publishers, 2008); Makau Mutua, ed., Human Rights NGOs in East Africa: Political and Normative Tensions (Philadelphia, PA: University of Pennsylvania Press, 2008); Makau Mutua, Human Rights: A Political and Cultural Critique (Philadelphia, PA: University of Pennsylvania Press, 2008). I thank Berta Hernandez for this additi on as well as her mentorship on international law in general.
17 illusion.11 Given La Loes collaborations with early film auteurs and their experiments with light and black and white f ilm, as well as Grahams own experiments with film, light and shadow, Dyers approach has a particular relevance.12 Similarly, Balanchines choreography for Goldwyns American in Paris an updated Swan Lake in which the beauteous white nymph, Zorina, emerges from a pool at a garden party, to surrealistic effects, showed a brief flirtation with an experimentation with lig ht reminiscent of Fuller.13 It is noteworthy that all the figures I discuss in this thesisFuller, Baker, Balanchine, Graham and Dunhamall experiment ed with film, in different ways, either as a commercial, artistic, or in Dunhams case, even as a preliminary documentary mode for her anthropological studies and all of these figures (at least in their commercial or artistic forms) displayed, or were framed by, the ki nd of white aesthetic Dyer critiqued in his work. In addition, just as significant to observe is the fact that I us e big names in the history of dance to chart this relationship between copyright and choreography. This is because the nature of copyright law, as we shall see, mimes the modern attitude of elevating one rare individua lan authorial figure, or creatorwho creates something radically new and revolutionar y; the method this thesis em ploys, therefore, simply traces and mimes that logic, to uncover it s tensions, its hesitations, its anxieties. Thus, located within the context of my lar ger project, whiteness is really about having property (both tangibl e and intangible), being privile ged enough to be considered 11 Richard Dyer, White: Essays on Race and Culture (London and New York: Routledge, 1997). 12 For observations regarding Fulle rs cinematographic fairy tales, see Sally Sommer, Loe Fuller, The Drama Review 19 (1975): 65. 13 Bernard Taper, Balanchine: A Biography with a New Epilogue (Berkeley, CA: University of California Press, 1984).
18 an artist (i.e., one having the genius nec essary to create something original as opposed to something merely derivative), a nd consistently being protected by the law in a seemingly neutral proc ess. All these certainly implicate an analysis of the assumptions about authorship, creativity and property behind American copyright law, as it has evolved, mirroring the potentials and tensions of its hi storical moorings. The key questions this thesis grapples with are 1. What does one mean, as a rough heuristi c, by a white aesthetic and a nonwhite aesthetic? 2. How do race and gender, and to some ex tent, class, figure into Fullers and Bakers choreographic and impr ovisational legacies? 3. Why does Balanchines choreography succeed at gaining full copyright protection, where Fullers fails? 4. What accounts for the more refractory stories of success, in terms of copyright and choreography, for the case s of Graham and Dunham? 5. In brief, what possible new directions of inquiry could emerge from this study? Literature Review Whiteness, Property Law, and Critical Race Theory Debates about race and racial identity in addition to discussions regarding property rights and ownership have dominat ed much public discourse in the United States. In Whiteness as Property, Harris argued that racial identity and property are deeply interrelated concepts. Harris analyzed how whiteness, initially constructed as a form of racial identity evolved into a form of property historically and presently acknowledged and protec ted in American law.14 Harris tracked the origins of whiteness as property in the parallel systems of domination over Af rican-American and NativeAmerican races, out of which emerged raci ally contingent forms of property and 14 Harris, Whiteness as Property, 1716.
19 property rights. Even in the early years of this country, it was not the concept of race alone that operated to oppress Blacks and Indi ans; rather, it was the interaction between conceptions of race and property that played a critical role in establishing and maintaining racial and economic subordination.15 Harris tracked the theoretical genealogy of whiteness as property from its traditional, custom and identity-based roots, to more modern theories that move across power relations social expectations, and prestige.16 In a society structured on racial subordination, white privilege became an expectation, and whiteness became the quintessential pr operty for personhood.17 Harris argued that after the period of slavery and conquest, whiteness was constructed as the functional basis of racia lized privilege a type of status in which white racial identity provided the basis fo r allocating societal upward mobility and prestige, both private and public in character. [T]he law has accorded holders of whiteness the same privileges and benefits acco rded holders of other types of property. [inclusive of] the exclusive rights of posse ssion, use and disposition. Its attributes are the rights to transfer or alienability, the right to use and enjoyment, and the right to exclude others.18 Eventually, these rules and practices became legitimated in law as a type of status property. In constructing whiteness as property, the ideological move was to conceptualize white racial identity as an external thing in a constitutive sense accomplished in large measure by recogni zing the reputational interest in being regarded as white as a thing of significant val ue, which like other reputational interests, 15 Ibid. 16 Ibid., 1728-31. 17 Ibid., 1730. 18 Ibid., 1731.
20 was intrinsically bound up with identity and personhood.19 Thus, even when legal segregation was overturned, whiteness as pr operty continued to operate as an obstacle to effective change as the system of racial classification operated to uphold systemically entrenched power, as evidenced in Brown I and Brown II .20 Ultimately, Harris analyzed how the concept of whiteness as property per sists in current perceptions of racial identity, exemplified in the law's misperception of group i dentity, and in the Court's reasoning and decisions in the arena of affirmative action, given Brown I s and Brown II s refractory heritage, in relation to dismantling white privilege.21 Acknowledging the complexity and mobility of racial construction in relation to power, Kimberle Crenshaw proposes an int ersectional approach: one that takes into account how race gender, and class, for example, are not isolated i ndicia of personhood and privilege, but operate as concrete foundat ions of power, which interact, much like variables.22 Crenshaws focus is less on whitene ss and identity politics, than one of its counterparts, the experiences of violence liv ed by poor African-American women, which are institutionalized through an accretion of norms. Many women of color are burdened by property, child care responsibilities, and the lack of job skills. These burdens, largely the consequence of gender and class oppr ession, are then compounded by the racially discriminatory employm ent and housing practices often faced by women of color, as well as by the disproportionately high unemployment among people of color t hat makes battered women of color less able to depend on the support of fr iends and relatives for temporary shelter.23 19 Ibid., 1734. 20 Ibid., 1750-56. 21 Ibid., 1757. 22 Crenshaw, Mapping the Margins, 350. 23 Ibid., 358.
21 Nevertheless, like Harris, Crenshaw points out the reductive quality of identity politics and its failure to grapple with the lived power differentials, institutionalized through legal practices and social norms. Crenshaw argues that the problem with identity politics is, at a basic level, that it frequently c onflates or ignores intragroup differences, which in turn contributes to tension among groups.24 The ironic aftermath is that the liberatory agendas of feminist and ant iracist critique, rhetorically enacted in isolation from each other, serve to silence those who live intersectionally. Although racism and sexism readily intersect in the lives of real people they seldom do in feminist and antiracist practices. Thus, when the practices expound identity as woman or person of color as an either/or proposition, they relegate the identity of women of color to a location that resists telling.25 Using Harris notions of whiteness as property and Crenshaws intersectional approach, I tr ack how the concept of whiteness, mapped alongside variables of gender, class and national ity operated in the cases of Loe Fuller and George Balanchine, and his estate, whic h marks the insitutionalization of choreography as intell ectual property. Additionally, Kenneth Nunn outlines sev en characteristics of Eurocentric (whitened) culture; briefly summarized, t hese seven characteristics are dichotomous reasoning, employment of hier archies, analytical thought, objectification, abstraction, extreme rationalism and desacralization. Fi ve of these listed characteristics also emerge in this analysis of t he history of copyright and c horeography, instantiated, for example, in Fuller and Balanchine. These are 1.) dichotomous reasoning26 (here, 24 Ibid., 357. 25 Ibid. 26 Nunn, Law as Eurocentric Enterprise, 334.
22 emerging in the dichotomy between copyri ghted/copyrightable material and noncopyrightable/public domain material ; 2.) employment of hierarchies27 (here, in the elevation of copyrighted/copyrightable materi al as deserving of protection from unauthorized use, over non-copyrightable/publ ic domain work); 3.) analytical thought28 (here, in the creation of stars, who seem ethereally elevated above community connections as self-sufficient artist ic divinities); 4.) objectification29 (here, particularly evident in the treatment of Jo sephine Baker); 5.) abstraction30 (here, distilled excretions of ideas take precedent over ideas in context,31 as evidenced, for example, in Fullers spectacular world of illusion and non-corpor eality, and Balanchine s fantasy world of hyper-whitened, impossibly wa if-like ballerinas). However, Nunns final two characteristics dont really fit this particula r set of case studies: extreme rationalism and desacralization.32 Dance, being an art form, rather than a science, pr obably resists both characteristics, substituting expressiveness fo r strict rationality, and the sacralization of the artistic, for secular desacralization. Nevertheless, Nunns powerful critique of Eurocentrism buttresses this critique of whiteness as property, especially his astute observation that law works to legitimate white institutions and practices by helping to 27 Ibid., 335. 28 Ibid., 335-36. 29 Ibid., 336. 30 Ibid. 31 Ibid. 32 Ibid., 337.
23 place the imprimatur of universality on European practi ces and champion the desirability and inevitability of white dominance.33 Along a parallel track, Richard Dyer (in relation spec ifically to conventions of American Hollywood film and it s aesthetics) observes that whiteness is associated with power, heterosexuality, virtue, cleanliness, godliness, wealth, ethereality (if female), and universality.34 Whiteness, within the context of American history, unlike nonwhiteness, has often (not always, as there are alwa ys exceptions) been treated as a monolithic pass to privilege, perhaps legally traceable to the one drop rulewhere even just one drop of black blood was suffi cient legal basis to exclude a person from owning property to relegating them to the status of being property.35 Without devaluing these insights, the argument I make in this paper is more nuanced: that whiteness as property, too, is a contested and negotiated site of social re lation, rather than a fixed identity or thing that is owned. White privilege often maintains itself through an ambivalent posture of negation; it needs its other to disti nguish itself, and to establish its superiority. Yet wh iteness is not monolithic.36 Furthermore, possessors of white privilege are not uniformly privileged in an automatic and unproblematic manner. Additionally, white privileges underside is a fascination with and envy of, that which is non-white, which it appropriate s unto itself through its characterization of the exotic.37 33 Ibid., 351. 34 Dyer, White 3. 35 Joane Nagel, Race, Ethnicity and Sexuality: Intimate Intersections, Forbidden Frontiers (New York: Oxford University Press, 2003), 16. For an account of how what was a cultural rule became a legal rule, see Shirley Biagi and Marilyn Kern-Foxworth, Facing Difference: Race, Gender and Mass Media (Thousand Oaks: Pine Forge Press, 1997), 230. 36 Dyer, White 4. 37 See, for example, Edward W. Said, Orientalism (New York: Random House, 1978).
24 Of course, issues of race and privilege intersect with representations of gender and sexuality; however, because the artistic se lf-representations of the figures I study remains predominantly heterosexual (as does t he legal point of view, though implicitly, in the background), the focus of this t hesis remains predomi nantly on the complex relationship between sex and gender. In a groundbreaking observation regarding the interplay between performance and lived experience, which is appropriate to this analysis of performance and gend er via dance choreography, Judith Butler remarked: The act that gender is, the act that embodied agents are inasmuch as they dramatically and actively embody and, indeed, wear certain cu ltural significations, is clearly not one's act alone. Surely, there are nuanced and indivi dual ways of doing one' s gender, but that one does it, and that one does it in accord wit h certain sanctions and proscriptions, is clearly not a fully individual matter.38 This notion of gender as performance is particularly true of the wom en of color, Baker and Dunham though of course they are also present in Fullers image as an ether eal goddess of light and Grahams initially sexless solo performances. This is because as women of color, desp ite their celebrity, they had more limited access to whiteness as status property, compared to their white counterparts, Fuller and Graham. Though in all the womens cases, sex and gender trumped race, Fuller and Graham clearly were more empowered by both the cultural and legal systems than Baker and Dunham. Baker and Dunham, unlike Fuller and Gr aham, were burdened by the colonial myth of the Ebony Venus an ambival ent myth, beginning with Sara Baartman, enshrined in museum displays and iconized in popular culture. Thus, Ann Stolers work 38 Judith Butler, Performative Acts and Gender Cons titution: An Essay in Phenomenology and Feminist Theory, Theatre Journal 40, no. 4 (1988): 525.
25 on archives is important to some parts of this study because as Stoler noted, Parisian archives included cultural memories of B aartmans dissected genital apron as the trace that constituted her identity as a Black Venus, thus forging and strengthening codes of recognition and systems of expectation at the very heart of what we still need to learn about colonial polities.39 Baker and Dunham (Baker more so than Dunham) were thus particularly subject to these c odes of recognition and theatres of raced and gendered performance. Given these constrai nts, both women (and especially Baker) had to be, to some extent, complicit wit h her promoters and audi ences in order to operate successfully as artistic and commercial entities. As we shall see in Chapter II, Baker, for example, employed several evol ving performative strategies of image and identity construction, which both exploited, and were subject to, the raced and gendered expectations embedded in the Ebony Venus myth such as exoticizing race and gender; reversing racial and cultural codes and meanings; displaying difference through nudity, cross-dressing, song, and dance; expl oiting the images of difference; and universalizing the outcome to allow the per formative messages to reach broader based audiences.40 Unique Features of this Thesis Despite the plethora of biographical boo ks on especially Josephine Baker, George Balanchine, Martha Graham and Kat herine Dunham, and of various anthologies on critical race theory, few critical manuscripts examining the lacunae connecting 39 Ann Laura Stoler, Colonial Archiv es and Arts of Governance, Archival Science 2 (2002): 109. 40 Bennetta Jules-Rosette, Josephine Baker in Art and Life: The Icon and the Image (Champaign, IL: University of Illinoi s Press, 2007), 49.
26 whiteness, copyright protection and choreogr aphy exist. However, each of these related texts has some weaknesses this thesis aims to avoid. Some limit themselves purely to the study of non-white choreography created well before choreographic wor ks became potentially protected by federal law. For example, for all its critic al strengths, Anthea Krauts Choreographing the Folk: The Dance Stagings of Zora Neale Hurston41 focuses on Hurstons work in the 1930s when she produced theatrical concerts that depicted a day in the life of a railroad work camp in Florida that featured a Bahamian Fire Dance as the productions dramatic finale. Kraut, although she raises similar questions r egarding ownership and artistry, limits her analysis purely to the significance and influ ence of Hurstons little-known choreographic work. Some, despite the wealth of informat ion they provide regarding the nexus between critical race theory and copyrigh t, dont address choreography at all. For example, an essay in an anthology, Kevi n J. Greenes Papas Got a Brand New Bag: James Brown, Innovation, and Copyright Law,42 provides insightful descriptions of how the history of copyright, in relation to music, reifies the familiar st ories of innovation by African-American musical artist s, the perpetuation of racist stereotypes, and exploitation by the capitalist and whitened music industr y. Greene has written extensively on this topic, but focusing principally on Afri can-American musical artists, not on choreographers and dancers. 41 Anthea Kraut, Choreographing the Folk: The Dance Stagings of Zora Neale Hurston (Indigenous Americas) (Minneapolis, MN: University of Minnesota Press, 2008). 42 Kevin J. Greenes Papas Got a Brand New Bag: Ja mes Brown, Innovation, and Copyright Law, in African American Culture and Legal Discourse eds. Lovalerie King and Richard Schur (New York: Palgrave Macmillan, 2009), 177-190.
27 A plethora of authors prov ide popular accounts of connections between choreographic creation and copyright prot ection but dont prov ide a detailed and nuanced analysis of the relevant cases, or of the raced, gendered and sexualized dimensions of the bi ographical accounts of these key figures. For instance, Bernard Tapers Balanchine: A Biography with a New Epilogue43 gives a popular account of how Balanchines choreographic works were convert ed into intellectual property and became objects of ownership and dispute. Howeve r, it does not engage in depth with the cases, or the courts reasoning, relevant to ma intaining the border separating protected choreographic works from those in the public domain; neither does it reflect on the gendered, raced and classed dimensions of Ba lanchines comparatively easier ascent into artistic immortality compared to the women I study in this thesis. Along a parallel track, Ann Cooper Albrights Traces of Light: Absence and Presence in the Work of Loe Fuller ,44 provides an insightful scholarly account of Fullers rise to stardom. Albrights book includes a section on the Fuller v. Bemis trial, during which Fuller sued one of her co mpetitors for control over her serpentine dance. Albrights focus on Fullers aesthetic of whit eness supports my thesis, but Albright fails to account for why Balanchine, partaking of the same aesthetic of whiteness, succeeds where Fuller fails, though the analysis of t he performance of gender, race and class in Fullers theatres of light are fr ont and center to her project. On the other extreme, numer ous critical race theory anthologies abound, such as Critical Race Theory: The Key Wr itings that Formed the Movement edited by Kimberle 43 Bernard Taper, Balanchine: A Biography with a New Epilogue (Berkeley, CA: University of California Press, 1984). 44 Ann Cooper Albright, Traces of Light: Absence and Presence in the Work of Loe Fuller (Middletown, CT: Wesleyan University Press, 2007)
28 Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas;45 Critical Race Theory: The Cutting Edge 2nd ed., edited by Richard Delgado and Jean Stefancic;46 and Making Race Visible: Literacy Resear ch for Cultural Understanding edited by Stuart Greene and Dawn Abt-Perkins.47 However, while many of them harness various interdisciplinary perspectives, none of them coherently yoke t ogether a consistent theory of how whiteness operates in cultural and legal worlds in interaction with gender and class. In contrast, the following are a few distinctiv e features of this thesis. First, as a general historical account, it draws from what Bruno Latour analogously characterizes as the hot sites (before clear rhetorical lines have congealed)48 within which the relationships between copyright and choreography are forgedranging across biographical and autobiographical accounts, l egal cases, newspaper stories, artistic visual interpretations, among others. Furthe rmore, it examines the co-construction of whiteness against its exotic oth ers, and shows that the result ant narrative is complex, rather than one of simple domination bec ause women like Fuller and Graham, while having some access to white privilege as white women, were not autom atically entitled to full access as white women unlike Balanchine. This is not to discount the focus on non-whiteness, but it does emphasize that whiteness an d non-whiteness do not form a 45 Kimberle Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas, eds., Critical Race Theory: The Key Writings that Formed the Movement (New York: The New Press, 1995). 46 Richard Delgado and Jean Stefancic, eds. Critical Race Theory: The Cutting Edge 2nd ed. (Philadelphia, AP: Temple University Press, 2000). 47 Stuart Greene and Dawn Abt-Perkins, eds. Making Race Visible: Literacy Research for Cultural Understanding (New York: Teachers College Press, 2003). 48 Bruno Latour, Science in Action: How to Follow Scientists and Engineers Through Society (Cambridge, MA: Harvard University Press, 1987), 4.
29 simple binary, but a complex continuum that is constantly negotiated and mediated, not only through formal legal mechanisms but also through broader cultural forces. But the contrast between Balanchine and Dunham, for example, is striking, as it is clear that Dunham could easily have riva led Balanchine in forging a body of choreographic works capable of commanding intellect ual property protection, much as Balanchines estate, and to a less successful extent, Grahams estate did. Part of the answer for why that did not occur is complex, as Dunham was herself a fairly complected black woman with the whitened credentials of an ethnographerscholar, and there is some reason to believe that her physical attractivene ss and closeness to a Caucasian standard of beauty led to refractory receptions of her performances and c horeographic creations. Part of the answer, as well, is simp le: Dunham, though she had some access to whiteness as status property, was very well aw are of her liminal status, and as such did not push the issue of intellectual property ownership of her choreographic creations; furthermore, she passed away only in 2006, thus making it possible to defer the issue of intellectual property ownership of her choreographic works to later in her life, when she now had the established r enown of being the Matriarch of Black Dance. Second, as this thesis eventually show s, while there is a general type of whiteness that is privileged in relation to choreographic works (us ually conflated with aesthetic abstraction), there are different types of whitenesses, some of which appropriate aspects of the exoti c or non-white. Thus, this study differs from accounts of wholesale discrimination and exploitation unproblematically dichotomized along racial lines. What this thesis attempts to docum ent are the hesitations, the complexities, the ambiguities, not the ea sy generalizations.
30 Third, this thesis also argues that crucial to the formation of a successful form of whiteness in the development of c opyrightable choreographic works was the development of a star pers onaone delimited from a mass of skirt dancers; one able to conjure and embody the myth of the Ebony Cleopatra; one capable of drilling either light technicians or dancers into precise executors or quintessential embodiments of artistic visions; one with the reputation of Genius, Picasso of American Dance, or Matriarch of Black Dance. The construction of celebrity is intimately tied with the privileging of whiteness as an aesthetic, as the history of Hollywood film shows.49 Copyright and Choreography: A Broad Historical Sketch The U. S. Constitution grants Congress the power [t]o promote the Progress of Science and useful Arts, by securing for limit ed Times to Authors the exclusive Right to their respective writings .50 The framers of the Constitution enacted this clause with what appears to be very little elabor ation at the Constitutional Convention. Many of the colonies had already embodied t heir position on the issue of copyright in their own statutes and constitutions prior to the Constitutional Convention and this direction was consistent with t he direction many of the coloni es had taken in relation to copyright.51 The overtly stated purpose of copyright was to promote the public good by encouraging the development of creative works by compens ating the creator. Under common law and the 1909 Copyright Act, whic h was effective until 1978, choreography 49 Richard Dyer, White 82-102, 122-42. 50 U.S. Const. art. I, § 8, cl. 8. 51 See generally, United States Copyright Law: Copy right Clause and First Copyright Law, History of Copyright: What are Copyrights?, http://www.historyofcopyright.org/pb/wp _fe548a29/wp_fe548a29.html?0.9602877043269001.
31 was ineligible for the protection of copyright unless it was dramatic or dramaticomusical.52 Thus, the 1909 Copyright Act enabled copyright protection for abstract musical works and paintings but left abstrac t dance, devoid of narrative, unprotected. Music and painting were unfettered from the requirement of being attached to story. Dance, however, did have to narrate a plot, in order to become copyrightable.53 Although choreography in the U.S. was denied federal c opyright protection as such until 1978 (when 17 U.S. C. 106, the Copyright Act of 1976 was enacted),54 the struggle to win property ri ghts for dance choreography began, arguably, at least eight decades prior to that.55 For example, as we shall s ee in Chapter III, Loe Fuller, considered one of the mother s of modern dance, unsuccessfully sued one of her imitators in 1892 for performi ng an unauthorized copy of her Serpentine Dance.56 52 See Nicholas Arcomano, Choreography and Copyright, Part One, Dance Magazine April 1980, 5859. 53 See Gary D. Ordway, Cho reography and Copyright, Bulletin of the Copyright Society U.S.A. 13 (19651966): 225-240. 54 Melville B. Nimmer and David Nimmer, Nimmer on Copyright (New York: Matthew Bender, 1981), § 2.07[B]. 17 U.S.C. § 102 provides for se ven copyright subject matter, inclus ive of: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphi c, and sculptural works; motion pictures and audiovisual works; and sound reco rdings. See Melville B. Nimmer, The Subject Matter of Copyright Under the Act of 1976, UCLA Law Review 24 (1977): 978-1003. The amendments Congress did to produce the Copyright Code of 197 6 seemed to be spurred by both a forward-looking desire to join the Berne Convention, as well as the fo llowing factors: 1) due to increased life expectancy, the then-term of 56 years was not long enough for an author and his dependents to receive the economic benefits from his work; 2) growth in communication s media had greatly lengthened the commercial value of many works; 3) too short a term harms the author without giving any benefit to the public, as the public pay the same for a work in the public domain and publishers might be reluctant to invest in the dissemination of a work without the exclusive rights; 4) a large number of countries had adopted the term of life plus 50 years and with copyrighted works able to move across borders faster, it could have economic ramifications . United States Copy right Law: Copyright Clause and First Copyright Law, History of Copyright: What are Copyrights?, http://www.historyofcopyright.org/pb/wp _fe548a29/wp_fe548a29.html?0.9602877043269001. 55 See Julie Van Camp, Copyright of Choreographic Works, in 1994-95 Entertainment, Publishing and the Arts Handbook eds. Stephen F. Breimer, Robert Thorne, and John David Viera (New York: Clark, Boardman and Callaghan, 1994), 59-92, http:// www.csulb.edu/~jvancamp/copyrigh.html. 56 Fuller v. Bemis 50 F. 926 (C.C.S.D.N.Y. 1892).
32 Until 1978, the Courts, in their interp retation of the Constitutional Clause on Copyright, didnt find that abstract dance promoted the progress of science or the useful artsa position hel d, for example, in 1867 in Martinetti v. Maguire.57 In Martinetti the choreography in Black Crook, a pl ay or spectacle, was not abstract but it was dramatic.58 There was clearly a substantia l similarity between Black Crook, deemed the original, and Black Rook , the colorable imitation.59 Nevertheless, the court found the dramatic par t of the presentation immo ral and as such, promoted nothing useful for the arts.60 Thus, the court dismissively characterized the work as an indecent ballet.61 In the colorful language of the court: The Black Crook is a mere specta cle-in the language of the craft a spectacular piece. The dialogue is very scant and meaningless, and appears to be a mere accessory to the ac tion of the piece-a sort of verbal machinery tacked on to a succession of ballet and tableaux. The principal part and attraction of the spectacle seem s to be the exhibition of women in novel dress or no dress, and in attracti ve attitudes or action. To call such a spectacle a dramatic composition is an abuse of language, and an insult to the genius of the English drama. A menagerie of wild beasts, or an exhibition of model artistes might as just ly be called a dramatic composition. Like those, this is a spectacle, and although it may be an attractive or gorgeous one, it is nothing more. .62 There is no evidence indicating that the Court even saw the work in question. Relying purely on expert witness testimony, and in particular, on the statements of W.B. Hamilton, a well-known actor in Eu rope and America and stage manager of the 57 Martinetti v. Maguire 16 F.Cas. 920 (C.C.D. Cal. 1867). 58 Id. 59 Id. at 921. 60 Id. at 922. 61 Id. 62 Id.
33 Metropolitan, the court quickly arrived at the conclusion that the so -called play of the Black Crook has no originality, and that it consists almost wholly of scenic effects, or representations taken substantially from well-known dramas and operas.63 In the United States, because abstract c horeography couldnt be protected by copyright until the enactment of the 1976 Copy right Act, Balanchine initially believed most of his works were ineligible for copyright.64 As we shall see in greater depth in Chapter IV, it was only in 1978, after a heart attack, that Balanchine sought the advice of an estate attorney, mistakenly believing that his ballets couldnt be bequeathed by will.65 To his surprise, the lawyer claimed t hat they could be protected by copyright, once registered and bequeathed.66 Balanchine passed away five years later, on April 30, 1983.67 Unlike his star persona, who bowed to no one, Balanchines will acknowledged that dance has alwa ys been created and handed down through personal contact, and bequeath ed his ballets to his chosen heirs, Tanaquil LeClercq, Karin von Aroldingen, and Barbara Hor gan, who created the Balanchine Trust.68 Balanchine choreographed over 400 ballets, mo st of them abstract and devoid of plot. These ballets were presented as abstr act performances that enveloped the dancer and the audience in the performance rather than the plot.69 In terms of being free of 63 Id. 64 Taper, Balanchine: A Biography, 400. 65 Ibid. 66 Ibid. 67 Ibid. 68 Ibid., 401. 69 Lee Ann Torrance, Copyright and Dance, Explore! (blog), March 15, 2010, http://leeanntorrans.com/copyright-anddance (post discontinued).
34 narrative form, Balanchine s ballets bore a kinship to Fullers choreographic experiments.70 Nevertheless, where Fuller failed, Balanchine (and his estate) succeeded. Part of the the third chapter of th is thesis is principally about how Fullers failure in the legal arena was counterbal anced by her success in the popular arena. Ironically, popular cultural mechanisms ar guably better preserved her legacy than copyright could. That chapter also examin es the ambivalent gains of being able to copyright choreography against the cultural-l egal backdrop of whiteness as property. Prior to proceeding with the principal analytic sections of this thesis, I begin with a brief examination of why copyright and choreography in the U.S. have had such a refractory history. The Difficulties of Copyrighting Dance Choreography The U.S. Copyright Act of 1976, in or der to grant copyright protection to choreographic works, requires that these wo rks be fixed in any tangible medium of expression, now known or later develop ed, from which they can be perceived, reproduced, or otherwise communica ted, either directly or wit h the aid of a machine or device.71 However, dance choreographys im provisational and ephemeral qualities make it difficult to fix. Thus, correspondingly, Yeoh attribut es the paucity of case law 70 The restrictive effect of the Courts denial of copyright protection to Fuller (and how Fullers work prefigures modern music and dance) comes into sharp relief when one examines characterizations of modern music and dance stated by artists like John Cage and Merce Cunningham: We are not, in these dances, saying something [If] we were saying something we would use words. We are rather doing something There are no stories and no psychological problems. There is simply an activity of movement, sound, and light . John Percival, Experimental Dance (London: Studio Vista, 1971), 20 (emphasis added). 71 U.S. Copyright Office, Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code (Washington, DC: U.S. Copyright Office, 1978): § 102, http://www.copyright.gov/title17/92chap1.html#102.
35 on dance copyright to its ontological instability.72 Similarly, Sparshott points to some of the reasons why the history of dance chor eography in relation to copyright is thinly documented, pointing to dances non-verbal r epresentation and the scarcity of reliable records. The lack of any reliable and genera lly accessible way of recording dance has given it a fugitive nature. It has rendered dances unstabl e, depending on generations of dancers whose uncertain memories are a ssociated with their own styles and body habits.73 Copyrights history is bound up with printing and copying; given that backdrop, it is hardly surprising that dance, with its bod ily based and oral traditions, is an anomaly.74 In contrast, books are created in a manner that judges have no difficulty understanding through the combination of words into phrases, and cumulatively, phrases into sentences, until copyrightable material emerges.75 While choreography shares some of these properties, in terms of its buildi ng blocks, choreography differs from literary composition in that its fixation in a medium is separat e from its creation.76 Most choreographers have only a general idea, rather than an outli ne or detailed notes. Even if choreographers write down notes, these often are so incomplete that they do not rise to the level of being copyrightable.77 Choreography is thus analogous to a living 72 Francis Yeoh, The Value of Documenting Dance, Ballet-Dance Magazine June 2007, http://www.ballet-dance.com/200706/articles/Yeoh200706.html. 73 Francis Sparshott, A Measured Pace, Toward a Philosophical Understanding of the Arts of Dance (Toronto: University of Toronto Press, 1995), 420. 74 Leslie Erin Wallis, The Different Art: Choreography and Copyright, UCLA Law Review 33 (1986): 1459. 75 Ibid. 76 Ibid. 77 Cynthia Lyle, Dancers on Dancing (New York: Drake, 1977), 115.
36 sculpture, whose final form gets fixed bas ed on what transpires between choreographer and dancer, and the dancers physical limits.78 Traditionally, dancers have relied on memory to conserve and pass on choreography.79 Memory, clearly, is an unreliable me thod of fixation, and of preserving choreography. Nevertheless, the dancers memory, along with community norms, have been the traditional ways in which the danc e community has preserved dance, and prevented infringement, especially as t he costs of litigation often preempt choreographers from suing. Noting that c horeography is one of the least represented among the performing arts, Patry remarks: This very low figure [regarding the number of copyrighted choreographic works] corresponds to the legal liter ature on copyright and choreography, which repeatedly notes choreographers' decision not to rely on copyright and to instead develop their own "co mmunity" system of protection, protection believed to be better suited to choreography and providing better protection. The community syst em works in large part because of the concentration of choreographers in New York City, the tight-knit nature of dance companies, and the reputation within the community enjoyed by choreographers.80 Thus, choreographic works are created diffe rently from most art forms that judges adjudicate in copyright infringement ca ses. Furthermore, t he Copyright Office prefers forms of notations that are more pr ecise and text-based, but are not necessarily perceived as the most effective by the dance community. For exampl e, written notation systems, such as Labanotat ion and Benesh Notation,81 are preferred for their precision 78 Martha M. Traylor, Choreography, Pantom ime and the Copyright Revision Act of 1976, New England Law Review 16 (1980): 235, 237. 79 Ibid., 235, 238. 80 William Patry, Choreography and Al ternatives to Copyright Law, The Patry Copyright Blog August 18, 2005, http://williampatry.blogspot.com/2005/08/ choreography-and-alte rnatives-to.html. 81 Labanotation is the principal method employed to re cord choreography with symbols, but there are others as well. See generally Rudolf Benesh and Joan Benesh, An Introduction to Benesh Movement
37 and attention to detail.82 Unfortunately, the costs of using these methods are prohibitively expensivetwenty minutes of Labanotation can cost up to $12,000.83 Furthermore, the period of ti me required to notate the av erage ballet is approximately 10,000 hours.84 Film or videotape are possible to us e as alternative methods of fixation but they have their own drawback: [F]ilming, unlike labanotation [s ic], cannot preserve the clarity and definiti on of the individual movements co mprising the dance; a film, even running in slow motion, does not allow the vi ewer to separate the individual steps of a dance.85 Even more significantly, as the House Report to the 1976 Act made clear, even as Congress created a separate category for choreography, it chose not to define what choreographic works mean.86 The House Report claimed that the terms meaning was fairly settled and commonplace know ledge, not requiring definition.87 Maralasco asserted that the Register [o f Copyright] has the authority to interpret the copyright laws and its interpretations are entitl ed to judicial deference if reasonable.88 Thus, the original Compendium which described policy and pr ocedure for Copyright Office Notation (London: A & C Black, 1956); Leonide Massine, Massine on Choreography: Theory and Exercises in Composition (London: Faber &Faber, 1971). 82 U.S. Copyright Office Compendium II: Compendium of Copyright Office Practices (Washington, DC: U.S. Copyright Office, 1984), §§ 450.07(b), (c). 83 Margaret Putnam, Notation Ta kes Steps to Preserve Dance, Dallas Morning News December 6, 1998, 1C. 84 Joi Michelle Lakes, A Pas De Deux for Choreography and Copyright, New York University Law Review 80 (2005): 1854. 85 Melanie Cook, Moving to a New Beat: C opyright Protection for Choreographic Works, UCLA Law Review 24 (1976-1977), 1296. 86 H.R. Rep. No. 94-1476, at 53 (1976). See also Cook, Moving to a New Beat, 1288. 87 H.R. Rep. No. 94-1476, at 53-54 (1976). 88 Maralasco v. Fantasy, Inc. 953 F.2d 469, 473 (9th Cir. 1991).
38 staff, in relation to the 1909 Copyright Act, evolved; Compendium II which replaced the original Compendium was a manual produced by the United States Copyright Office, directed to policy unde r the 1976 Act, as amended.89 The earliest landmark federal case to address infringement of a choreographic work after the 1976 Copyright Act, Horgan v. MacMillan as we shall see in Chapter IV, used Compendium II s characterization of choreography.90 Choreography, according to Compendium II is the composition and arrangem ent of dance movements and patterns . Dance is static and kinetic successions of bodily movement in certain rhythmic and spatial relationships.91 The Copyright Office also specified that [s]ocial dance steps and simple routines such as the basic waltz step, the hustle step, and the second position of classical ballet di d not fulfill the requirements for copyright registration.92 Nevertheless, the Compendium also qualified its r egulations by stating that that these elements might be copyri ghtable if they were integrated into an otherwise registrable choreographic work and may be utilized as the choreographers basic material in much the same way that words are the writers basic material.93 To close this general historical sketch, what emerges is the observation that the relationship between copyright and dance chor eography remains in flux, sometimes in conjunction, and often in tense interplay. Unlike music and film or video, choreography has often been regarded as the invisible stepc hild among the copyrightable categories. 89 U.S. Copyright Office Compendium II: Compendium of Copyright Office Practices (Washington, DC: U.S. Copyright Office, 1984). 90 Horgan v. MacMillan 789 F.2d 157, 161 (2d Cir. 1986). 91 U.S. Copyright Office Compendium II, § 4500.01. 92 Ibid., § 450.06. 93 Ibid.
39 Although there are numerous factors that account for why this is, the critical factors this thesis focuses on are those that underlie the constructi on of whiteness as property, against the intersectional backdrop of ra ce, gender and to some extent, class. Organizational Schema The organizational scheme of this thesis is as follows: Chapter I Introduction: This chapter func tions principally as an explanation for the scope of the thesis (including key ques tions), and the various methodologies it employs. It also covers a brief review of other approaches explaining why copyright and choreography have had such a refractory history. Chapter II Comparing an Aesthetics of Whiteness and an Aesthetics of NonWhiteness: This chapter functions as a general schema in order to map out how whiteness functions as status property in re lation to choreographi c works. It is a general heuristic for mapping what constitute s a white aesthetic (which tended to be copyrightable) and a non-white aesthetic (which tended to be non-copyrightable), in the history of American dance from th e late 1800s to roughly the 1990s. Chapter III Loe Fuller, Goddess of Light, and Josephine Baker, Black Venus: Non-Narrative Choreography as Mere Spectacle: This chapter examines Loe Fullers (1862-1928) rise to stardom in Paris as La Loe and her failure to secure copyright rotection in the landmark trial, Fuller v. Bemis (1892). It also comparatively examines Josephine Bakers (1906-1975) equally phenomenal rise to becoming Europes Black Venus and examines why, if she had dared mount a claim for copyright protection for her dance improvisati ons like Fuller, such a claim would have failed even more miserably, despite her celebr ity. Crucial to the differences between the conditions of possibility within which Fulle r, as opposed to Bake r, could attempt to
40 claim ownership of her choreographic works was her possession of an aesthetic of whiteness and of whiteness as status proper ty, even if her sex and gender trumped her whiteness. Chapter IV George Balanchine, Geni us of American Dance: Whiteness, Choreography, Copyrightabili ty in American Dance: This chapter recounts George Balanchines (1904-1983) acquisition of the r eputation of being a genius; his lawyers successful conversion of his choreographic wor ks into copyrighted material via a will, and his estates eventual successful prot ection of his choreographic works from infringement in a protracted l egal battle that ended in 1986 ( Horgan v. Macmillan ). Crucial to that success was Balanchines es tablishment of an aesthetic of whiteness, through his ballets, as the template of copyrightable American dance, and his possession of white (male) pr ivilege as status property. Chapter V Martha Graham, Picasso of American Dance, and Katherine Dunham, Matriarch of Black Dance: Ex oticism and Non-Whiteness in American Dance: This chapter reviews Martha Grahams a scent to stardom as a white woman capable of forging her own chor eography, while appropriating the look of the exotic and rebelling against the conventions of ballet. It also analyzes how the Second Circuit eventually justified divesting her estate of control over her chor eographic works, in direct contrast to Balanchines es tate, in another long and bitter battle ( Martha Graham Sch. & Dance Found., Inc. v. Martha Gr aham Ctr. Of Contemporary Dance, Inc .) (2006). The chapter also briefly analyzes Katherine Dunhams establishment of a black ballet as a Matriarch of Black Dance. However, although she was very much Balanchines contemporary and in some instances, co-i nnovator of choreograp hic works, unlike
41 Balanchine, she did not receive credit for some of her choreographic works, despite their immense commercial su ccess, let alone copyright protection. Like Graham, Katherine Dunham (1909 -2006) was cons idered exoticbut less because she assumed exotic personae onstage through make-up and choreography, but because as a woman of color, she was comparatively light-skinned and was closer to the Caucasian ideal, as opposed to someone like Pearl Prim us, whose dark skin, larger frame, and more muscular movements were consider ed more authentically black than Dunham. Dunhams black ballets probably came cl osest to finding a fusion between an aesthetics of whiteness and an aesthetics of non-whiteness, despite the problem of colorism94 that persists. Nevertheless, like Graham, her choreographi c creations have not achieved the kind of copyright protection Balanchines ballets have. Crucial to that difference, once again, is the interplay bet ween race and gender, in the determination of who has access to whiteness as status property. Chapter VI Conclusions: Quo Vadis?: This chapter comparatively tracks how whiteness as status property, mapped in rela tion to gender and class, operated in the cases of Fuller, Balanchine, Graham, Ba ker and Dunham. It also includes new directions that could be explored, such as a further refinement or nuancing of Cohen Bulls description of an African aesthetic dr awing from African-c entered scholars such as Kariamu Welsh-Asante. In addition, additi onal inquiries that examine the legacies of Isadora Duncan and Ruth St. Denis, drawn agai nst the evolving relationships binding whiteness, choreography, and copyright would enhance this study. Furthermore, 94 Margaret Hunter describes colorism as the syst em that privileges the lighter-skinned over darkerskinned people within a community of color. Margaret H unter, If Youre Light, Youre Alright: Light Skin Color as Social Capital for Women of Color, Gender and Society 16 (2002): 176. See also Margaret Hunter, Race, Gender and the Politics of Skin Tone (New York: Taylor and Francis, 2005), 70.
42 analyses of the dance legacies of Ted Shawn, Merce Cunningham, Arthur Mitchell and Alvin Ailey would further round out this inquiry into the intersectionalities of race, gender and sexuality, with a focus on masculinitie s. Furthermore, mo re far-reaching ramifications, such as t he differences between the smooth or standard dances of competitive ballroom dance, which partake of an aesthetic of whiteness, and the Latin or rhythm dances of Danc eSport, which use an aesthetic of non-whiteness, could be explored, both in terms of choreo graphic and copyrightable possibilities.
43 CHAPTER II COMPARING AESTHETICS OF WHITENESS AND NON-WHITENESS IN RELATION TO AMERICAN DANCE1 Preliminary Remarks In this introductory chapter, I begin, pr eliminarily, with a simple binary, opposing an aesthetic of whiteness and non-whiteness only because it is analytically useful to start this way. I am in no wa y trying to exhaust what a whi te aesthetic or a non-white aesthetic mean; this is a pragmatic set of parameters, set up, not to forge absolute definitions, but to function as a general heuristic. One can begin to appreciate the chiaroscuros, the sfumatos the complex shading across categories, after one has established, at least in principle, the extreme ends of a spectrum. After I have characterized these categories, I can begi n to problematize the neat schematization (which I do in later chapters, in keeping with what the individual stories and historical data allow) because my purpose is neither to essentialize these categories nor to moralize about the inherent superiority of one aesthetic over the other or even to form a documentary description of the fundamentals to these tw o general aesthetics. Nor do I see it as my task, in this thes is, to correct (m oral) problems. My concern is first principally analytic which means what I strive to do is understand how cultural constructions (not fact ual or genetic categories), as historically grounded, often systematically and invisibly pr ivilege some categories, and not others. Certainly, moral implications and potential activi st projects could flow from this analysis. But these are not at the forefront of this project. My first im petus, as a budding legal scholar, is thisit is an attempt at a genealogy of how a whitened aesthetic (and a very 1 I am indebted to Patricia Hilliard-Nunn, for her ge nerous support and intellectual contributions to the development of this chapter.
44 specific one at that) hardens, in law, to become the authorized form the copyrightable form, as opposed to its other(s). I am not against examining moral implications, but they are not the main focus of this study. If they were, t hen I would use a very different approach, and a different set of theorist se.g., Levinas, Kant, Gandhi, maybe even Fanon, etc.overtly moral theorists, who use a different set of t ools and arguments, to make those kinds of arguments effectively. I am well aware and a ppreciative of the activist bent that is possible, as a result of this study. But this study simply begins the process of getting there; it makes no pretensions at hav ing forged absolute answers particularly in relation to what a non-white ae sthetic is, particularly given the historical and legal record, much of which is steeped in whiteness, rather than its others. Thus, what I focus on, in this pre liminary chapter, is a working schema, established in order to explore intersections between critical race theory, copyright and a certain period of American dance (the late 1800s until roughly 2006), not an attempt at totalization or an overtly morally driven pr oject. Moral questions, while they are important, are simply part of the destination, subtly embedded, not at the forefront. An analogous way of describing the prin cipal thrust or spirit of this thesis is to frame it in Habermasian terms: as an exercise in r easoned discourse within the public sphere.2 These constructions (whiteness/non-whit eness; masculinity/femininity) do not stay stable but like living organisms, evolve, in relation to each other, sometimes crossfertilizing to produce new strains, which in turn either spawn new variations or are reabsorbed back into the pre-existing classi fication (and hierarch y) of terms; my principal task is to try to illustrate that dynamic. To understand how whiteness is a 2 See Nancy Fraser, Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy, Social Text no. 25/26 (1990): 57.
45 property as much as an aesthetic, one mu st plot, to the ext ent one can, how systems function to produce these differences, in operat ion, as property is not about things it is about relations between entities (some of whom are persons) regarding the management of relations concerning the use and ownership of these thingssome of which are intangible, such as whiteness. T he larger metaphysical questions of what is property (especially intel lectual property) or what is art elude mechanical reductions, and I do not see the task of this project as finding an absolute answer to such questions. My task is much hum bler and more limited in scope. This chapter, in specific, focuses on 1.) Within the context of American dance, a preliminary sketch of what a "white" aesthetic looks like and how it functions to demarcate what passes as "artistry" (as opposed to what is "not-art") during a certai n period of the histor y of American Dance, as the template for what passes as copyright able begins to form. I focus mainly on the 20th Century as this period is crucial in the formation of what is distinctively American and modern in dance; it is also the peri od in which dance choreography becomes an independently listed legally copyrightable category, rather than being subsumed into being a certain type of dramatic work, requiring a narrative to be legally protectable as intellectual property. In t he context of my larger projec t, whiteness is really about having property (both tangi ble and intangible) and havin g others recognize that entitlement, being privileged enough to be cons idered an artist (i.e., one having the genius necessary to create something ori ginal as opposed to something merely derivative), and consistent ly being privileged by the la w in a seemingly neutral process, simply because law does not exist in a historical and cultural vacuum. As
46 Joseph Singer points out: Property law c oncerns the relations among people regarding the control, use and transfer of valued resources.3 This is simply an extrapolation to more intangible things and to the rela tions creating or barring access to these intangibles. All these certainly implic ate an analysis of the assumptions about authorship, creativity and property behind American copyright law, as it has evolved, mirroring the potentia ls and tensions of its historical moorings. In keeping with the development of the theoretical schem a of what I mean by whiteness (which is derived, to some extent, from Richard Dyers well known accountbut one that goes beyond film representations), in the larger project, I also focus in greater detail on describing how whiteness articulates with issues of gender and class in relation to the questions regarding whom copyright laws have traditionally protected, and what has counted as intellectual property t hat can be set apart from the public domain on legitimate grounds. Crucia l to this larger project are a.) ballets primacy and persistence as the principal body vocabulary in American dance; b.) Balanchines vision of the hyperwhitened baller ina as the still-reigning aesthetic model against which other dance body types are ma pped (and the drama of his attempting to marry and thus control all the women w ho embodied this ideal), and finally, c.) Balanchines unparalleled legal success and cult ural legacy compared to the ambiguous gains of two equally talented white women, Fuller and Graham. I do this analysis in depth in Chapter IV. 3 Joseph William Singer, Property Law: Rules, Policies and Practices 2nd ed. (New York: Aspen Law & Business, 1997), xli.
47 2.) As Jacques Derrida,4 Michel Foucault,5 Simone de Beauvoir,6 and Luce Irigaray,7 among others, have taught us, giv en how hegemonic discourses can only function against their less privileged ot hers, an analysis of how "whiteness" (both masculine and feminine) operates agai nst its non-white others is also crucial. And as Derrida in particular teaches us, a system of privilege works on sett ing up unproblematic dichotomies: white versus non-white, where nonwhiteness, a broader and necessarily vaguer category, is necessary in order to shore up the inherent superiority of the privileged term.8 For this chapter, my principal focus is on characterizing, as a general heuristic not one aimed to exhaust or totalize definit ionswhat I mean by whiteness or nonwhiteness as an aesthetic in American dance recognizable as such by, not so much specialized dance critics or experts in dance ethnography, but mo re importantly, lay audiences and courts, during the context of the times in which these particular aesthetics took specific form. Gender imbricates with race in this cultural imagination of a white versus a non-white aesthetic. Ne vertheless, the aesthetic frame, for this period, remains staunchly heterosexual much as class divisions inherent to those 4 Jacques Derrida, Writing and Difference trans. Alan Bass (Chicago: Univer sity of Chicago Press, 1978). 5 Michel Foucault, Discipline and Punish: The Birth of the Prison 2nd ed. (New York: Vintage, 1995). 6 Simone De Beauvoir, The Second Sex trans. Constance Borde and Sheila Malovany Chevallier (New York: Vintage, 2011). 7 Luce Irigaray, Marine Lover of Friedrich Nietzsche trans. Gillian C. Gill (New York: Columbia University Press, 1991). 8 Derrida notes: "In a classical philosophical oppositi on we are not dealing with the peaceful coexistence of a vis--vis, but rather with a violent hierarchy. One of the two terms governs the other (axiologically, logically, etc.), or has the upper hand." Jacque s Derrida, Interview with Julia Kristeva, in Positions trans. Alan Bass (Chicago: University of Chicago Press, 1981), 42.
48 frames remain essentially stable particu larly as stabilized by legal decisions concerning what furthers the progress of the arts. Establishing Whiteness in American Dance: Balanchines Aesthetic Richard Dyers canonical account of what w hiteness is associates it with power, heterosexuality, virtue, cleanliness, godlines s, wealth, ethereality (if female), and universality.9 Yet what does this description m ean, in terms understanding how bodies function as texts in dance and choreography? Is there such a thing as a white aesthetic, and if so, how is this aesthetic embodied and communicated to an audience acculturated to reading bodies styled and staged specifically to enact this aesthetic? As dance historians and ethnographers tell us the quintessential dance form that comes closest to Dyers characterization of a white aesthetic in dance is ballet. Historically, the origins of ballet are trac eable to the European courts of the sixteenth and seventeenth centuries. During the Renaiss ance, ballets were featured as part of lavish political spectacles in which the quality of movement and body carriage (or deportment) were viewed as visible manifestations of inner moral states, status, political authorization or resistance, and even divine association; that is, many ideals and conventions of the chivalric code became refi ned into aesthetic principles. Crucial to the production, consumption, and professionalization of this ar t form was the theatre of class and privilege. For the largely upper-class audience, going to the ballet was a social event of great importance; being seen at the theater by the right people was as important to some spectators as the stage spectacles they went to see. But the core of the exper ience remained the dancing of skilled 9 Dyer, White
49 professionals who were applauded for their feats of expressive and athletic grace. .10 For example, Louis XIVs 1672 founding of the first ballet academy led to the evolution of a complex proce ss of schooling in bodily tech niques, the production of illusion and spectacle, and the professionaliz ation of performers trained to enact these bodily scripts.11 By the early nineteenth century (the romantic period in ballet), the body vocabulary (and aesthetic) that persists even in todays ballet had congealed. Crucial to this aesthetic is the emphasis on an erect, uplifted spine, with an unbending torso, with shoulders pulled up and backa clearly aris tocratic bearing meant to embody courtly ideals. This close association between class ical ballet training, corporeal discipline, and (moral) purity continues to be extoll ed by various contemporary dance theorists. As Selma Jean Cohen notes: By ballet lets say we mean what is usually considered its quintessential style, classical, if by classical we mean pure. Lincoln Kirstein [Balanchines patron] onc e defined style as a moral virtue manifested in the conquest of untidy egotism; ballet as a clear if complex blending of human anatomy, solid geometry and ac robatics, offered as a symbolic demonstration of manners. . Adrian Stokes suggested deftness and economy or neatness; Edwin Denby cited lightness, elevation, and ease. Kirstein qualified: clean and open, grandiose without affectation, noble without pretension.12 Yet even more powerfully enduring was forg ing the convention of an illusion of weightlessnessa pre-requisite especially for ballerinas, whose technical virtuosity was geared towards the Romantic sensibility: t o express the beauty of the spirit that 10 Gerald Jonas, Dancing: The Pleasure, Power and Art of Movement (New York: Harry N. Abrams, 1998), 23. 11 Idid., 22. 12 Selma Jean Cohen, Next Week Swan Lake: Reflections on Dance and Dances, in What is Dance? eds. Roger Copeland and Marshall Cohen (New Yo rk: Oxford University Press, 1983), 341.
50 transcends the flesh.13 Indeed, popular lithographs of fa mous ballerinas in Romantic ballets such as La Sylphde and Giselle not only show them en pointe but actually depict them as floating above the earth, their feet barefootsymbolizing both the aspiration of freedom from c onstraints, and the colonial sensibility of expansion, exploration and exploitation.14 Interestingly, these romant ic ballets were called white ballets (named after the ballerinas reveal ing yet elegant tutus fashioned from white gauze).15 Nevertheless, that ideal of etherealit y or even non-corporeality, linked with a look of feminized hyper-whiteness, is one th at not only persists, but even reaches an extreme in Balanchines ballets, as we shall later see. Technically, that illusion of feminine ethereal ity is created by the cultivation of a full-180 degree turn-out; that is ballet students are required, early on, to stand, heel to heel, with their feet forming a perfectly straight line, thus providing a stable base for the five basic foot positions that serve as the foundations for more complex movements,16 combining foot positions and arm styling with shapes of the entire body and physical movements, such as pli (bend), tomb (fall), glissade (slide), relev (rise). More precisely, the turn-out, whic h begins with the feet but culmi nates in the rotation of the legs in the hip socket, manifests what Cohen describes as the principle of en dehors of being directed outwards, for maximum specularity.17 13 Jonas, Dancing 158. 14 Ibid. 15 Ibid. 16 Ibid. 17 Cohen, Next Week Swan Lake, 341.
51 Historically, this outwardness was dire cted frontally in keeping with what Havelock Ellis has termed the social discipline18a set of conventions shaped by European hierarchical class mores. Much as European conventions of painting reveal whose gaze mattersthe patronsso did the st aging of the ballet centralize towards a focal pointthe sovereigns gaze. When t he ballet moved from the ballroom to the theatre, the royal box became t he central axis, inhabited by the royal Presence. Thus, [t]he ballet dancers turnout from the hips (which ensures maximal opening of the body toward the front), the strongly frontal orientation of ba llet staging, even the proscenium stage itself can be traced to the European st age tradition that directed the performance toward the sovereign in attendance.19 Even if there is literally no sovereign who persists, there is a clear classed dimension in relation to who sits where in relation to the stage, and such a seating arrangement is aligned not onl y with being able to see the stage, but also to be seen as occupying that space. This stance of outwardnessof openness to the gaze could become vulnerability save for the aristocratic bearing of the c hest and the proud erectne ss of the body. In the full classical style, the entire person appears in extroversionopen to other bodies, open to the surrounding space. But not vulnerable, because the rib cage is held erect, confidently; the arms seem buoyantly lift ed away from the body, the head appears to float atop a long, vertical, relaxed spine.20 En dehors embodied is a clearly artificial one could say unnaturaldeportmen t; there is nothing useful or ordinary about it; it 18 Havelock Ellis, Dance of Life (Boston: Houghton Mifflin, 1923). 19 Jonas, Dancing 131. 20 Cohen, Next Week Swan Lake, 341.
52 exists only in the theatrical world of balle t, which is designed as an extra-ordinary world, and its only usefulness resides in its fa cilitation of this aest hetic of whiteness. A vital element of this aest hetic of whiteness, as we hav e seen, is the creation of an illusion of weightless ness, interpreted as ethereality, for the female form. For male dancers, however, weightlessness is interpret ed differentlyas aligned with verticality and with reason, since it relates to the height of the placement of the center of gravity in the body.21 Even more significantly, weightlessne ss in the male form is an expression of power, control and mastery. While women are required to maintain the illusion of appearing to virtually floating off the floor, m en are required to maintain the appearance of clean, muscular virtuosit y. As Cohen observes: Male dancers, including those who exce l in elevation, seldom produce an appearance of sheer lightness, for the man more often stresses vigor and firmness of stance and tread that s how him to be in command of the situation . The attack is strong but not heavy. Further, it never intrudes on, never distorts, the clean li ne of the movement .22 There are other aesthetic elem ents, characteristic of the balletic body vocabulary, which Cohen draws attention to a clarit y of line; a goal-oriented or efficiency of movement, with no extraneous effort discernible; a thoroughone could say martial discipline of the body.23 These elements are just as r equired for the individual dancer, as they are for the coor dinated movements of the corps de ballet which requires a military precision with a seeming effortless ness. For example, as Cohen points out, Balanchines Le Tombeau de Couperin depends for much of its effectiveness on the 21 Ibid., 342. 22 Ibid., 342-43. 23 Ibid., 343-44.
53 dancers precision in maintaining a series of intricate designs of lines and semi-circles and waving paths.24 Crucial to the balletic aesthetic is the conc ealment not simply of effort, but in the very effacement of physica lity. Starting at a very young age, ballet dancers spend hours practicing, drenched in sweat, muscles pus hed to their limit, with the ever-present danger of injury looming (or lived with) as they strain to partner se amlessly. Yet during the performance, the audience colludes in the e ffort to preserve t he aesthetic illusion, politely ignoring any inadvertent sound of foo tfalls. Indeed, to preserve the appearance of weightlessness, Balanchine cautioned hi s dancers not to rev eal any anticipatory breaks in a choreographic sequence that might foreshadow a major turn or spin.25 An anecdote about one of Balanchines classes illustrates the premium Balanchine placed on this component of a balletic aesthetic. [Balanchine] had the [dancers] line up and go separately across the room in a sequence combining a gliding st ep, a leap, an intermediate step, and another leap. When Violette Verdy had done this, he called her back and had her try it again, telli ng her that she must push forward on the glide, not rest on it. Miss Verdy, who was dr essed in a bright-blue sweater and black tights, with her golden hair in a shining topknot, nodded eagerly as she listened. As she went through it again, Balanchine cried at the start of second leap, Stay in the air! and in credibly, she seemed to obey this impossible command, hovering momentar ily in space like a hummingbird. There were gasps of appreciation fr om the other dancers. Balanchine nodded, the faintest trace of a smile on his lips. Tha ats right, he said. Youre getting it.26 Balanchines choreography was described as neoclassical precisely because it drew from this set of conventions and this type of body vocabulary. His innovations lay 24 Ibid., 344. 25 Jonas, Dancing 130. 26 Taper, Balanchine: A Biography, 293.
54 largely in further clarifying, speeding up, sharpening technique by focusing his dancers attentions to the smallest parts of our bodies; he showed them how a slightly misaligned instep or an imprecisely curled in dex finger could destroy the beauty of a step or pose.27 Under Balanchines tutelage, a more athletic, faster and sharper style of doing ballet emergedone even mo re resistant to gravity, but with the cool, hard edges of a modern aesthetic, which is par t of why Balanchine is recognized an a pioneer in American modern dance. In th e classroom [Balanchine] exhorted his dancers to lift their legs ever higher, even at the expense of perpendicular body alignment; he taught them to spring into jump s large and small by pushing off from the mid-metatarsal, not from the heel, as had been practiced for centuries .28 Another crucial element to Balanchine s choreography, which appeared to contribute to the perception of the purity of the lines of his work, was Balanchines devotion to the music to which he choreograp hed sequences of movements. To render clear what he called the shape of the notes, he sometimes c hose to set more steps to a single phrase (thus increasing speed), or at other times, recombined the steps in unexpected ways, appearing to r ender the steps in slow motion, but actually making the subtleties more central to the movement.29 Like Marius Petipa, Balanchines principal choreographic thrust was synchroni zing the structure of movement with the structure of the musical score, reminiscent of the classical view that architecture is frozen music and has the same carefully contro lled structure. Bala nchine proclaimed 27 Jonas, Dancing 130. 28 Nancy Reynolds and Malcolm McCormick, No Fixed Points: Dance in the Twentieth Century (New Haven and London: Yale Univ ersity Press, 2003), 300. 29 Ibid., 130-31.
55 that The structure of a ballet must be tigh t, compact, like the structure of a building; good ballets moved in measured space and time, like the planets.30 Robert Gottlieb, one of Balanchines biographer s, recounts one of Martha Gr ahams remarks about the process of watching Balanchine chor eograph during their joint venture, Episodes It is like watching light pass through a prism. The music passes through him, and in the same natural yet marvelous way that a pris m refracts light, he refracts music into dance.31 Institutionally, ballet reflects the hierar chical class system that spawned it. Dancers are ranked carefully according to experience and abilit y, and despite the apparent glorification of the female form as embodying the very essence of ballet, the puppet-masters backstage, the ballet ma sters and choreographers, remained male, and Balanchine is the quintessential example of that stature of privilege in modern American dance. Given the power and presti ge Balanchine possessed at the peak of his creative abilities, it is hardly surprisi ng that it is his aesthetic vision of the hyperfeminized (that is, hyperwhitened, immort ally young, ethereally slim and longlimbed) ballerina that came to be forged as t he required look of the authentic female ballet dancer. One of the qui ntessential embodiments of this aesthetic was one of Balanchines wivesTanaquil Le Clercq. Long, slender, and extremely supple, [Le Clercq] could give piquant accents to Bal anchines hip-protruding postures and angular body designs; in her demeanor, she was by turns chic, comic and teenage casual .32 30 Ibid., 227. 31 Robert Gottlieb, George Balanchine: The Ballet Maker (New York: HarperCollin s Publishers, 2004), 80. 32 Reynolds and McCormick, No Fixed Points 300.
56 One of the anecdotes about Ba lanchines transition from Russia to the U.S. was his rejection of even Alexandra Danilova, one of his former lovers and principal dancers, at the age of 27 and in her prim e, as too old for the ne w American ballet company he intended to form. Bernard Taper, one of Ba lanchines biographers, matter-of-factly observes that extreme youthfulnesseven more so than its European progenitorwas part of Balanchines envi saged aesthetic for the new American ballet company he intended to create from scratch: At that time [Balanchine rejected her expectant inquiry into the new American company he was forming] D anilova was twenty-seven years of age. She was just reaching her peak. Ahead of her were to be more than twenty years of glory and adulation So it is understandable that Balanchines words left her fuming. The fact was, however, that compared with the balleri nas Balanchine planned to employ, the twentyseven-year-old Danilova di d, indeed, seem venerable.33 Ballet, given its origins, as Cynthia Jean Cohen Bull pointed out, already hyperemphasized the sense of sight;34 ballerinas are trained to produce good lines through endless mimicry and repetition via the use of mi rrors. A ballerina lives in the constant glare of being visually compared to a hyperfe minized, ethereal ideal; she must never be allowed to age or to deviate physically from the idealized norm. Neither must she appear mortally histrionic; her general demeanor as the most important symbolic figure of the ballet, must be one of coolness and det achment, much like th e smooth and linear composition of the ballet. Balanchine disc ouraged his ballerinas from falling into Gisellitisa brooding and affected sentimentalism that tainted the purity of the lines 33 Taper, Balanchine: A Biography, 136. 34 Cynthia Jean Cohen Bull, Sense, Meaning and Perception in Three Dance Cultures, in Meaning in Motion ed. Jane C. Desmond (Durham, N.C.: Du ke University Press, 1997), 272.
57 he wished to create, using their bodies.35 For Balanchine, emotion was already integrated into the choreography; all he required, particularly fr om his ballerinas, is that they be cold angels.36 This is a characteristic very much in keeping with Nunns characterization of whiteness, privileging ra tional thought over body, as it is the choreographers abstract vision that dominat es the ballerinas bodies, viewed as Galatea-like matter to be sculpte d by a balletic Pygmalion. Furthermore, choreographers design movem ent with a great deal of spatial precision and the corps de ballet must not only move in unison but execute identical lines, against which a principa l dancer or soloist may display a stylistic uniqueness, such as phrasing as movement slightly diffe rently, to set herself apart, but only within very strict and highly visual parameters. Though music plays a crucial dimension, it is important that the musicians who generate the music be rendered invisible by locating them in the pit; while the sense of touch is paramount to a pas de deux between principal dancers, that sense of touch is always already interpreted in visual terms. The audience, schooled in these conventions, shares the same expectations regarding what constitutes a go od balletic aesthetic. [F]or the dancer, the edges and lines of the body as perceived by a viewer became paramount. Student s who do not possess a good line, that is, a slender, long-limbed body which can fo rm geometrically proportioned shapes, know that they will never be successful performers and are told so by teachers and administrators of professional schools. They may enjoy studying ballet, but they know they do not have the bodythe physical appearanceto be a real (pro fessional) ballet dancer. While having the body by no means provides sufficient basis for success, it is the necessary prerequisite.37 35 Jonas, Dancing 227. 36 Ibid. 37 Cohen Bull, Sense, Meaning and Perception, 272.
58 Ballet, thus, is most like film in this ar ea. It is meant to be consumed principally at the visual level, and as such, appeals to the most disembodied, and the most rational of the senses. And its gendered dy namic remains unabashedly heterosexual, with a strict demarcation of masculine power from feminine ethereality along with a clear visualization of ideal male and female body ty pes. There is, in ot her words, a strict distribution of gendered duties or properties appropriate to sexed male and female bodies in relation to each other. Although homosexual relationships can also reproduce the masculine-feminine dichotomy, these are not usually iconized, aesthetically, the way the heterosexual model is, in dance. Th is gendered dynamic and aesthetic illusion is especially evident in lifts. Lifts demand the participation of both dancers, the woman in many cases jumping with great energy and holding t he position of her body in the air as the man catches her and utilizes t he momentum of he r movement. Yet the ballerina looks as if she does very little, the lightness of her upper torso and arm motion in particular (a s well as her slender body and her ability to balance on the point of her foot) conveying weightlessness, airiness. The danseur in contrast, appears solid, stable, either firmly connected to the floor or propelled from it by virtue of his own strength. Paradoxically (magically), in many classical pas de deux in particular, the nearly disembodied female provides the primary image of the dance, while the fully embodied male nearly disappears from sight. As spectators, our eyes confirm the reality of the unreal, the fantasti c disembodiment of the body.38 Thus, we arrive at the point at which we began. Ballet, as the iconic example of a white aesthetic in American dance, disp lays many of the characteristics Richard Dyer observed in American Hollywood film. Hierarchy, virtue, rationality, linearity, heterosexuality, and non-corporea lity are crucial components of ballet, as a whitened dance form. 38 Ibid., 275.
59 In Balanchines work, one can find trac es that seem to authorize him as Americas premier guardian of these traditions For example, Suki Schorer, who had danced one of the pas de deux sequences in Balanchines The Four Temperaments remarked that the key to understanding the chor eography in that piece is to visualize the danseur as manipulating. totally controlling the girl. The boy should appear to be strummingplayingsome harp or cello. The girl is like an instrument.39 That remark, expressed by a ballerina, reveals how even women can be swept into fully acquiescing to, and embracing, an aesthetic that commodi fies women as instruments to be used by men. Perhaps even more tellingly, Balanchine s infamous remark that Ballet is woman earned him the wrath of many feminists, who inte rpreted his work as the ultimate expression of a patriarchal order aestheticized to reduce women, a la Laura Mulvey, to mere objects of the male gaze.40 And certainly, Balanchine referred to Suzanne Farrell, his ultimate muse, as my Stradivarius.41 The observation underlines the power of the choreographer and ballet master in relation to the dancers, both female and male, upon whose bodies he wrote his chor eographic texts. And such a hierarchy of power is inherent to the production of the kind of superhuman aesthetic characteristic of balletas an art form whos e origins lie in a Eurocentric aristocratic system; an art form clearly white ned when mapped in relation to its other correlates. 39 Jonas, Dancing 226. 40 Laura Mulvey, Visual Pleasure and Narrative Cinema, in The Sexual Subject: A Screen Reader in Sexuality (London and New York: Routledge, 1992), 22-34. 41 Jonas, Dancing 227.
60 A View of Non-Whiteness in Relation to American Dance Preliminary Remarks To begin to wrestle with what a non-whit e aesthetic is in American dance, one must return to one of the most fundamental distinctions in American culture, which, in dance as an art form, still remains at the culturally imagined bi nary between black (African) versus white (European) culture.42 Legally, of course, within the U.S., this dichotomy finds moorings in the one-dr op rulethat one drop of black blood, no matter how light (or close to white) ones co mplexion is, is sufficient to classify a miscegenated child as blackthat is, as proper ty, or later, as someone different to enough to treat as essentially a separate species. As Brenda Dixon Gottschild observes: Asians and Latinos have their own col onial and post-colonial crosses to bear; yet all peoples subjected to Europeanist influences grew up with comparable myths surrounding black infe riority and white superiority. I speak of a black/white axis of difference because this is the line of difference across which all peoples of color must choose sides: are you light enough to pass for white? Are you a white Latino? As an Asian, can 42 I am indebted to Patricia Hilliard-Nunn for advising me to choose, in this context, Black Aesthetic, which she traces to thinkers like Alain Locke, Larry N eal, Amiri Baraka and others. If I were to track the approach this thesis uses, it is more akin to Al ain Lockes philosophical approach, which is rooted in pragmatism. While the strong social activist element s characteristic of Larry Neals and Amiri Barakas viewpoints could flow from this analysis, my principal focus is, like Lockes, on establishing a schema for understanding how value systems work but as embodied in the collective imagination of dance, during a crucial time period in American dance, as the templa te for what passes as copyrightable and deserving of full protection, forms. This is not to say that I draw deeply from Lockes philosophy, but from his fundamental stance that these racial distinctions are cultural and value-laden, and one has to begin, first, with understanding the logic of these systems, in order to reveal their foundations, prior to taking the deconstructive turn. See generally Leonard Harris, ed., The Philosophy of Alain Locke: Harlem Renaissance and Beyond (Philadelphia: Temple University Press, 1989); Alain Locke, Art or Propaganda?, Harlem 1, no. 1 (1928): 1213, http://nationalhumanitiescenter.org /pds/maai3/protest/text10/lockearto rpropaganda.pdf; Larry Neal, The Black Arts Movement, Drama Review Summer 1968, http://nationalhumanitiescenter.org/pds/maai3/comm unity/text8/blackartsmov ement.pdf; Larry Neal, Visions of a Liberated Future: Black Arts Movement Writings ed. Michael Schwartz (New York: Thunder's Mouth Press, 1989); Amiri Baraka, The Leroi Jones/Amiri Baraka Reader 2nd ed., ed. William J. Harris (New York: Basic Books, 1999); Amiri Baraka, Somebody Blew Up America and Other Poems (New York: House of Nehesi Publishers, 2003).
61 you assimilate and become white? If you are of mixed ethnicity (well, arent we all?), will you list yourself as white or black?43 In attempting to describe what a non-whit e aesthetic might look like, Cynthia Jean Cohen Bull44 chose traditional Ghanaian dance as one of ballets counterpoints,45 probably largely because she wished to return to a radical opposition to balletone imaginatively unfetter ed from the trauma and histor y of slavery, attempting to reach back into deep African rootsa pr oject not too different from Katherine Dunhams project in its aspira tions, but with marked differenc es as well, as we shall later see in Chapter IV. I use traditional Ghanaian dance, building from Cohen Bulls description of it, purely as a culturally imagined counterpoint re flective of a non-white aesthetic. It is important to preface these remarks by adm itting that there are different types of whitenesses as there are different types of non-whitenesses. Just as Balanchines interpretation of ballet is only one among many interpretations of ballet, Cohen Bulls imagination of traditional Ghanaian dance is one representation among many of a Black aesthetic. Similarly, non-white does not have to mean only black. The schema begins this way because it is fundamenta lly genealogical in t he Nietzschean sense and 43 Brenda Dixon Gottschild, The Black Dancing Body: A Geography from Coon to Cool (New York: Palgrave Macmillan, 2003), 10. 44 Cynthia Jean Cohen Bull (a.k.a. Cynthia Nova ck) was a choreographer, dancer and scholar who pioneered the study of dance as a cultural practice through her book, Sharing the Dance: Contact Improvisation and American Culture (Madison, WI: University of Wisconsin Press, 1990). 45 Felix Begho, influenced by the work of Kariamu We lsh Asante, establishes a very detailed taxonomy of Nigerian dances, both traditional and contemporary Like Cohen Bull, he acknowledges that entertainment dances constitute an overwhelm ing preponderance of the dances. Felix Begho, Traditional African Dance in Context, in African Dance: An Artistic, Historical and Philosophical Inquiry ed. Kariamu Welsh Asante (Trenton, NJ: African Worl d Press, 1996), 174. Beghos focus, though, is not on the kinaesthetic or choreographic elements of these Nigerian dances, but what social functions they are associated with, whether sacred, ceremonial, ent ertainment or recreational, for example. Ibid.
62 begins with a mapping of mora ls: in the history of Americ an dance, Balanchines vision of what is pure in ballet has become the dominant paradigm of whiteness/art/the copyrightable. Culturally, the whiteblack dichotomy is one of the primal founding myths of American culture because of its hist ory of slavery, and this same dichotomy extends to the realm of the cultural val uation of dance. Part of the reason why imagining a counterpoint to Balanchines vision is important is that especially given the history of copyright in relation to choreograp hy, no such correlate existed, particularly during the time period when this template wa s being forged. My use of Cohen Bulls schema is thus partly rhetorical, partly im agined set up to visualize what Nietzsche would call one possible healthy and non-r eactive counterpoint to the dominant paradigm. The continuum I mean to set up, as a pre liminary way into the material, has to begin with relatively identifi able ends of the spectrum, even if these points are initially conceptually simplified. This is a rough schema, meant as a heuristic a guide to further exploration. I realize, of course, in following Cohen Bu lls lead, I face the Scylla and Charybdis of anyone who attempts this ki nd of work: that of appearing to either essentialize all African dance, thus losing ess ential specificities that characterize African dances, or just as badly, and perhaps essentially the same thing as the prior danger, to elevate Ghanaian dance, one specific regional type of African dance, into some kind of universal paradigm of all things African. N one of these, of course I intend to do. In addition, the reference point of the system I genea logize, given its historical and cultural moorings, is whiteness and as such, anythi ng constructed in relation to whiteness, even in opposition to it, is always already is im plied in relation to it. I cannot escape that
63 dynamic, if I am to begin with a critique from within, which is what I believe is the more difficult and in the long run, the more effective approach. A critique from the outside is easier to mount, but it can also be more easily dismissed or marginalized ghettoized (that is, allowed to exist, but only under special parameters as an isolated phenomenon, culturally tolerat ed out of political correctne ss but still relegated to the margins). This is not to say that white culture, no matter how dominant, is hermetically insulated from its others far from it. Appropriation without giving credit, particularly to women of color, is a common pattern of th is hegemonic system, especia lly in the history of American modern dance. Thus, while modern dance allowed for white women to represent the universal body (as in Martha Grahams sexlessness), the black body could only represent a black body, even if inadvertently extending the assumptions of minstrelsy.46 This is evidenced, for example, in Grahams appropriation of NativeAmerican culture in, for example, Primitive Mysteries (1931), or Balanchines treatment of Dunham in their collaboration on Cabin in the Sky (1940), as we shall see in Chapter IV. Dunhams remarks in an inte rview regarding her possible influence on Balanchine, as a result of their having co-choreographed Cabin are instructive, not only for their content, but also for their rhetor ical savviness, as we shall later see. She said, carefully: I think there was a meeting of the Georgian freedom of expression and the Georgian heat, you know, that he f ound a response to in the whole black element . 46 See Susan Manning, Black Voices, White Bodies: The Performance of Race and Gender in How Long Brethren, American Quarterly 50 (March 1998): 24-46.
64 In other words, I would see him dance or choreograph, and I would not see the blatant use of the pelvic girdle but I would feel behind it an affiliation with it. So I got to really appreciate him, that point of view. So Id say that some of our things put us at ease, le t him do things he might not have done otherwise. I do think the fr eeing of the pelvic girdle, I think he sort of was relieved to see it on the stage.47 I follow Cohen Bulls analysis, as a pre liminary analytic schem a for the following reasons. First, Cohen Bull is an estab lished dance ethnographer and has a clear description of what she views as the crucia l characteristics of what she considers traditional (and not simply c ontemporary) Ghanaian da nce; the parallel to Balanchines vision of ballet is apt, precisely because like Balanchines recasting of classical ballet into its modern form, it has both traditional and contemporary elem ents. Second, her analysis, precisely because it sets up such a dist inctive contrast to bal let, is rhetorically useful to me, in terms of c harting how or why ballet is set up as a reference point to its others, among which a certai n type of aesthetic, instantia ted, not totalized, by her description of traditional Ghanaian dance is. And in order to understand the particular time period which I am studying, that apparent unproblematic dichotomy one rhetorically constructed and mythologized is important to chart, before one can attempt to explode or deconstruct it. Third, that kind of cr itique is not specific to this type of study. As we shall see in Chapter IV, Dunham herself faced this kind of critique in her reinterpretation of her memory of her ethnographic studies into perform ance. The point of using Cohen Bulls interpretation of what she calls traditional Ghanaian dance in this preliminary chapter, is less to create a literal documentary descr iption of Ghanaian dance (and even less so 47 Constance Valis Hill, Collaborating with Balanchine on Cabin in the Sky : Interviews with Katherine Dunham, in Kaiso! Writings By and About Katherine Dunham eds. Vv A. Clark and Sara E. Johnson (Madison, WI: University of Wisconsin Press, 2005), 246-47.
65 about forming absolute generalizations about a ll African dances), t han as a rhetorical way to imagine a vibrant alternative to Balanc hines interpretation of classical ballet. This is an admittedly rough sketch, in order to set up the later discussions of Josephine Bakers and Katherine Dunhams non-white aesthetics, which partake of some characteristics of this rough (and probably id ealized) sketch, and deviate from it in others. Cohen Bulls Interpretation of Traditiona l Ghanaian Dance as an Example of One Non-White Aesthetic For Cohen Bull, if sight is the predomi nant sense cultivated by the ballet, hearing is the sense most acutely appealed to by tr aditional Ghanaian dance with its emphasis on the rhythmic interrelationship of differ ent drums with each other and the symbiotic relationship between the sound of the drums and the undulations of the dancers and the audience.48 For unlike ballet, which is tied to an artificial world, screened from the ordinary world and the hoi polloi traditional Ghanaian dance is tied up with lived experiences of being part of a community. Most Ghanaians learn the dancing of their own village and often those of neighboring vill ages, or, if living in a city, learn the traditional dances of their fa mily, neighbors, and friends.49 Again, unlike ballet, where the ballet masters vision dictates the dancer s movements, instructors remind students to say the drums in your mouth50 and to be aware and responsive to all the rhythms, communicating with and through the music, fo rging connection with the community of 48 Cohen Bull, Sharing the Dance 278-79. 49 Ibid., 278. Cohen Bull does not identify a specific ethnic Ghanaian group from which she builds these observations. But then again, neither does Beg ho, in his taxonomy of Nigerian dances. Begho, Traditional African Dance in Context, 163-82. Ulti mately, the kind of sketch Cohen Bull sets up is general enough that it could be said to transcend ethn ic and even national boundaries. I thank Patricia Hilliard-Nunn for this insight. 50 Cohen Bull, Sharing the Dance 279.
66 fellow dancers and the audience. Thus, in Cohen Bulls description of traditional Ghanaian dance, the notion of individualistic movement is antithetical as a good dancer is first and foremost one who learns to listen and observenot moving in silence (separated from the music) or isolation (separated from the group). Neither is it freeform as the movement, much lik e classical ballet, is tied to the music; the connection between movement and music is not arbitrar y. Although there is some room for variation, analogous to classical ballet, a go od dancer must seek to integrate into a larger whole. Self-expression does not appropria tely describe these individual statements, because they are explicit ly musical-choreo graphic in nature, shaped so as to enhance the entire performance. The experience of dancing and playing realizes and creates social val ues: flexibility within clear formal structures, participation by everyone, attentiveness of each individual to the group, maintenance of a sense of overall balance. The kinesthetic is tied to social relationships.51 Again, unlike ballet, where an erect to rso must be coordi nated with toe and hip alignments to create the illusi on of seamless weightlessness, as Cohen Bull describes it, traditional Ghanaian dance typically invo lves isolated undulations of body parts, whether they be the limbs, hips, shoulders ribs or head; ballets emphasis on an elevated spine, erect torso and upward-directed legs and toes is displaced by a virtual democracy of body parts, free to undulate separately, in keepi ng with the rhythms of the drums and bells. To attempt to give a label to this different kinaesthet ic dynamicone so radically different from ballet, Cohen Bull uses the wo rd Africanist, not black. For her, Africanist movement appears grounded, and the body vocabular y is poly-centered, in 51 Ibid.
67 keeping with poly-rhythmic music. However, this does not mean there are no rules and anything goes. From the Africanist pers pective, movement may originate from any body zone, and two or more areas of the body may simultaneously serve as centers of movement. Africanist-based movement is al so polyrhythmic. The feet may maintain one rhythm while torso, legs, arms danc e to the beat of different drums.52 Thus, for Cohen Bull, in keeping with this poly-rhythmicity of drums and democracy of body parts, the unison among dancer s is not strictly visually controlled and there is room for some degree of improvisation. D ancers mime and interact with the pattern of apart-playing where drums sustain one pa ttern in cross-rhythm to another, retain[ing] their pattern vis--vis th e bell part but do not sound in unison with it or with other drums, ex cept on isolated beats,53 while still coming together to form a polymetered beat. While there are leaders, su ch as a master drummer or lead dancer, who can signal the start of a new pattern, pr ecise uniform miming is not a requirement, and the audience is expected to join in, mo ving some body part(s) in a manner that complement/s the general rhyt hms. [W]hile dancers may appear unified, they seldom produce an exact spacial [sic] unison because the emphasis of their movement lies in rhythmic, dynamic action rather than on achi evement of a shape or line, as in ballet. Within the general framework of a step, one may let an arm swing slightly higher or lower or emphasize a movement more or less percussivelyin other words, one may improvise subtly within a tight rhythm ic and spacial [sic] framework. .54 Solo work is 52 Brenda Dixon Gottschild, Crossroads, Continuiti es, and Contradictions: The Afro-Euro-Caribbean Triangle, in Caribbean Dance from Abaku to Z ouk: How Movement Shapes Identity ed. Susanna Sloat (Gainesville, FL: University Pr ess of Florida, 2002), 5. 53 Cohen Bull, Sharing the Dance 279. 54 Ibid.
68 allowed within this framework, but this is created in response to an invitation by others, either by dancers momentarily stopping to wa tch, or a master drummer calling out to a particular dancer to perform.55 In other words, for Cohen Bull, unlike ba llet, where the choreographers vision constitutes the controlling overall script, her e, whatever script emerges in interaction with the musicians, dancers and audience, who are not strictly demarcated from each other either in role or function or spatial conf iguration. He or she (or in some cases, a pair of dancers) performs in the service of the group, playing with variations in response to the groups encouragement. Thus, chor eography becomes shaped by the rhythmic interaction of many people, rather than by a choreographers vision (a s in ballet) .56 Similarly, therefore, although professiona l dancers of traditional Ghanaian dance exist, for Cohen Bull, the gulf between the sk ill level of the professional and the nonprofessional is not as extreme as in t he ballet; she concludes that this does not necessarily mean professional performers of traditional Ghanaian are generally less skilled than ballet professionals.57 What it does reflect is that the general level of dancing and musical ability in Ghana ranks very high in comparison with the general 55 Cohen Bull acknowledges that leadership and coordi nation are elements of movement in her analysis of traditional Ghanaian dance, but these elements of sy nchronicity, in her view, do not necessarily require the same kind of exact military prec ision that a ballet corps does. 56 Cohen Bull, Sharing the Dance 281. 57 For Cohen Bull, what is groundbreaking about her vision of traditional Ghanaian dance is that it sets up a different type of community, opposed to the ballet corps, one potentially more democratic and less hierarchical. This is not intended to imply that Afri can dance, in general, is devoid of a long history or a method of professionalizing those who specialize in dance. Robert W. Nicholls affirms this aspect of Cohen Bulls characterization of African dance when he writes: The role of audience and performer is often interchangeable, and, depending on the occasion, the ranks of the spectators might be broken by an individual eager to demonstrate his or her own da ncing skills. Due to their multi-dimensional character, the integration of different art forms, and the lack of rigid distinctions between performers and audience, traditional dance performances might be descri bed as whole theater. Robert W. Nicholls, African Dance: Transition and Continuity, in African Dance: An Artistic, Historical and Philosophical Inquiry ed. Kariamu Welsh Asante (Trenton, NJ: African World Press, 1996), 44.
69 level among most populations in the United States, for instance.58 In other words, what is an immense, often class-based gulf in dance education in the U.S. is simply a continuum in Ghanaian culture. Similarly, although there are gender distin ctions in traditional Ghanaian dance, these are not as tightly demarcated as the world of ballet. For example, though quick slashing gestures and percussi ve accents are requirement s for the mens war dances, in general, in many group dances and also in partnered male-female dances, everyone does the same movement, that is, moveme nt within the same rhythmic and spatial parameters varied according to each indi viduals style, regardless of gender.59 Again, unlike the idealized balletic body that must remain eternally young (especially for the ballerinas; danseurs can be sometimes be literally aging Don Quixotes, as Balanchine unabashedly was, in relation to Suzanne Farrell but he is the except ion, not the rule), the dancer of the traditional G hanaian dance does not have to be young,60 the way Balanchines prima ballerinas had to beol der dancers can be rec ognized, without condescension, as skilled and subtle performers.61 58 Cohen Bull, Sharing the Dance 281. 59 Ibid. 60 Cohen Bull does not think there are no rules concer ning gender, or age, or specialization in traditional Ghanaian dance; she does think, in comparison with classical ballet, that there are more aesthetic possibilities that can be al lowed (e.g., in some contexts, in tradi tional Ghanaian dance older dancers are actually better dancers than younger dancers, whic h would normally be inconceivable in Balanchines world, unless, of course, one is Balanchine himsel f, who danced the part of Don Quixote with the then nineteen year old Suzanne Farrell as Dulcinea, his muse, in 1965, when Balanchine was 61. The performance has been generally regarded with emba rrassment by critics; to quote Reynolds and McCormick: The ballet [ Don Quixote ] as a whole, burdened by drab music and featuring an old man as the protagonist, never really came alive, but for Ba lanchine it was a unique and seemingly very personal experiment. . Reynolds and McCormick, No Fixed Points 522. 61 Cohen Bull, Sharing the Dance 281.
70 Brenda Dixon Gottschild differentiates bet ween being young (an attribute highly prized by Balanchine) and youthfulness or epheb ism (which is valued as part of what she calls an Africanist aesthetic).62 An ephebe (the ancient Greek word for a youth or young person) is not a litera lly young person, but one who displays power, vitality, attack, drive, and flexibility63traits that more mature dancers can possess along with the sophistication that experience brings. Robert Farris Thompson describes ephebism as the phrasing of every note and step with consummate vitality.64 For Gottschild, in terms of a kinaesthetic body vocabulary, ep hebism implies a supple, flexible torso, bending knees, and the ability and willingness to go down in order to be lifted up, literally and metaphorically: a flexibility that allows one to go with the flow and roll with the changes (of the dance, of life itself).65 It thus goes without sa ying that unlike ballet that has very strict parameters conc erning the professionalized dancing body and movements that are proper to particular sexes, traditional Ghanaian dance seems, comparatively, more open to physical differ ences in body types and different modes of interpreting the rhythm of the musi c, which is principally percussive. Similarly, the organization of space in traditional Ghanaian dance differs radically from the harnessing of space in ballet. The proscenium in balletic productions clearly demarcates who is a performer, to be looked at, and who is the audience, who does the looking. It is a more linear or hierarchical way of organizing space, such that it is clear where the sovereigns gaze/the gaze of t he most powerful patron is supposed to 62 Gottschild, Crossroads, Contin uities, and Contradictions, 4. 63 Ibid., 7. 64 Robert Farris Thompson, African Art in Motion (Los Angeles: University of California Press, 1979), 7. 65 Gottschild, Crossroads, Contin uities, and Contradictions, 7.
71 emanate. In contrast, tr aditional Ghanaian dances circular organization of space around a group of percussionists allows fo r a permeability between spectator and performer, and also the co-existence of multip le choreographies in motion, and multiple perspectives, from which these perform ances may be viewed or engaged with, in participation. Frequently there is more than one performance going on simultaneously. No one person is capable of knowing/seeing all that is going on at a particular moment in time.66 But this is not to be mistak en for chaos (a cultural bias emanating from those who s ee linear structure as s uperior to other possible alternatives). Instead, this is a democracy of structure that is characteristic of Africanistbased performance modes.67 Finally, whereas ballet as a European clas sical (white) dance form, attempts to erase the body using aesthetic illusion, to make it seem a manifestat ion of pure Spirit (or Reason), an Africanist (non-white) aes thetic appears to accept what Gottschild labels contradictions68 (from the point of view of the Enlightenment tradition) embracing, rather than dic hotomizing, body and mind/spir it. Thus, whereas ballet disciplines the body, making it a pliable vessel of t he choreographers vision, an 66 The kind of circles Cohen Bull talks about, in relation to traditional Ghanaian dance, are not circular theatres but are more akin to contemporary contact improvisation circles on the ground, in which participants and dancers literally form circles on the same floor, and take turns spectating and performing. Cynthia Jean Cohen Bull, Looking at Movement as Culture: Contact Improvisation to Disco, in Moving History/Dancing Cultures: A Dance History Reader eds. Ann Dils and Ann Cooper Albright (Middletown, CT: Wesleyan University Press, 2001), 406. Furthermore, the ty pe of central vantage pointgeared towards the gaze or spectatorship of a powerful patronCohen Bull speaks of is one deeply rooted in European traditions, iconized, for example, in not onl y the architecture of European theatre but also in their conventions of painting. S ee, for example, Mary D. Garrar d, Leonardo da Vinci and Creative Female Nature, in Feminism and Tradition in Aesthetics eds. Peggy Zeglin Brand and Carolyn Korsmeyer (University Park, PA: Pennsylvania State Univer sity Press, 1995), 326-53. 67 Gottschild, Crossroads, Contin uities, and Contradictions, 9. 68 Ibid., 5.
72 Africanist aesthetic embraces the principle of embodied wisdom,69 accepting the possibility that something other than Reason or Spirit, in the European Enlightenment tradition, inspires dancers to move (not simply a choreographer who orchestrates overall movement). Sheila Walker descri bes African dance: that the spirit dances in/through the bodies of its believers is an affi rmation and celebration of the fact that the universe is a dynamic process-in-moti on, rather than a static entity.70 Thus, if Balanchines (whitened) aesthetic for his ballerinas in particular, demanded being a cold Angel, then, in contras t, an Africanist (non-white) aest hetic requires of its dancers in general, whether male or female, em bodying The Coola body stance that integrates energy with composur e or hotness /engagement with coolness/detachment. Gay and Baber, for example, describe the cool in African dance and ritual as both spiritual and corporeal: a soul force that integrates energy, fiber, spirit and flair.71 To summarize, Brenda Dixon Gottschild poetic ally outlines what she views as the key elements of an Africanist (which, follo wing Hilliard-Nunns lead, I could re-name a black ) dance aesthetic: Bare feet in solid contact with t he earth; the ground as a medium to caress, stomp or to make contac t with the whole body (whether with serpentine, supplicatory, or some rsaulting movements) ; a grounded, getdown quality to the movement characterized by body asymmetry (knees bent, torso slightly pitched forward .); an overall polyphonic feel to the dance/dancing body (encompassing a dem ocratic equality of body parts, 69 See generally, Yvonne Daniel, Rumba: Dance and Social Change in Contemporary Cuba (Bloomington, IN: Indiana University Press, 1995 ). 70 See generally, Sheila S. Walker, Ceremonial Spirit Possession in Africa and Afro-America: Forms, Meanings, and Functional Significance for Individual Social Group (Leiden, Netherlands: Brill, 1972). 71 Geneva Gay and Willie L. Baber, Expressively Black: The Cult ural Basis of Ethnic Identity (New York: Praeger, 1987), 11.
73 with the center of energy, focus and gravity shifting through different body partspolycentric; as well as differ ent body parts moving to two or more meters or rhythmspolymetric and pol yrhythmic; articulation of the separate units of the torso (pelvis, chest, rib cage, buttocks); and a primary value placed on both individu al and group improvisation. .72 White/Black Bodies in Relati on to White/Black Aesthetics I began with giving a general description of how a white and non-white aesthetic may be characterized, in terms of ki naesthetic movement, historically based conventions of production and reception, gendered roles of performance, and body types preferred by (Balanchines vision of ) ballet and Ghanaian African dance. Yet is white skin (along with other implicitly whiten ed characteristics, such as the ethereally thin and long-limbed body type Balanchine preferred and properly pointed toes) necessary for a ballet (white) aesthetic? And is having black skin (along with other implicitly non-white characteristics, such as having a more muscular body, and having more pronounced exotic-erotic body parts, such as breasts and buttocks, and more heel) necessary for a black or non-white aesthetic? The initial, and certainly traditional answe rs, particularly for ballet, are clear. African-American women, espec ially those with dark complexions, were usually not hired, especially during t he 1920s-1930s, no matter how skilled they were because their skin color would break the uniformity of the corps de ballet Brenda Dixon Gottschild recounts a particular autobiographical incide nt that illustrated how racism had so radically penetrated the ballet aes thetic that it was used, un abashedly, as a justification for turning away a dancer for even just a small part in a balletmuch as the 72 Gottschild, The Black Dancing Body 15.
74 establishment of the Rockettes had used the same hook as the basis to hang their pre-formulated rejections of many talented darkly complected applicants. Still auditioning and still a neophyte danc er, I had an unsettling experience with choreographer Pe arl Lang. I responded to her call, not for a featured role but to work as a pick-up in a sm all chorus of four dancers. I was informed, after auditioning, that I could not be used because my skin color would destroy the unity of the corps. It struck me as ironic and frustrating that dancers could live in f antasy worlds, be Wilis or princesses, goddesses or witches, but black-skinned dancers in a dance based on a Greek-inspired theme woul d be detrimental to some principle of unity.73 In another of her books, Gott schild writes a biohistory of Joan Myers Brown, her determination to pursue her dream as a black ballerina, and her successful establishment of t he Philadelphia Dance Company (P hildanco, the trademark name), one of the few American black ballet dance tr oupes. Phildanco paved the way for other non-white dancers to enjoy lu crative careers and form successful non-white dance companies, such as the Alvin Ailey Am erican Dance Theatre and Jiri Kylians Netherlands Dance Theatre, on Br oadway as well as in Europe.74 It is important to note that for Joan Brown (JB, her preferred name) as for the m any talented black ballerinas whom she trained, dancing ballet was neither a rejection of ballets white aesthetic nor a rejection of her non-white raci al heritage. Rather, it was a rejection of the traditional ballet aesthetics banishment of non-white b odies from its enclave. Gottschild quotes Vanessa Thomas Smith, one of the renow ned ballerinas of Phildanco, and then contextualizes that statement, not as an interna lization of racism but as a rejection of it. So I got to feel that agai n in the ballet, and its the same feeling I have now when I teach these girls in class Aaaah! thats [sic] when I decided I was exquisite and that 73 Ibid., 4. 74 Brenda Dixon Gottschild, Joan Myers Brown and the Audacio us Hope of the Black Ballerina (New York: Palgrave Macmillan, 2012), xxvii.
75 I was pretty and that I was lovely and that I was all thesethat I was precious, lovely, angelicand, you know, all of the words t hat come when you think of a young lady doing ballet.75 Gottschild interprets Thomas Smit hs statement as a successful mastery of her image in both black and white worlds rather than as an indoctrination into a hegemonic white aesthetic. For Gottschild: Once again, we see the Du Bois tal ented-tenth concept at work, for, above all, the ballerina represents a European ideal. To the degree that black women master the genre, they become masters of their own image in both the black and white worlds. And it is important to read this information in context: to be a black bal lerina is not a simple rejection of ones African and African-American heritage but, inst ead, a challenge and victory over those who would say, Stay in your place; your body and abilities are not capable of doing this. Its an embr acing of our full heritageblack and whitejust as white Americans can see fit to embrace black genres.76 But despite this heroic and triumphant portr ait, Gottschilds biohistory of JBs story does not flinch from s howing how the racial system wo rked not simply to exclude all African-Americans (or force separate white versus black realms), but also to divide African-American dancers in terms of the lightness of t heir complexion (and their physical proximity to the Eu ropean ideal). Ananya Chatte rjea, in her Afterword on Gottschilds biohistorical account, characteri zes Gottschilds account as a Foucauldian project that genealogizes a complex and plur al narrative of the flows of power, authorship and artistic possibility. It is not just the black-white divide that creates exclusions; the racial hierarchy labors through the ways in which race and class collude and the color-caste system weeds out darke r-skinned dancers from the lighterskinned ones. There is also Philadel phias constant antagonism with New York City, the reputations that accrue to the two different cities and the opportunities they offer to dancers. These then further complicate the way 75 Vanessa Thomas Smith, quoted in Gottschild, Joan Myers Brown 127. 76 Gottschild, Joan Myers Brown 127.
76 struggles over funding, recepti on, and the management of never-enough resources cut across the dance world, differently, across the decades.77 And indeed, it is interesting that ulti mately, Phildancos eventual forging of a unique and commercially successful dance i dentity seems not to have been based on a black ballerinas successful integration into a white aesthetic, but on the centrality of the black danseurs who were, in the beginning, untrained football players. These initially untrained male dancers were given more mu scular and powerful moves (because they could not move like conventional ballet danseurs since they did not have the training) producing a more masculine aesthetic (even mo re muscular or powerful than their white counterparts but less refined in techni que). Thus, correspondingly, the ballerinas, to match the danseurs, had to be given stronger and more masculine lines as well. And this became the successful signature look of Phildanco. JB, in an interview with Gottschild, reminisced: That set the style for Phildanco becaus e those guys couldnt dance! They had no training, and Harold worked those guys so they looked good. Now, the girls were all trained. T he momentum he gave them was all very masculine. He wasnt giving them pi rouettes and tour jets. No: he was giving them stuff where they look ed [here she makes angular, masculine body gestures] you know so people always talk about Phildancos men were always so strong. So anybody I hired had to fit into that mold and thats kind of how I kept it. I like the big, strong men that look and I tell the guys if I wanted all girls Id hire all girls. You gotta be a man on my stage . [Gottschilds emphasis] .78 In some ways, Phildancos success at fo rging a successful identity as a ballet company turns the classic white aesthetic on its head. For no longer is the ethereal ballerina the principal focus; rather, it is the more muscular and physically prominent 77 Ananya Chatterjea, afterward to Joan Myers Brown and the Audacious Hope of the Black Ballerina by Brenda Dixon Gottschild (New York: Palgrave Macmillan, 2012), 260. 78 Joan Myers Brown, quoted in Gottschild Joan Myers Brown 119.
77 body of the danseur around whom movement is design ed. However, in order to preserve the (heterosexual) contrast between male and fema le bodies that the balletic aesthetic requires, black ballerinas, even if they had been trained classically, had to adapt to more muscular and angular lines. Correspondingly, black danseurs were placed under increasing pressure to prove their strength and masculinity compared with their female counterparts. Deborah Manni ng St. Charles, in an interview with Gottschild, recalled: Harold Pi erson instilled that in [the m en], constantly, constantly: You must be a man on stage: the women jump th is high, [then] you have to jump this high [namely, higher].79 This aesthetic illusion of powerful black masculine heterosexuality had nothing to do with reality, as many of Phildancos prominent male dancers were homosexuals, and JB prov ided a nondiscriminatory dance haven for them. The question of a dancers homosexuality bisexuality, or heterosexuality was of little interest to [JB]. She was build ing a dance company, and it was a signature profe ssional image that concer ned her. Being manly was an onstage aesthetic device, not a demand on the male dancers personal life. For JB, it was about the ballet tradition of the male dancer supporting the femalebeing the one to lift her, both literally and figuratively .80 Without detracting from Joan Myer s Browns and Phildancos numerous accomplishments, it is import ant to note that ultimately, the successful look the company forgedpartially out of accident, parti ally out of necessity, partially out of careful cultivationfitted easily into racial and sexual stereotypes. The powerful and muscular movements, racialized as natural to black bodies aesthetically styled as 79 Deborah Manning St. Charles, quoted in Gottschild Joan Myers Brown 119. 80 Gottschild, Joan Myers Brown 120.
78 heterosexual in their pairing, were very mu ch in keeping with the segregated worlds of white and black ballet. Related questions thus surface: is it possible for a black skinned dancer/choreographer to take w hitened elements, or for a white choreographer to adapt elements from a non-white aesthetic, and to break completely free of the whiteversus-non-white aesthetic dichotomy and more importantly, its hierarchy of power? Even here, the answer seems persistently diffi cult because categories of whiteness and non-whiteness remain stubbornly dichot omous, largely because of a persistently hierarchical cultural valuation. When Alvin Ailey combines African-Amer ican elements of dance with ballet, that is not black appropriation because non-whites marginalized in the dominant culture, are in no position to appropria te; the best they can do withi n the hierarchy, as Dunham does, as we shall see in Chapter IV, is come closer to a whitened idealand even that is a refractory process, both advantageous and disadvantageous. When Arthur Mitchell, like JB, founds a ballet company of black dancers performing white-based balletic technique, their productions remain second ary to white productions. And black dancers, even when they innovate, tend to be generally praised as dancers, not as choreographers (i.e., authors/creators/o wners of dance movements understood as property). When black dancers organize successful dance companies, comparisons maintain the racial splits, as if it were in conceivable to cross racial lines. Gottschild recounts an interview with JB, during which JB bristled with animosity: In Standing at the Edge, We Dance, a video about Phildanco made by Carmella Vassor in 2001, .[JB] mentions that someone asked her, What makes your company different fr om Alvin Ailey? Her response: What makes my company different from Eliot Feld or Paul Taylor?!
79 Again, the dance world seems not so much to democratically self-select but to dictatorially segregate by c ontinuing to categorize along racial lines.81 When Balanchine uses one black danseur like Arthur Mitchell, precisely because he views black skin as part of a costuming aesthetic, does that break the hegemony of the whiteness of his aesthetic? When Bal anchine incorporates a non-white element, such as a contraction, in his remake of The Firebird which features a Native-American ballerina, Maria Tallchief, as it s principal dancer, does that make the over all trajectory of his oeuvre less whitened? And when Martha Graham makes contraction and release her principal body vocabulary, does that make her dancing less white? When she uses black and Asian dancers in her choreography, as mise en scene against which her agency, as choreographer-principal dancer is displayed, is she any less whitened (or masculinized in relation to her danc ers) than Balanchine? Are there concrete senses in which Fuller, Balanchi ne and Graham partook of whiteness-asproperty/privilege in ways that we re inaccessible to their non-white performer/dancer/choreographer contemporaries, such as Josephine Baker and Katherine Dunham? As a counterpoint, Josephine Baker, lik e Loe Fuller, was an American expatriate with working class origins who achieved icon ic success in Paris. Both women took Paris by storm as aesthetic inspirations, but why was Fullers aesthetic as a goddess of light kept sharply demarcated from Bakers aesthetic as a Black Venus? How was it that it was Fuller who dared mount the first copyright la wsuit over choreographic creation as her intellectual property, while su ch an option was never possible for Baker, 81 Gottschild, The Black Dancing Body 76.
80 despite her equally iconic status? And as a furt her contrast to Balanchine, how is it that Katherine Dunham, with her ac ademic and scholarly training as both an anthropologist and dancer from the University of Ch icago, and ethnography-based choreography derived from her fieldwork in the Caribbean, has not achi eved the kind of choreographic immortality associated wit h George Balanchine, her less academically trained contemporary, and with whom she co llaborated on negro ballets? These are difficult questions, requiring ca reful analysis, not in an abstract sense, but in a nuanced, genealogical manner, trac king the complex intersections between their private lives, their public personae, t heir improvisations/choreographic creations, and how their different audiences interpreted t heir dance movements in relation to their skin color/racial affinity/racial costuming. I engage these questions in the next chapters of this thesis. What emerges from this chapter is a clearer template of whiteness as an aesthetic. Thus, describing the dynamic of whiteness versus its ot hers from within this relationship, the characterization of what is "not-white" remains deliberately looser as that is always that way whiteness as st atus property has functioned historically, especially in both dance choreography and law. Privilege often operates precisely by clarifying who is at the top of the hierarchy, but keeping the category of who is not privileged and why, fuzzy as Derrida has taught us through his deployment of critical techniques of deconstruction.82 From the point of view of someone like Dunham, as I shall sh ow in Chapter IV, the moral thrust and the activist strain are at the forefront. Wh ile certainly American 82 See Derrida, Interview wi th Julia Kris teva, 42-43.
81 culture draws heavily from non-white elements ( not simply Africanist or Negro or black culture but other cultures as wellAsian, Indian, et c.), the legal perspective, especially in the realm of aesthetics, lags far behind t hat cultural appropriation and in some cases, synthesis. And the black-white divide rema ins the paramount category with which to grapple, despite the onslaught of postmodernism in other ar eas of study; law, like the hard sciences, remains staunchly impervious, des pite some courses on this topic in some law schools. Copyright in particu lar is and has remained whitened, especially during this time period I am studying, when t he template for what is choreographically copyrightable is forming. The parameters of this study covers roughly the late 19th century to 2006, legallynot what is currently availabl e choreographically at a cultural level.83 While many developments have occurr ed, for the most part, c opyright has remained, in relation to choreography anyway, staunchly and re siliently white, even as choreography, as an art form, has evolved bey ond the black-white binary. 83 See, for example, Thomas DeFrantzs essay, comparing the Urban Bushwomens choreographic treatment of booty control with Phildancos vers ion. Thomas F. DeFrantz, Booty Control, in Dancing Many Drums: Excavations in African American Dance ed. Thomas F. DeFrantz (Madison, WI: University of Wisconsin Press, 2002), 24-25.
82 CHAPTER III LOE FULLER, GODDESS OF LIGHT AND JOSEPHINE BAKER, BLACK VENUS: NON-NARRATIVE CHOREOGRAPHY AS MERE SPECTACLE Preliminary Remarks In the first part of this c hapter, I examine how Loes failu re to obtain copyright for her Serpentine Dance lay rooted in how he r whiteness was offset by the class origins of burlesque theatre as well as legally ens hrined doctrines concer ning the primacy of narrative over simply decorative or abstrac t subject matter. In contrast, as the third chapter of this paper shows, Balanchi ne had no problems with acquiring copyright protection partly because he was already so e ffectively integrated into the upper crust elite of American ballet that his vision of the hyper-white, anorectically thin ballerina became the iconic natural look of the ba llerina in the U.S. According to one commentator, Balanchine himself stated that the skin of a ballerina should be the same color as a peeled apple.1 It is hardly surprising, in some ways, that where Loe Fuller failed, Balanchine (and his estate) succeeded, despite the equally abstract nature of his ballets. Certainly, the larger historical narrative about Fuller, Balanchine, and the refractory relationship between copyright and choreography is not reducible only to whiteness. Nevertheless, the construction of whiteness as status property in relation to the complex Reprinted with permission from Picart, Caroline Joan S. A Tango between Copyright and Critical Race Theory: Whiteness as Status Property in Balanchine s Ballets, Fullers Serpentine Dance and Grahams Modern Dances. Cardozo Journal of Law and Gender 18, No. 3 (Spring 2012): 685 -725. 1 Suzanne Gordon, Off Balance: The Real World of Ballet (New York: Pantheon, 1983), 97. For remarks regarding the hyper-whitened, skeletally thin balle rina, see Paula T. Kelso, Behind the Curtain: The Body, Control, and Ballet, Edwardsville Journal of Sociology 3, no. 2 (2003), http://www.siue.edu/sociol ogy/EJS/v32kelso.htm.
83 relationship between copyright and choreography is a factor that is in sore need of serious examination. Fullers Serpentine Dance Figure 3-1. Public domain photo of Loe Fullers Serpentine Dance. The Genesis Stories and Legal Precedent In her autobiography, Fifteen Years of a Dancers Life Fuller narrated how she was inspired to create what eventually became her si gnature and a quintessential art nouveau motif. While touring in a new play, Qua ck M.D., Fuller was instructed to create a scene in which she would appear to be hy pnotized. She described what appears to be the bricoleur s holy grail: a fortuitous conjuncti on of improvisational resourcefulness and just the right materials, at the right time. Fulle r grabbed a long skirt sent to her from
84 India by acquaintances; she pulled the wais t of the skirt up to just underneath her breasts, creating an empire-waist gown made of very light and diaphanous material.2 What happened next is one of the iconic Eure ka moments of m odern dance history. [Framed against] pale green light[,] Dr. Quack made a mysterious entrance and then began his work of s uggestion . I endeavored to make myself as light as possible, in order to give the impression of a fluttering figure obedient to the doctors orders. He raised his arms. I raised mine. Under the influence of suggestion, entrancedso, at least, it lookedwith my gaze held by his, I followed his every motion. My robe was so long that I was continually stepping upon it, and mechanically I held it up with both hands and raised my arms aloft, all the while that I continued to flit around the stage like a winged spirit. There was a sudden exclamation from the house: Its a butterfly! A butterfly! I turned on my steps, running from one end of the stage to the other, and a second explanation followed: Its an orchid! To my great astonishment sustained applause burst forth.3 Like all myths, there appear to be seve ral versions of the serpentine dance genesis story. In another vers ion, while Fuller was playing ar ound, in front of a mirror, with a voluminous white skirt she had receiv ed from an admirer, she had a vision: With dramatic lighting, she could create fantastic, evanescent, suggestive shapes onstage by agitating swaths of silk fr om underneath with a pai r of hand-held wands.4 Nevertheless, what is clear is that Fuller, in order to achieve iconic status, had to become elevated to pure whitenessan et hereal abstractiona fairy of light and illusion, an archetypal descend ant of the Greeks, devoid of corporeality. Her onstage 2 Loe Fuller, Fifteen Years of a Dancers Life (Boston: Small, Maynard & Co., 1913), 28. 3 Ibid., 31. 4 Jonas, Dancing 192.
85 persona mesmerized audiences. Whirling around on a glass platform, lit by as many as fourteen electric spotlights whose colors k ept metamorphosing, she held up voluminous fabrics billowing about her in three-dimensio nal evocations of flowers, butterflies and flames. The illusion was powerful enough to inspire and enthrall poets (Mallarm and Yeats), painters (Toulouse-Lautrec and Whis tler), and scientists (Pierre and Marie Curie).5 For example, below is one of the e cstatic reviews of one of Fullers performances: Suddenly the stage is dar kened and Loe Fuller appears in a white light which makes her radiant and a white robe surrounds her like a cloud. She floats around the stage, now revealed, now concealed by the exquisite drapery which takes forms of its own . She is Diana dancing in the moonlight with a cloud to ve il her from Acteon, She is a fairy flitting about with a cloak of thistledow n. The surprised and delighted spectators do not know what to call her performance. It is not a skirt dance, although she dances and waves a skirt. It is un ique, ethereal, delicious. As she vanishes, leaving only a flutter of her white robe on the stage, the theater resounds with thunders of applause.6 But that description is of La Loe at the pinnacle of her artistic career, when she had achieved the celebrity of being the invent or of the serpentine dance, even if she failed to establish copyright ownership to it when she sought an injunction against Minnie Renwood Bemis in 1892. Despite her la ck of formal education, Fuller displayed a sense of compositional acumen and business-savvy when she asserted that [because] she originated the danc e, and having copyri ghted [it], [the serpentine 5 Ibid. 6 Jody Sperling, Loe Fullers Serpentine Dance: A Discussion of its Origins in Skirt Dancing and a Creative Reconstruction, in Proceedings Society of Dance Histor y Scholars: Twenty Second Annual Conference comp. Juliette Willis (Birmingham, AL: Societ y of Dance History Scholars, 1999), 53.
86 dance] was her exclusive property.7 Thirty years old, plump, and hardly the conventional beauty, Fuller, knowing that her theatrical career and financial stability hinged on her ability to control ownership of the serpentine dance, attempted what was then unconventional. She tur ned to the legal apparatus for protection against copyright infringement, rather than relying on comm unity norms within the dance community.8 Yet in an opinion that has become much-quoted Judge Lacombe of the New York Circuit Court dismissed Fullers serpentine dance as unworthy of copyright protection because of its lack of narrative or dramatic content.9 In his opinion, t he district court judge held: It is essential to such a composition that it should tell some story. The plot may be simple, it may be but narrative or a representation of a single transaction, but it must repeat or mi mic some action, speech, emotion, passion, or character, real or imagi nary. When it does its ideas thus expressed become subject of copyright. An examination of the description of the complainants dance, as fil ed for copyright, shows that the end sought for and accomplished was the illustrating and devising of a series of graceful movements combined with an attractive arrangement of draperies, lights, and shadows, telling no story, portraying no character, depicting no emotion. T he mere, mechanical movements by which effects are produced on the stage are not subjects of copyright. Surely this dance described here conveyed and was devised to convey to the spectator no other idea than that a comely woman illustrating the poetry of motion in a singularly graceful fashion, and while such an idea may be pleasing, it can hardly be called dramatic. Motion denied.10 This opinion became virtually enshrined as the legal basis for denying dance choreography (or anything that was merely spectacle or decorative) copyright protection. Thus, in Glazer v. Hoffman a similar copyright infringement suit praying for 7 Dancing and Copyright, New York Times June 19, 1892. 8 See Fuller v. Bemis, 50 F. 926 (C.C.S.D.N.Y. 1892). 9 Id. at 929. 10 Id.
87 injunctive relief involving a dispute competi ng magician-performers over ownership of a magicians sleight of hand per formance, Judge Chapman cited Fuller v. Bemis as legal precedent for dismissing the case.11 The case of Fuller v. Bemis involved an infringement complaint. The act consisted of a stage dance illustrating t he poetry of motion by a series of graceful movements, co mbined with an attractive arrangement of drapery, light and shadows. While the idea may be "pleasing," said the Court, it is not such a dramatic com position as to bring it within the meaning of the copyright act. See Barnes v. Miner 122 F. 480 (C.C.S.D.N.Y. 1903); Dane v. M. & H. Co. 136 U.S.P.Q. 426 (N.Y. 1963). We therefore conclude that the plaintiff below failed to bring his act or performance within the terms of the Federal copyright statutes.12 What the judges opini on do not explicitly address is Fullers (and by extension, Martinettis) class status as a vaudeville performer and their proximity to the purely popular, merely illusory, or decorative forms of entertainment, such as belly dancing, for example. In 1892, within the context of the infringement case against Bemis, Fullers identity as a white woman, and her entitlement to white privilege, were trumped by her working class status; she was simply one among many dancing girls of vaudeville theatre. From Skirt Dancing to Art Nouveau: The Rise of Loe Fuller Despite Fullers eventual commercial su ccess at branding herself an original, skirt dancing (from which her se rpentine dance sprang) was al ready very much in vogue in the popular variety entertainment circuit, crossing the Atlantic Ocean from England to the United States. Letty Lind, one of t he popularizers of t he skirt dance, was a celebrated star of the Gaiety Theatre, a Lon don music hall known for the Gaiety Girls, a nineteenth-century British ve rsion of the Radio City Musi c Hall Rockettes; she was 11 Glazer v. Hoffman 16 So. 2d 53, 55 (Fla. 1943). 12 Id.
88 also one of the celebrities Fuller replaced in some productions, in 1889, prior to becoming La Loe.13 Along a parallel tra ck, Flitch characterized the skirt dance as a compromise between the over ly academic ballet of the ti me and the more outrageous step-kick dancing, such as the can-can (le chahut ) or its English deri vative, the ta-ra-raboom-de-ay.14 Thus, the skirt dance uneasily straddled the realms of vulgarity and the grace of flowing drapery, the value of line, the simp licity and naturalness of Greek dance.15 As it evolved, the skirt dance became increasingly associated with the burlesque, an excuse to flaunt w hat was hidden underneath the skirt.16 As a choreographer, Fullers genius lay in her appr opriation of the general aesthetic of the skirt dance, to whiten it beyond its burlesq ue, working class roots to become an iconic image of Art Nouveau. Fullers serpentine dance, at the height of her artistic career, became immortalized through Mallarmes poetry as a metaphor for a powerful, abstract expressiveness beyond langua ge and corporeality. To understand that the dancer is not a woman dancing, for the juxtaposed causes that she is not a woman, but a metaphor summarizing one of the elementary aspects of our form, sword, cup, flower, etc. and that she does not dance, suggesting, by ellipsis or lan, with a corpor eal writing that would necessitate paragraphs of prose in dialogue as well as description to express, in the rewriting: poem disengaged from all writing apparatus.17 13 Ann Cooper Albright, Traces of Light: Absence and Presence in the Work of Loe Fuller (Middletown, CT: Wesleyan University Press, 2007), 17. 14 J.E. Crawford Flitch, Modern Dancing and Dancers (London: Grant Richards, Ltd., 1912), 72. 15 Ibid. 16 Albright, Traces of Light 18. 17 Stphanie Mallarm, Oeuvres Compltes, eds. Georges Jean-Aubrey and Henri Mondor (Cambridge, MA: Schoenhof's Foreign Books, 1945), 304.
89 Ugly Duckling, Fairy, and Orientalist Temptress One fascinating feature of Fullers ascent to stardom is that she was an unlikely candidate for celebrity, and there was a large divide between her stage persona, and her image offstage. According to Rhonda K. Garelick, off-stage, Fuller clearly had no formal dance training, little natural grace, and no fashion sense.18 That is, in real life, as opposed to artistic performance, Fuller did not embody the hyperwhitened feminine (exotic) ideal that had captured the hearts and imaginations of Europes intellectuals. To say [Fuller] was unglamorous is an understatement. Her round face, wide blue eyes, and short, stout body gave her a cherubic rather than sultry look. And at thirty, Fuller wa s nearly of retirement age for a musichall dancer of that time Offstage, she dressed haphazardly in oversized clothes, kept her hair in a tight bun, and wore little round spectacles.19 Fuller herself tearfully recounts how the fissure between her stage presence as a supernatural incarnation and her reversion back to an ordinary woman, backstage, led to a little girls fearful recoil from her. To preserve the illusion, Fuller pretended to be the fairys emissary. The mother and child found their wa y to my dressing room The childs eyes opened wider and wider The nearer I came the further she shrank away. No, no. That isnt her. I dont want to see her. This one here is a fat lady, and it was a fairy I saw dancing. I said to the child: Yes, my dear, you are right. I am not Loe Fuller. The fairy has sent me to tell you how much she loved you and how sorry she is not able to take 18 Rhonda K. Garelick, Electric Salome: Loe Fullers Performance of Modernism (Princeton, NJ: Princeton University Press, 2009), 3. 19 Ibid.
90 you to her kingdom. She told me just to take you in my arms and give you a good kiss for her. At these words, the little one thre w herself into my arms .20 For as long as Fuller remained in her role as the quintessential disembodied symbol of artistic whiteness, both the public and her crit ics were forgiving of her idiosyncrasies, and tended to treat her as something in between a female version of Thomas Edison, a mad scientist lady,21 and a chaste, sexless, and proper creature, despite her open lesbian relationship with her live-in companion of twenty years, Gabrielle Bloch, a Jewish-French banking heiress who dressed only in mens suits.22 Again, this points out the difference bet ween performance space and lived experience, and the demarcation between the two, which is crucial to the maintenance of the illusion of the hyperwhitened feminine ideal. For as long as Fuller did not flagrantly try to deviate from her adored image onstage (as the embodiment of quinte ssential feminine whiteness as an abstract ideal), her celebrity was unchallenged. This is crucial because again, it illustrates how tenaciously cultur e tends to preserve its aesthetic idols, especially the cherished one of the [universal] eternal femini ne within the context of the times, implicitly raced as white. To illustrate one attempt, by Fuller, to escape her own image as the (abstract) Goddess of Light, Fullers most memorabl e artistic failure appears to have been her first staging (1895-1896) of Salom the quintessential seductress.23 Everything about 20 Fuller, Fifteen Years of a Dancers Life 141-42. 21 Ibid., 6. 22 Ibid., 4. 23 See Miss Fullers New Dance, New York Times January 24, 1896, http://query.nytimes.com/mem/archivefree/pdf?res=9907E0D6153EE333A 25757C2A9679C94679ED7CF.
91 the Salom production seemed radically at odds with the tried and tested recipe that had made Fuller a success in her serpenti ne dance numbers. Unlike her earlier productions, where all she seemed to need was blank, black space, which she then filled with color, movement and sound, here, she collaborated with George Rochegrosse, a popular salon painter, who did the costumes and set, inclusive of a perspectival view of Jerusalem on a backdrop.24 Nevertheless, one feature of her earlier performances was kept, in terms of press coveragethe New York Times heralded her use of underlightin g for dramatic effect and her expressive treatment of the well-known story.25 That is, her genius at expe rimenting with light remained unchallenged, despite the deplorable reviews she got for her performance, not as a disembodied hyperwhitened G oddess of Light but a flesh and blood historical figure Salome. Unfortunately, Fullers genius at self-pro motion and artistic projection this time backfired, largely because of her earlier succe ss. Her hyper-whitened ethereal image, as status property, became devalued by her self-unveiling as a woman of flesh and blood: slightly corpulent, and prone to a ll fleshly weakness and imperfection. Jean Lorraines acid expression of disappointment over Fullers rendition of Salome reveals how deeply invested the Parisiennes had becom e in Fullers hyper-whitened artistic illusion: One perceives too la te that the unhappy acrobat is neither mime nor dancer; heavy, ungraceful, sweating with make-up running at the end of ten minutes of little exercises, she maneuvers her veils and her mass of materials like a laundress using 24 Albright, Traces of Light 126. 25 New York Times, Miss Fullers New Dance.
92 her paddle [italics added.]26 The reference to Fullers thighs, a synechdoch of her class origins, and her exotic status as an American foreigner, were not uncommon in Paris.27 But it was not until then that Fuller s Yankee-ness became a diatribe dripping with contempt and condescension, when Lorrai ne wrote: Luminous without grace, with the gestures of an English boxer and the physi que of Mr. Oscar Wilde, this is a Salom for Yankee drunkards.28 As long as Fuller did not deviate from the image projected by her serpentine dance performances, Fuller s American-ness, was a source of exoticism; when she did, she was seve rely punished by both critics and popular audiences. Perhaps even stranger is Fullers re staging of the Salom pantomime in November, 1907 titled La tragdie de Salom The program notes combine what was then a typical blend of Greek and Orientalist themes, vis ualized through a series of studio head shots of Fuller deck ed in Egyptian-looking wigs.29 Admittedly, there was a gr eat deal of difference between the 1895 and 1907 productions, with significantly more preparation, both in terms of choreographic planning and the use of lights.30 Reputedly, in the th ird tableau, at the clim actic moment of the La danse du paon, Fuller unveiled an iridescent tail of large feathers, which she could transform into a fan. Albrig ht reports that this outfit wa s comprised of 4,500 peacock 26 Jean Lorraine, Poussires de Paris (Paris: P. Ollendorf, 1902), 143; E nglish translation from Margaret Haile Harris, Loe Fuller: Magician of Light (Richmond: Virginia Museum of Fine Arts, 1979), 20. 27 See, for example, Lynn Garafola, The Traves ty Dancer in Nineteenth-Century Ballet, in Legacies of Twentieth-Century Dance (Middletown, CT: Wesleyan Un iversity Press, 2005), 137-47. 28 Lorraine, Poussires de Paris 144, translated in Harris, Loe Fuller: Magician of Light 20. 29 Albright, Traces of Light 135. 30 Ibid., 139.
93 feathers along with other equa lly impressive statistics such as [Fullers] use of 650 lamps and 15 projectors to create 10,240 watts of candlepower.31 Fullers second Salom rendition thus attempted to bring together her genius in lighting artistry with another foray into a more expressive and less abstract artistry. Though the result was generally hailed as a fem inist triumph, what emerges is that Fullers expressive version of Salom was also an attempt to re turn to the more traditional seductive stereotypewhich was t he other of the image for which she was glorified, as a white woman who could hi de her body underneath the spectacle of cloth and the illusions of brilliant light.32 What is also clear is t hat Fuller, onstage, even as the quintessential possessor of whiteness as status property, nevertheless remained fascinated with the imaginative re workings of an Orientalist or non-white other. La Loe, having achieved the immortal status of a hyper-whitened goddess of light and abstraction, in her Salom productions unv eiled white envy of, and fascination with, constructions of non-white mortal Otherness. This is a theme that runs through this thesis that those who ar e privileged bearers of whitene ss remain fascinated with nonwhiteness, and attempt to appropriate it for their choreographic creations, with varying degrees of success, as we shall see. And this tense interplay between a white aesthetic, and its non-white other s, is important to the dev elopment of choreography and what becomes copyrightable in the history of American dance. 31 Ibid., 138. 32 Albright, Traces of Light 139.
94 La Loes Legacy Despite (and probably because of) Fullers defeat in her copyright infringement suit against Bemis, she left behind an impre ssive collection of scientific patents, especially in terms of lighting and set design. For example, three of Fullers best-known inventions were registered with the U.S. Patent Office between 1893 and 1895; these were her Garment for Dancer s, her Mechanism for the Produc tion of Light Effects (a device for underlighting), and her Theatrical St age Mechanism (a design for a mirrored room).33 Nevertheless, Fullers choreographic lega cy ironically seemed bes t protected, not by copyright, but by her effective acquisition of celebrity through t he smart marketing of her image as La Loe, the origin ator of the serpentine dance. To show how successfully Fuller had acquired ownership of a hyper-whi tened form of popular ar tistry, Albright claims Fuller had even more imitator s than Madonna on an early 1980s karaoke night.34 As Fullers reputation grew, so did t he legions of imitat ors. Yet that proliferation of faux-ser pentine dance copycats only served to bolster Fullers uniqueness as La Loe. Where copyright failed, popular cultural mechanisms of the creation of stardom, through the generation of multiple copies, rather than their prevention, succeeded in cementing Fullers legacy. That is, where whiteness as an aesthetic failed to be copyrightable (probabl y largely due to sexism and negative class associations), whiteness as an aesthetic re mained supreme culturally and within the star system, as status property Fuller herself perceptively commented in an interview: 33 Ibid., 185. 34 Ibid., 38.
95 There are 500 little misseswho can twirl a few yards of muslin and bob in and out of the focus of a limeligh t, but twirling a few yards of muslin and playing at touch with the limelightany girl who is given to kicking her toes at all can do thatdo not make a skirt dancer. To be an artist at your business calls for a lifes experience I leave nothing to chance. I drill my light men, drill them to throw t he light so, or so, and they have to do their business with the exactitude of clo ckwork . Theme, style, time, all differ in one dance from another.35 What emerges from the inte rview excerpt is not only Fullers confidence in the unassailability of her position, but also her awareness of what it takes to move from being an interchangeable popular dancing girl to being a respected artist. Instead of focusing the physical labor of dancing, s he focused on the conceptual aspects of composition; rather than focusing on the disciplining of her body, she stressed the command over her supporting crew and the tec hnical aspects of production. In so doing, Fuller rhetorically kept her dance le gacy within the realm of the abstract and noncorporealthe whitened realm of privilege. Though Fuller flirt ed with Orientalist themes in her Salom productions, as Garelick remar ks, this seems like a sanitized borrowing because Fuller seems too high-tech, too as exual, too white, and too unforeign to be compared to such exotic and scantily cl ad dancers as the eras popular Algerian troupe, the Ouled-Nayl.36 Well before Balanchine successfully copyrighted his ballets as intellectual property, Fuller had begun the process of rhet orically converting dance choreography from simply popular entertainment, which is not protectable to art, which is eminently copyrightable. Fundamental to Fullers (and eventually Balanchine s) project was the association of abstractness (non-corporeality) with the aesthetic of whiteness. As the 35 La Loe Talks of Her Art, New York Times March 1, 1896, http://query.nytimes.com/mem/archivefree/pdf?res=F40B17FF3C5C17738DDDA80894DB405B8685F0D3. 36 Garelick, Electric Salome 17.
96 first chapter of this thesis briefly shows, the history of copyright in relation to dance choreography, has been like a t angoone of repulsion and attraction. Yet one point of significant tension and equipoise in this tango has often been that invisible (though normative) fulcrum: the social and legal construction of whit eness as status property. In Fullers case, the aesthetic precedent was una ssailable in the realm of popular culture even as the attempt to set legal precedent failed. The first part of th is chapter has been aimed at mapping some of the traces of whiteness as status pr operty, both culturally and legally, in Fullers theatre of light. The second part deals with Bakers nonpossession of whiteness as status proper ty, despite her immense celebrity. Josephine Baker: Refracted Traces of a N on-White Aesthetic in American Dance37 Figure 3-2. Public domain image of Josephine Baker, circa 1938. Preliminary Remarks My task in this section of the second c hapter is more focused on studying one concrete example of a historically gr ounded non-white aesthetic possibility glimpsed 37 I am indebted to Anita Anantharam, for her generous su pport and facilitation of the development of this thesis chapter, in relation to her seminar on Advanced Feminisms.
97 through the example of Josephine Baker (1906-1975) This section, in specific, focuses on sketching, within the context of Am erican dance, an underst anding of how one distinctive type of a "non-white" aesthetic has historically played out. The larger backdrop of this project requires analyzi ng how race tracks on to what becomes regarded as the work of an "a rtist"/choreographer (thus deser ving protection as legal property), as opposed to what is "not-art" (t hat is, simply popular entertainment or purely improvisational work). I analyze mainly the 20th Century because this period is crucial in the formation of what is distin ctively American and modern in dance, and though Bakers stardom, like Full ers iconic dancing status, re sounded most strongly in France, the cultural currents that flowed from their danc ing legacies undeniably helped shape what eventually became regarded as di stinctively American and modern and what eventually became legally delineated as private proper ty The 20th Century is also the period in which dance choreography becomes an independently listed legally copyrightable category, rather than being subsumed into being a certain type of dramatic work, requiring a narrative to be legally protectable as intellectual property.38 For this section, my principal focu s is on one distinctive example of nonwhiteness as the precursor of aesthetic possibilities in Amer ican dance. Gender imbricates with race in this cultural imagi nation of a white versus a non-white dance aesthetic, much as postcolonial imaginings of a primitivist and exotic other (in the case of Baker), refracted through the prisms of stardom and image-making, form a 38 Copyright Revision Act of 1976, H.R. Rep. No. 94-14 76, at 53 (1976). The Copyright Revision Act of 1976 recognized choreography as a significant art form that merits copyright protection. Copyright Revision Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (1976).
98 complex narrative. But the aesthetic fr ame, for this period, remains staunchly heterosexual much as class divisions inher ent to those frames remain essentially stable. An additional layer of nuancing appears to be how comparatively darkly complected Baker was, and how closely she embodied the colonial fantasy of the Black Venuswhich appeared to have resulted in ambi valences that both privileged her and discriminated against her. Josephine Baker: Icon, Idol, Trickster To attempt to even write about Josephine Baker is a monumental task because Bakers life is so multi-faceted and has been reviewed through different prisms, numerous times.39 For the purposes of this sect ion of the second chapter, I focus purely on Bakers legacy as a dancer who chor eographed her own work, much of it as a soloist, much like Martha Graham and Loe Fuller, but who is remembered very differently in the history of American dance, largely because of her race. I do not discuss Bakers philanthropic effort s at adopting a Rainbow Tribe40 (similar to Angelina Jolie and Brad Pitts adoption of orphans of diffe rent races) nor her activism, leading to her being a member of the French resistance against the Nazis41 and the FBIs 39See, for example, Wendy Martin, Rememberi ng the Jungle: Josephine Baker and the Modernist Parody, in Prehistories of the Future: The Primitiv ist Project and the Culture of Modernism eds. Elazar Barkan and Ronald Bush (Palo Alto, CA: Stanford University Press, 1996), 310-25; Nancy Nenno, Femininity, the Primitive, and Modern Urban Space: Josephine Baker in Berlin, in Women in the Metropolis: Gender and Modernity in Weimar Culture ed. Katharina von Ankum (B erkeley, CA: University of California Press, 1997), 145-61; Elizabeth Coffman Uncanny Performances in Colonial Narratives: Josephine Baker in Princess Tam Tam, Paradoxa: Studies in World Literary Genres 3, no. 3-4 (1997): 379-94. 40 Josephine Baker is reported to have exclaimed: I would get children from every race, every creed, every religion. They would be every color of the rain bow. Then it hit me all at once. They would be the Rainbow Children of Josephine Baker. Stephen Papich, Remembering Josephine ( Indianapolis, IN: Bobbs-Merrill, 1976), 135. 41 Jean-Claude Baker and Chris Chase, Josephine: The Hungry Heart (New York: Cooper Square Press, 2001), 261-63.
99 developing a secret file on her because of her political activism in the U.S.;42 neither do I discuss Bakers numerous love affairs wit h men and women, both black and white,43 and her admiring association with the Pe rns, especially Evita, of Argentina.44 These extend far beyond the scope of this thesis and are not relevant to the questions I ask concerning the construction of what a non-wh ite aesthetic in dance might look like, as historically instantiated. Jean-Claude Baker, who not among the twelve official members of Josephines Rainbow Tribewas fourteen years old when he first met Baker and eventually became one of Bakers close friends and confidants;45 Jean-Claude became so devoted to La Baker that it was he who legally adopted her name. Jean-Claude begins his second mothers biography with the following words: Quel cul elle a! What an ass! Excuse the ex pression, but that is the cry that greeted Josephine as she exploded onstage in La Danse de Sauvage. (Sixty years later, her friend and sometime lover, Maurice Bataille, would say to me, Ah! ce cul it gave all of Paris a hard-on.)46 42 See generally, Mary L. Dudziak, Josephine Baker, Racial Protest and the Cold War, in Global Critical Race Feminism: An International Reader ed. Adrien Katherine Wing (New York: New York University Press, 2000), 179-91. 43 Unlike George Balanchine, for example, for whom his public choreography and his private love life were inseparable, Bakers dancing re mained theatrically insulated from her love affairs. As Lester Strong observes: In the U.S., [Bakers] lovers and husband s seem to have been exclusively black; in Europe, her lovers were white as well as black, and her hu sbands were exclusively white. More was known publicly about her male lovers than her female love rs partly because heterosexual behavior was socially acceptable, while queer behavior was not, but also because, as a sex symbol, she had much to gain professionally by the rumors-and sometimes the public acknowledgment-of her liaisons with men. As for female lovers, if Josephine had seen any career advantage to announcing to the world, no doubt she would have done so. But because she could see no upside to it, she kept quiet about her affairs with women. Lester Strong, Josephine Bakers Hungry Heart, Gay and Lesbian Review Worldwide September/October 2006, http://www.glre view.com/issues/13.5/13.5-strong.php. 44 Phyllis Rose, Jazz Cleopatra: Josephine Baker in Her Time (New York: Doubleday, 1989), 230-31. 45 Baker and Chase, Josephine: The Hungry Heart xvii. 46 Ibid., 3.
100 The succinct, explosive expression c aptures an inkling of the complex combustion of shock, adoration, fascinati on and disgust that greeted Josephine Bakers star-making performance, as an Ebony Godde ss, at the Thtre des Champs-lyses during the opening of La Rev ue Ngre on October 2, 1925.47 The dance was supposed to be a reenactment of a story well known to Paris: Pierre Lotis novel about the seductive native girl, Fatou-gaye, and the French explorer, Jean Peyral.48 But the result was a love affair between the exot icized image of Josephine Baker as a Black Venus and colonialist and scopophilic Paris. Josephine, clad only in a belt and collar of feathers and flatheeled black shoes (an odd costume for a sav age), entered strapped onto her fellow dancer, Joe Alex, who was barefoot and just as scantily clad as Ba ker. But it were as if Alex were simply part of the tableau as all ey es were on Josephine. So strong was the impression she gave of nudity that keen-eyed Janet Flanner would remember her as having appeared with only one pink feather between her legs.49 Jean-Claude Baker himself uses images that compared his adopt ive mother to animals, but he does so, sharing the same fascinated colonialist lens with whic h Paris ogled Josephines nearly nude black bodyand most especially, her derriere (a body part especially specularly racialized, as we have seen in the first chapter of this thesis). First, you feel sorry the lovely animal is dead, the shape of the body is so perfect, the color, the stillness. Then she starts to come alive, the muscular body begins to move, the music begins to pound.50 Phyllis 47 Ibid. 48 Jules-Rosette, Josephine Baker 47. 49 Rose, Jazz Cleopatra 21. 50 Baker and Chase, Josephine: The Hungry Heart 5.
101 Rose recounts Bakers entrance, as a black female body displayed for visual consumption, as immediatel y and overtly sexually charged: Baker was upside down and had her legs splayed.51 For Paul Regnier, the Danse de Sauvage was barbaric naughty a return to the customs of the dark ages. [Josephine accomplished] a silent declaration of love by a simple fo rward movement of her belly, with her arms raised above her head, and the quiver of her entire rear.52 Baker, in her own autobiographical memories of the event, us es language reminiscent of a Dionysian bacchante : Driven by dark forces I didnt recognize I improvised, crazed by the music, the overheated theater filled to the burst ing point, the scorching eye of the spotlights. Even my teeth and eyes burned with fever. Each time I leaped I seemed to touch the sky and when I regained earth it seemed to be mine alone .53 Bakers own narrative of the event theref ore seems to reinforce the stereotypical depictions of black womanhood as natura lly savage, sexualized primal body. Nevertheless, part of the comple xity in trying to analyze Bake rs rise to stardom is not only Paris projection of its colonialist and voyeuristic fantasies on her then 19-year-old black body, but also Bakers own multiple an d revisionary accounts of her story. Baker stepped into a series of historical confluences that launched her into stardom as the Ebony Venus, the Black Venus, the Jazz Empress, and like Fuller (though as the other of the other, using Michelle Wallaces expression54) other 51 Rose, Jazz Cleopatra 21. 52 Baker and Chase, Josephine: The Hungry Heart 5-6. 53 Quoted in Josephine Baker and Jo Bouillon, Josephine trans. Mariana Fitzpatric k (New York: Harper & Row, 1977), 51-52. 54 Michele Faith Wallace, The Good Lynching and The Birth of a Nation : Discourses and Aesthetics of Jim Crow, Cinema Journal 43, no. 1 (Fall 2003): 85-104.
102 luminous expressions that idealized her as the essence of Black Womanhood.55 Terri Francis succinctly details the genesis and po wer of the commercialized and publicly imagined myth of Black Womanhood, which T. Denean Sharpley-Whiting has described as the the Black Venus narrative.56 As Francis notes: [W]hen Baker debuted in Paris in 1925, she walked into a preexisting role that had been previously interpreted by Sartjee Baartman on stage as La Vnus hottentote, Laura as the black female figure in Edouard Manets 1863 painting Olympia and Baudelaires wr itings inspired by his Creole mistress, Jeanne Duvalas well as the American jazz bands and other performers that date back to the nineteenth century.57 But where Francis sees continuity of the term Black Venus in relation to Sartjee Baartman and Josephine Baker, Brenda Dixon Gottschild sees contrast: If Sara Baartman is at one end of the pr imitive spectrum, then Baker is at the opposite end. Both were objects of the white male gaze, ensnared in the primitive trope, but one [Baartman] symbolized abjection and the other [Baker] agency. Baartman represented the (overtly) desexualized [as an exhibited scientific specimen], gr oss Other: oversized, static, deenergized. Baker was marketed as a moving target of a sexual object: lithe limbs, fast-footed steps, animated fa ce, and most of all, a brilliantly active ass .58 But while Gottschild celebrates Ba kers business acumen and guile, the parameters within which Baker could exercise that agency were strictly circumscribed within the culturally an d literally archived term,59 Black Venus, as Baker herself 55 For an example of how Baker, like Fuller, electrified many of Paris artists and intellectuals, see Paul Colins Art Deco lithographs in Paul Colin, Josephine Baker and La Revue Ngre: Paul Colins Lithographs of Le Tumult Noir in Paris, 1927 (New York: Henry N. Abrams, 1998). 56 T. Denean Sharpley-Whiting, Black Venus: Sexualized Savages, Prim al Fears, and Primitive Narratives in French (Durham, N.C.: Duke University Press, 1999), 251. 57 Terri Francis, The Audacious Josephine Baker: Stardom, Cinema, Paris in Black Europe and the African Diaspora eds. Darlene Clark Hine, Trica Danielle Keaton, and Stephen Small (Champaign, IL: University of Illinoi s Press, 2009), 251. 58 Gottschild, The Black Dancing Body 157. 59 Ann Stoler noted that archives, which in this case included cultural memories of Baartmans dissected genital apron as the trace that constituted Baartmans identity as a Black Venus, embodied codes of
103 recognized in her co-authored autobiograp hy with her fourth husband, French bandleader, Jo Boullion: According to another re viewer, I was a black Venus. It was true that everyone seemed to love me, but I heard no talk of marriage. Venus, yes. But the black part didnt seem to help .60 Somewhat more analytically, Rose conjectures that Bakers frenzied improvisational stomach dance as probably derived from moves related to the belly dancethe Shake, the Shimmy, the Mess Ar oundall of which were popular with New York black jazz dancers in the 1920s.61 Roses biography is dist inct from most of the other biographies because she focuses on t he probable genealogy of many of Bakers dance moves. Benetta Jules-Rossette made similar observations: During [Bakers] early performances of the savage dance, Baker creatively combined elements from American popular dancesthe Char leston, the quadrille, strut of the cakewalk (which became Bakers chicken dance), and the bla ck bottomwith improvised acrobatics and her own inspired high kicks and contortions. .62 Baker, in the shrewd exploitation of the myth of her nat ural closeness to animals, as well as a natural dancer, liked to say that she learned how to move by watching kangaroos in the St. Louis Zoo, and from the odd, unprem editated angles of ragdolls.63 However, applying Judith Butlers obs ervations concerning the complexities recognition and systems of expectation at the very heart of what we still need to learn about colonial polities. Stoler, Colonial Archives Butler, 109. 60 Baker and Bouillon, Josephine 53. 61 Rose, Jazz Cleopatra 21. 62 Jules-Rosette, Josephine Baker 178-79. 63 Rose, Jazz Cleopatra 47.
104 of the performance of gender (and heteronormativity),64 Bakers gendered and raced autoethnographic fictionalizati ons were as much a part of the public persona she performed as an image she internalized. As Benetta Jules Rosette observes (which mimes, but does not replicate Kenneth Nunns in sights paraphrased in the first chapter): As ways of speaking about ones perce ived and desired location in the social world, identity discourses express virtual states of existence. These discourses are affirmations, rather than statements of fact, that link individuals to larger collective iden tities . In complicity with her promoters and audience s, Baker employed five per formative strategies of image and identity construction: (1 ) exoticizing race and gender; (2) reversing racial and cultural code s and meanings; (3) displaying difference through nudity, cross-dressing, song, and dance; (4) exploiting the images of difference; and (5) universalizing t he outcome to allow the performative messages to reach a larger audience. These strategies emerged gradually and with varying degrees of sophistication.65 Indeed, what Rose unearths is how Bake rs natural movements were very much rooted in American popular street dances,66 which Baker first learned in St. Louismovements perfected through years of practice, hammered in by the compunction of trying to leave behind a life of poverty and abuse. As Rose remarks: By the time she was thirteen, Baker had built up an enormous repertoire of moves. She knew them so we ll that when she started to dance professionally, it could look like s he was making it all up as she went along. But underneath the seemingly total spontaneity were known steps and dancesthe Mess Around, the Itch, Tack Annie, Truckingand years 64 Butler, Performative Acts, 525. 65 Jules-Rosette, Josephine Baker 49. 66 Foulkes similarly locates Bakers rise to stardom as part of the flowering of the Harlem Renaissance in the 1920s: In Paris, Josephine Baker thrilled audi ences at the Thtre de Champs-Elyses in 1925 and the Folies Bergers in 1926; in New York, Bill Bojangles Robinson dominated the tap scene in Broadway shows and then in movies of the 1930s, and Florence Mills made a splash with her dancing and singing ability in the 1924 all-black revue Dixie to Broadway which differed from previous shows that usually centered around male comedians. Julia L. Foulkes, Modern Bodies: Dance and American Modernism from Martha Graham to Alvin Ailey (Chapel Hill, NC: University of North Carolina Press, 2002), 23.
105 of daily practice. When she seem ed unstrung, there had been the most careful preparation. Even her eye-rolling was something she worked at.67 Roses mention of eye-rolling is import ant, as it recalls a feature of Bakers performance that has not been as iconized as much as Bakers Black Venus image. On the same night that Baker closed the show with her banana skirt number, she had appeared earlier in an androgynous clowning routine, complete with blackface: seemingly, the very antithesis of the hy perfeminized Black Venus. Baker herself quoted a review from the newspaper, Candide regarding Bakers performance at the Revue Ngre At one point a strange figure in a r agged undershirt ambles onto the stage looking like a cross between a boxi ng kangaroo and a racing driver. Josephine Baker. Woman or man? Her lips are painted black, her skin is the color of bananas, her cropped hair sticks to her head like caviar, her voice squeaks. She is in constant motion, her body writhing like a snake . She grimaces, crosses her ey es, puffs out her cheeks, wiggles disjointedly, does a split and finally crawls off the st age stiff-legged, her rump higher than her head, like a young giraffe .68 Despite the distinct contrasts betw een the clowning num ber and the banana skirt number, the analogies to exotic animals remain, much as the myth of naturalness remains intacta ll stereotypic and iconized f eatures of the dancing black female body. Yet the clowning number ve ry clearly locates Bakers rootedness in American black vaudeville traditions rather than in some universal principle of naturalness that she s pontaneously tapped through an untutored and undisciplined body (another cultural myth regar ding blackness as exotic). This is the initial version of the aest hetic Bakers dance career initially steps intoit is culturally prefabricated and had deep historical roots in the French collective 67 Rose, Jazz Cleopatra 47. 68 Quoted in Baker and Bouillon, Josephine 55.
106 psyche. The only agency she had, in that cont ext, was to exploit it by playing up to it and magnifying it, making her real life and her performed life mirrors that reflected these desires back to her adoring public. Her rise to stardom was facilitated by the ease with which she could remake herself to suit this public image and a bargain was struck: for so long as she could perform to this scopophilic gaze and maintain the illusion, even in real life, she could be a goddess, albeit a black goddess. But as in the way of all stardom, this is a moment that could not be maintained, as the adoring public is fickle and needs constant entertainment. In order to remain the sameas an exotic sexual ized object of fascinationBake r would have to constantly remake herself. And a key component to Bakers many transformations is her consistent whitening as a wild child civilized into Parisienne culture: a Black Cinderella (though minus the Prince Charming part, in terms of her real life; she did not lack love affairs, but she did not marry a Frenchman (and receive a French passport) until 1937, when she married (wit hout formally divorcing her prior American husbands, Willy Wells or Billy Baker) businessman Jean Lion, from whom she formally divorced in 1941). 69 This process of transformation took place both personally and professionally,70 as Baker moved from being a nude body dre ssed by fashion and costume designers, a dancing body scrutinized by the press and used, venerated and maligned by artists and critics, an illiterate body incapable of expr ession or communicat ion in French, to becoming an icon of fashion whom designers showered with free outfits, a star who could sell dolls made in her image and shill makeup to darken ones skin, and an idol 69 Baker and Chase, Josephine: The Hungry Heart 227. 70 Phyllis Rose notes that as Bakers career rose so did the number of in stances in which she was dogged by claims of breach of contract. See Rose, Jazz Cleopatra 82.
107 who could command how her aut obiography was written. In the prior sentences, I have chosen the rhetorical emphasis on being a body acted upon, to becoming a specular projection of the st ar system, with care. For the later Baker is less a dancing body t hat projects the illusion of nudity than a clothed body that projects an illusion of Europeanized sophistication. Baker grew increasingly whitened by the star system not only metaphorica lly but also literally. She also became increasingly preoccupied with, and better skilled at, costuming herself. As Jules-Rosette observes: From the lessons learned in her early touring days with the Dixie Steppers. Baker brought the co smetic processes of masking and blackening up, minstrel-style. Once in France, she became obsessed with both natural (lemon juice, milk, and flour) and artificial skin-lightening products. Skin, hair, costume and cosm etic changes were critical to the Baker mystique. .71 Interestingly, compared to her siblings Baker was fairly complected (which meant little to her family, given her class origins, and probably worked against her in her mothers eyes, as a constant reminder of her dalliance with a spinachan oliveskinned Spaniard, unlike her siblings, who we re fathered by a muscular, dark-skinned black man who married Josephines mother despite the earlier illegitimate pregnancy72). However, compared to the other black girl s who performed at the Revue Ngre, Baker happened to be darker in complexion. But Fr ance, unlike America, preferred darker complected girlsat least, at that point in time when Bake r and other lighter colored black performers arrived in Paris in 1925. As Baker and Chase recount: The public would, by and large, have prefer red the cast to be more bla ck, resembling Africans right 71 Jules-Rosette, Josephine Baker 145. 72 Baker and Bouillon, Josephine 5.
108 off the boat. Because of this, the very light -colored Hazel Valentine was forced to apply black body makeup, an act she and the other high-yellow girls considered a supreme degradation. .73 However, by 1927, a scant few years late r, Parisiennes began to show signs of boredom and discontent with Bakers now predictable acts until Baker extemporaneously berated t hem, and reminded them of how they had initially warmly welcomed her: Are you still French? she asks. She has won them back, they applaud her next song, partly to make up to her for the rudeness she has been show n. Josephine cant fool herself, her welcome has not been so warm. .74 In order to remain an object of fasci nation, Baker had to conform to another colonial fantasythe fantasy of the colony e ducating and civilizing its savage colonies. Part of the process of whi tening her appeal was not only in terms of her costuming and grooming, but also the narrative motifs she had to repeatedly portray on stage and on film. And one of those narra tive motifs, in addition to the Black Cinderella, was the Black Madonnathe black woman with a pure hear t who sacrificially gave up her true love, always a white man, to his true love, paradigmatically a white woman. During her brief stint into film, Baker recycled m any of her signature dance routines, now glamourized, woven into the narratives of t he Sacrificial Black Cinderella. Papitou in La Sirne des tropiques (1927), ZouZou in ZouZou (1934), and Aouina in Princesse TamTam (1935) are all examples of this Self-Sac rificing Black Cinderella: a primordially 73 Baker and Chase, Josephine: The Hungry Heart 116. 74 Ibid., 153.
109 savage woman who is saved by civilizi ng forces and displays the power of this influence by denying her savage nature as primal body.75 As Jules-Rossette recounts: [Pepito] Abatino [Bakers then manager-lover] carefully crafted the narratives to appeal to what he perceived as French tastes, making sure that the exotic heroine would return to the empire of nature, retain the ties to her primal trappings, and exhibit se lf-sacrifice amid the glamour. The connection of cinema to the representation of colonial exotica was perfect for Baker, who portrayed seductive narratives caught up in civilizing dramas with romantic twists. .76 Baker and Fuller Compared The principal irony of Bakers rise to st ardom is Europes attempt to reinvigorate its civilization and to return to its dark r oots via the commercial adoration of Baker. This process revealed nothing more than Frances/Europes own ambivalent projections, writ large in order to engage in a temporary dalliance with its erotic uncivilized Other. Combining animal se xuality with glamour, Ba ker was the stranger within who introduced Europeans to a lost strangeness within themselves, to be recuperated as a fantasmatic objet a that perfected the Eur opean subject himself by simultaneously reaffirming his superior completeness and licensing his temporary 75 Edward Said makes parallel observations concerning the complicity of those privileged by empires structures (e.g., the colonial intelligentsia, or intellectual elite) with the colonialists grand myth of a moral duty to subjugate and civilize inferior and savage cult ures. There was a commitment to [colonialists] over and above profit, a commitment in constant circ ulation and recirculation, which, on the one hand, allowed decent men and women to accept the notion that distant territories and their native peoples should be subjugated and, on the other hand, replenished metropolitan energies so that these decent people could think of the imperium as a protracted, almost metaphysical obligation to rule subordinate, inferior or less advanced people. We must not forg et that there was very li ttle domestic resistance to these empires . Edward Said, Culture and Imperialism (New York: Vintage, 1993), 10. 76 Jules-Rosette, Josephine Baker 74. For a detailed analysis of the Black Cinderella and Pygmalion narratives in Bakers films, see ibid., 72-123.
110 departures from civilized propriety into the f antasy of erotic abandon. Thus Europe was blackened, but only to reaffirm its whiteness.77 Choreographically, the roots of the authentic Africanist dance style Europe venerated were African-Americ an street dances magnified through Bakers hyperbolic and flambuoyant exaggerations. More precisely, they lay in Bakers spontaneous improvisational reinterpretations of popular American street dance steps because there are indications that she probably was temperamentally predisposed against the kind of structured repetitive fl ow formal choreography requires;78 even Balanchine, when teaching her, chose not to teach her choreography than simply provide a backdrop for her. In 1936 Balanchine shared credits with Robert Alton for dances in the Ziegfeld Follies In the Follies Balanchine provided an exotic background for Josephine Bakers dark beauty and daring co stumes without tampering with her pulsating jazz routines.79 In some ways, Bakers case parallels Fu llers: both rose from American working class origins, were principally self-taught and yet managed to capture the European imagination as artistic GoddessesFulle r as an icon of light and ethereality, 80 Baker as an idol of non-whiteness and hypersexualized embodiment. But whereas Fuller 77 Samir Dayal, Blackness as Symptom: Josephine Baker and European Identity, in Blackening Europe: The African American Presence ed. Heike Raphael-Hernandez (London and New York: Routledge, 2004), 41. 78 For an extended account of how Baker repeat edly abandoned choreography and chose improvisation on the spot, thus often driving the orchestra (and so metimes the lighting crew) to follow her lead, see Papich, Remembering Josephine 61. 79 Reynolds and McCormick, No Fixed Points 690. 80 See Anthea Kraut, White Womanhood, Property Rights and the Campaign for Choreographic Copyright: Loe Fullers Serpentine Dance , Dance Research Journal 43, no. 1 (Summer 2011): 3.
111 managed to achieve patents in her name for her inventions for her staged productions,81 there are no such documents attesting to Bakers ownership of her intellectual property. Although Fuller pr eceded Baker by several decades, there is no indication that Baker ever attempted to demarcate the ar tifacts and traces of her artistry as her personal property the way Fuller had done,82 through both Fullers successful patent applications and her unsuccessful bid to clai m ownership over the Serpentine Dance through copyright. If any intellectual pr operty protection were even conceivable for Baker, trademark protection or perhaps even publicity rights, based on the commercialization of her image as a celebrity with a distinctive mark (e.g., through a doll that resembled her and walnut oil that was sold specifically to darken Parisian skin), would probably have been her best bet. Rose re counts that at the hei ght of Josephines stardom during the Fall of 1926: There were Josephine Baker dolls, cost umes, perfumes, pomades . In Paris womens hair was slicked dow n like Josephine Bakers and to achieve this look, they could buy a product called Bakerfix . Women who, the summer before, had still been pr otecting their white skin from the vulgarity of sunburn now put walnut oil on their skin in lieu of weeks in the sun .83 But in terms of choreographic protection, like Fuller, Bakers claim to ownership of her choreographic improvisations, if she had dared to mount such a claim, would have failed, not simply because it would probably have been dismissed, like Fullers claim, as pure spectacle84 but also because, given her performances overt eroticism 81 See Albright, Traces of Light 185. 82 See Fuller v. Bemis, 50 F. 926 (S.D.N.Y. 1892). 83 Rose, Jazz Cleopatra 100-01. 84 Fuller v. Bemis, 50 F. 926, 929 (C.C.S.D.N.Y. 1892).
112 and closeness to vaudeville traditions and popular dance steps, her claim would probably also have been roundly dismissed as obscene,85 lacking originality, and not promoting the advancement of science and the useful arts , which is the principal objective of patent and copyright protection.86 Even more problematically, improvisation, because it is not movement fixed in a replicable flow, is not copy rightable. Interestingly, even today, steps derived from popular or folk dances are not protectabl e using copyright. These remain in the public domain and are not protectable. Hard ly surprisingly, as Richard Schur argues: By construing [the creative wor ks of marginalized people, such as African-Americans] as mere folk ta les, intellectual property law has allowed dominant culture to plunder traditions and forms of AfricanAmericans and other minority groups [Thus,] intellectual property laws have consistently favored those white individuals who wrote down, composed, drew, or marketed the st ory over those African-American individuals who lived or experienced it.87 Much of this is grounded in copyrights rootedness in Eurocentric conventions, which set apart the genius required for an indi vidual artist/author/ choreographers work to be protected as private intellectual proper ty from the merely popular entertainment or folkconventions that no individual can ta ke credit for. As Anthea Kraut observes, [t]he exclusionary formulation of choreogra phic work certainly seems to inscribe an elitist hierarchy between high art and low, a hierarchy that has historically been racially coded.88 It is not surprising that intellect ual property law, in general, tends to 85 Martinetti v. Maguire, 16 F. Cas. 920 (C.C.Cal 1867); Barnes v. Miner, 122 F. 480 (C.C.S.D.N.Y. 1903); Dane v. M. & H. Co., 136 U.S.P.Q. 426 (N.Y. 1963). 86 U.S. Const. art. I, § 8, cl. 8. 87 Richard L. Schur, Parodies of Ownership: Hip-Hop Ae sthetics and Intellectual Property Law (Ann Arbor, MI: University of Michigan Press, 2009), 164, 107. 88 Anthea Kraut, Stealing Steps and Signature Moves: Embodied Theories of Dance as Intellectual Property, Theatre Journal 62, no. 2 (May 2010): 178. See Lawrence Levine, Highbrow/Lowbrow: The
113 privilege whitened dance forms, such as ballet, because there are clear choreographers who author the lines and move ments using the bodies of dancers, who are as raw material shaped/posed/ created by choreographers. Copyright law creates a binary between priv ate property (usually individually owned and exploited) and the notion of a commons (usually not owned by any individual and free for use by all in the community, such as street dancing). Historically, [c]opyright law matured in the classical era of liberalism, which formally enshrined the ideal of the abs tract individual freely exer cising his or her creative capacity protected by a neutral system of natural rights, t he most important of which was the right of property.89 The converse to these clearly delineated individual rights is the amorphous public domain, which is u sually equated with t he non [-] propertied general welfare of the comm on people of a particular nati on-state or, more generously, with the larger welfare of the undifferentiated global community as a whole.90 Yet what that binary hides are precis ely the assumptions behind copyright law and its historical origins. Much as patent law requires an inventor, copyright law requires an author. Addition ally, both scientific inventio n and the creation of literary texts (as copyrights origins lie in the atte mpt to protect the produc tion of books) became regarded as testaments to the creativity and genius of a particular individual. Within Emergence of Cultural Hierarchy in America (Cambridge, MA: Harvard Univer sity Press, 1988) regarding the racial genealogy of the terms highbrow and lowbrow, which in turn sprang from the 19th Century (racially problematic) pseu do-science of phrenology. 89Thomas Streeter, Broadcast Copyright and the Bureaucratization of Property, in The Construction of Authorship: Textual Appropriation in Law and Literature eds. Martha Woodmansee and Peter Jaszi (Durham, N.C.: Duke University Press, 1994), 306. 90 Marlon B. Ross, The New Negro Displayed: Se lf-Ownership, Proprietary Sites/Sights, and the Bonds/Bounds of Race in Claiming the Stones, Naming the Bones: Cu ltural Property and the Negotiation of National and Ethnic Identity eds. Elazar Barkan and Ronald Bush (Los Angeles: Getty Research Institute, 2002), 259.
114 the context of 18th Century England (which forged the philosophical foundations of U.S. copyright law), a book rose to becoming t he intellection of a unique individual,91 rather than a product of mastering the ru les of craftsmanship. Because a book is a particular embodied or fixed expression of the authors unique mind, orig inally expressed, it is private intellectual property; thus, the right to exploit this identifiable piece of property belongs purely to this uniqu e individual. Yet as Jame s Boyle points out, such an idealized view of authorship blinds us to the importance of t he commons to the importance of the raw material from which information produc ts are to be constructed.92 Dance choreography, because it is both embodied and seemingly so ephemeral (particularly during the 1920s), already face s an uphill battle, in terms of copyright protection.93 Hardly surprisingly, given this binary between the whitened realm of genius and the non-whit ened realm of mere folk traditi ons, improvisationespecially improvisation derived from popular street dances that do not share the whitened aesthetic characteristic of more establis hed dance forms, such as ballet, tends to become discredited as not original. But as Kraut points out, t he legal binary is one difficult to sustain in the practice of designing/learning choreogr aphy, especially within the non-white traditions of ja zz and tap. Social dance st eps and simple routines, however, routinely migrate from recreational arenas to the for-p rofit theatrical stage 91 Martha Woodmansee, The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the 'Author', Eighteenth Century Studies 17, no. 4 (Summer 1984): 434, 447. 92 James Boyle, Shahmans, Software and Spleens: Law and the Construction of the Information Society (Cambridge, MA: Harvard Univ ersity Press, 1996), xiv. 93 Traylor, Choreography, Pantomime, 234, 237.
115 raising questions about when bodily movement s that occur both onstage and offmight constitute a choreographic work.94 Given this historical context, had Baker a ttempted to follow Full ers example, her claim would probably have failed. Nevertheless, traces of a non-whit e aesthetic, even if hyperbolically rendered a spectacle through colonialist and commercialist lenses, can be glimpsed through her dance legacy. As Dayal remarks: [Bakers] legacy may not be that of a profoundly subversive and parodic cultural activist. And in purely aesthetic and technical terms, her performances may not have been as precedent-setting as the performances of Katherine Dunham or Ruth St. Denis or Isadora Duncan. But no one can deny her immense perfo rmative breadth or the role she played in the blackening of the Eu ropean cultural scene. Nor can it be denied that her presence in that scene brought to the fore how intimately blackness was sutured to the co nstruction of moder n white European subjectivity.95 94 Kraut, Stealing Steps, 178. 95 Dayal, Blackness as Symptom, 50.
116 CHAPTER IV GEORGE BALANCHINE, GENIUS OF AMERICAN DANCE: WHITENESS, CHOREOGRAPHY, COPYRIGHTABILI TY IN AMERICAN DANCE Preliminary Remarks: Establishing an Aesthetic of Whiteness Figure 4-1. Public domain image of George Balanchine teaching dancers. This chapter deals with Balanchines successf ul gaining of copyright protection, which becomes a self-perpetuating system through which his estate (through the Balanchine Trust) now maintains ownership over his choreographic works. Unlike the majority of choreographic productions, Bala nchines balletic choreography became sharply delimited from the communa lly accessible public domain. George Balanchine (1904-1983), born G eorgi Melitonovitch Balanchivadze1 in St. Petersburg, Russia, came to the United St ates in 1933, in acceptance of Lincoln Reprinted with permission from Picart, Caroline Joan S. A Tango between Copyright and Critical Race Theory: Whiteness as Status Property in Balanchine s Ballets, Fullers Serpentine Dance and Grahams Modern Dances. Cardozo Journal of Law and Gender 18, No. 3 (Spring 2012): 685 -725.
117 Kersteins invitation.2 Born from a wealthy, mercantile Jewish family, Kerstein (19071996) dreamed of creating a world-class ballet company,3 and thought Balanchine was the most promising candidate to choreogr aph pieces for such a new company.4 At Balanchines behest, Kerstein also funded t he founding of the American Academy of ballet in 1934.5 After several ballet companies di rected by Kirstein and Balanchine dissolved, the New York City ballet wa s born, inaugurated with a performance on October 11, 1948.6 Under Balanchines leadership as its ballet master and principal choreographer, the company evolved to become one of the most reputable ballet companies internationally.7 Many biographies of Balanchine a bound, all of which are extremely complimentary. Robert Gottlieb compares Balanchine to other geniuses, like Shakespeare and Mozart, who composed with amazing fluency and ease.8 Gottliebs portrait of Balanchine captures the master choreographers ic onic stature in superlative, semi-divine termsone who did not need div ine inspiration, but simply worked, 1 George Balanchine Foundation, Biography: Geor ge Balanchine 1904-1983, accessed November 29, 2012, http://www.balanchine.org/balanchine/01/bio.html. 2 Taper, Balanchine: A Biography, 152. 3 Ibid., 147. 4 Ibid., 150. Prior to working wi th Kerstein, Balanchine already had an impressive resume as a choreographer and ballet master; he had worked with Serge Diaghilev and his renowned Ballets Russes, the Royal Danish Ballet in Copenhagen, and the Ballets Russes de Monte Carlo, among others. George Balanchine Foundation, Biography: George Balanchine 1904-1983. 5 Taper, Balanchine: A Biography, 154. 6 George Balanchine Foundation, Biogra phy: George Balanchine 1904-1983, 1-2. 7 Ibid. 8 Gottlieb, George Balanchine 2.
118 pragmatically impervious to all external fact ors. In Gottliebs eyes, Balanchine, the artist, towered above the contin gencies of the human condition. Always, he adjusted himself to the immedi ate situation, whatever it was: big stage or little stage; large cast or small; money or no money; ballet, musical comedy, film or television He was a leader, a modelboth a supreme artist and a brilliant exec utive. To his dancers he was everything. To other choreographers he was a figure of awe. As Twyla Tharpe has put it, Balanchine is God.9 In comparison, Bernard Taper10 describes Balanchine, despite the heavy Russian accent that persisted throughout Balanchines life, as a quintessential Americaneclectic, adaptable, shrewd, awar e of the commercial nature of his craft traits he shared with Fuller. In Tapers biographical portrait, Balanchine saw himself more as a craftsman than an artist. When [Balanchine] spoke of what he did, he compared himself to a chef, whose job it was to prepare for an exacting clientele a variety of attractive dishes that would delight and surprise their palates, or to a good carpenter, with pride in his craft.11 Despite the variance in portraiture, what is clear is Balanchines total command over his dancers. It was as if he were the puppet-master, and they, the wooden objects, into whom he breathed life, r endering them immortal vessels of eternal emotions and passions. As Taper remarks, In [Balanc hines] cosmogony, dancers were like angels: celestial messengers who communicate emoti ons but do not themselves experience the joys and griefs of which they bring tidings.12 9 Ibid., 3. 10 Taper, Balanchine: A Biography, 6. 11 Ibid. 12 Ibid., 13.
119 Balanchines creativity seemed inextricab ly bound up with his romantic life, and he is legendary for having married many of his musesat the height of his creative powers, they were always young dancers under his mentorship, always still unformed, like Galateas waiting to be sculpted into bei ng by a balletic Pygmalion. For example, Balanchine, at 41, married the 21-year-old Maria Tallchief, whose exotic dark looks made her resemble a Mayan princess; he said he was charmed by her Indian heritage, and even remarked that by marrying her, he wa s becoming truly American, reminiscent of how John Smith married Pocahontas.13 The Orientalist and patriarchal undertones, as well as Balanchines complete identificat ion with the romantic image of the American frontiersman, are clear, in that revealing remark. Equally clear is Tallchiefs acceptance of his paradigm. [Tallchief] stood in awe of Balanchine. He was the master. She had said that she was astonished when he proposed, for he had not previously showed any lovers ardor, and when he turned his eyes on her, in the rehearsal hall, she had not been awar e that these might be melting glances he was bestowing, but was rat her painfully conscious of all the flaws he must be noting. There was no thought of refusing him, just as in the rehearsal hall there wa s no thought of refusing to attempt whatever he demanded of her.14 Balanchines creative and personal pattern clearly worked itself in cycles. Like a painter or sculptor, these young musespupils represented both the reality and potentiality of his arttheir limits were the lim its of his creations. Like Michelangelo, he would then patiently awaken the ethereal fo rms he saw asleep in their young, mortal frames, still rough and uncut (as Tallchief, unlike his other dancers, still had some flesh on her when he started working with her). And they, in turn submitted, serving 13 Ibid., 213. 14 Ibid., 215.
120 him faithfully, and then when age or infirmity began to take their toll, made way for the next muse; it was unthinkable that they woul d rebel as they were grateful to have been made artistically immortal, fo r a few years, by the mast er choreographer. That one woman should be supplanted in this role by another in the course of time had begun to seem by then, as with Picassos succe ssion of wife-mistess-models, an outward manifestation of the constantly renewed y outhfulness of the artists creative powers.15 Balanchines marriage to Tallchief lasted for five years, and then was annulled. The legal grounds for annulment stated were that Tallchi ef wanted children, and Balanchine did not. The general perception seemed to be that this was simply legal pretext to end the marriage, but it is also clear that Tallchief, during her later marriage to a Chicago businessman, did have a child; equally clear is Balanchines preference that his dancers suppress the urge to procreate because [ a]ny woman can become a mother. but not every wo man can become a ballerina.16 Balanchine married and divorced four wom en: Tamara Geva, Vera Zorina, Maria Tallchief, and Tanaquil Le Clercq. All the wo men were dancers, and under the aegis of his choreographic mentorship, blossomed into stars. Al though Balanchine could never exercise as much control over Geva and Zo rina, by the time he was in his forties, Balanchine was well established enough to become a virtual artistic god. During that period, the women he married (Tallchief and Le Cle rcq) were also his artistic property, for it is upon their frail, hyper-whit ened frames, which he thoroughly commanded, that he wrote is ballets. With the complete integration of his personal and professional 15 Ibid., 212. 16 Ibid., 213.
121 lives, through an artistic justification, Balanc hine had total control over his wives; he is reported to have said If you marry a balle rina, you never have to worry about whether shes running around with somebody else or anyth ing like that. You always know exactly where she isin the studio, working.17 Unlike Fuller, Balanchine did not have to work hard at establishing a virtual trademarkthe name Balanchine had by then co me to signify both a certain classical purity of line and a hyper-whitened feminine aesthetic, as his ballets tended to glorify women with these kinds of physical attributes.18 Unlike Fuller, Balanchine did not have to work hard to distinguish his art form from the burlesque because ballets classical and regal heritage already di stinguished it from the realm fr om mere spectacle, devoid of any moral or artistic higher purpose. Nevertheless, like Fuller, Balanchine al so experimented wit h film, though his work in this medium was more in keeping with Hollywoods mainstream narrative style than Fullers experimental work. For exam ple, in Spring, 1937, Samuel Goldwyn contracted Balanchine to come to Ho llywood and choreograph numbers for The Goldwyn Follies, its score to be written by George Gershwin.19 Goldwyn hired the halfGerman, half-Norwegian blonde soloist with the Ballets Russes, Vera Zorina (Eva Brigitta Hartwig), to dance the principal role.20 Balanchine had confided in a female friend, Lucia Davidova, that what he sought in a wife was not a housewife, but a 17 Ibid., 215-16. 18 For an overall look at Balanchines oeuvre by a dance critic, see generally, Nancy Goldner, Balanchine Variations (Gainesville, FL: University Press of Florida 2008). 19 Gottlieb, George Balanchine 91. 20 Ibid., 92.
122 nymph who fills the bedroom and floats out.21 Elusiveness is a quality Balanchine romanticized: in his artistic world, the m an sought, and the woman fled. And in Zorina, his dance-muse (and eventual second wife) for his most famous cinematic foray, the Water Nymph ballet, was perfect for the pa rt, both artistically and personallyshe was cool, guarded, disdainful, and emotionally unavailable. Balanchine himself seduced Zorina with his vision of the updated Swan Lake concept: There will be marvelous, beautiful, bi g stage, round, with Greek columns on each side like Palladio; then, in the back, statue of big white horse. Poet comes and sees beautiful Undine coming out of pool covered with beautiful white flowers S he dances with poet. Then big storm starts, wind blows like mad, and we discover her on the horse. Then the wind blows all her dress away and she slides slowly, slowly from the horse and in her little tunic and bare feet she goes back to lily pool, and slowly her body disappears in the water until only her head is visible, and then she puts her cheek on the water like a pillow and she is gone like sun disappearing in ocean.22 Here is the essence of Balanchines artistic vision: a mise en scene drenched with classical referents (the column; the horse ); a hyper-whitened mu se, not of flesh and blood, but of the elements, who conspire in making her elusive; the ubiquity of whiteness, which adds to the visual ethereality of the muse. Though the eventual movie was shot in color, with Zorina swathed in gold, Balanchines idealized vision had her clothed in white. This is an aesthetic that repeatedly surfaces in Balanchines corpus. Personally, despite his artistic productivi ty, Balanchine was predominantly unhappy during his seven year marriage to Zorina (who cl aimed to have felt suffocated by being 21 Ibid., 93. 22 Ibid., 94-95.
123 placed on a pedestal),23 and she eventually left him fo r classical-record producer, Goddard Lieberson.24 Nevertheless, at the height of his ca reer, Balanchine delighted principally in transforming a natural-looki ng, uninhibited tsoupolia,25 a concocted Russian word meaning a young chicken, into a disciplined, immortal swan, swathed in the aesthetic of hyper-whitened beauty. He succeeded in that pr oject, essentially emotionally intact, with Maria Tallchief and Tanaqu il Le Clercq. He had probably grown so accustomed to being able to convince his muses to marry hi m, out of artistic duty (and ambition), that when Suzanne Farrell came along, he was in shock when she resisted and married Paul Mejia, a young male dancer in the New York City ballet, and left the company for a while, in protest against Balanchines refusal to cast Meijia in the roles [Mejia] expected and deserved.26 Suzanne Farrell (Roberta Sue Ficker) began her tutelage under Balanchine (whom she called Mr. B.) when she was 16; her breakthrough occurred because thenprima ballerina Diana Adams became pregnant, and Farrell had to learn Adams part for Movements for Piano and Orchestra, allegedly initially without music, and within days, for Balanchine and Stravinsky.27 Violette Verdy, one of Bal anchines most analytical dancers remarked that [T]he person who has come closest to surrendering to Balanchine is Suzanne Farrell. She has m anaged that kind of wonderful surrender that 23 Ibid., 103. 24 Ibid., 104. 25 Taper, Balanchine: A Biography, 185. 26 Ibid., 324. 27 Gottlieb, George Balanchine 130-31.
124 is also a glorification of self.28 And indeed, Farrell herself, after describing what she remembered as a torturous rehearsal, f illed with mistakes and lacking musicality because she was late from algebra class and did not have time to warm up before performing for Stravinski and Balanchine, remembered Bala nchines faith in her when she was ready to withdraw from the part. I trusted him not to let me be a fool, but rather a tool, an instrument in his hands. In short, I trust ed him with my life.29 What clearly emerged afte r Farrells triumph in Movements was Balanchines increasing obsession with her, as evidenc ed in the pieces he created for her. Meditation was a highly emotionally charged duet in which an older man (danced by Jacques dAmboise) conjures up a me mory of a woman he had loved.30 Two years later, Balanchines three-act ballet, Don Quixote left little doubt of his feelings for her.31 Balanchine himself, now in his 60s, danced the part of Don Quixote, an old befuddled nobleman, who is inspired, ca red for and tantalized by his beautiful servant, Dulcinea (played by Farrell), who symbolizes both purity and sensuality.32 [I]it was obvious that [Balanchine] that he was dancing not only wit h Farrell but for her. This was both a coronation (he called her an alabaster princess ) [emphasis added] and a declaration of personal worship.33 28 Ibid., 130. 29 Suzanne Farrell and Toni Bentley, Holding On to the Air: An Autobiography (Gainesville, FL: University Press of Florida, 2002), 80. 30 Gottlieb, George Balanchine 131. 31 Ibid. 32 Ibid. 33 Ibid., 131.
125 Perhaps partly because of the poignant contrast between Balanchines age and Farrells youth and delicate beauty, Balanchine produced some of his most emotionally expressive works, crystallizing his hyper-w hitened, impossibly frail feminine aesthetic (combined with an almost unnatural athleticism) as the norm for American ballets prima ballerinas. Again and again, Balanchine cast Farrell as the chosen one in the white dress;34 in 1982, when she had returned to the fo ld, and as Balanchines health grew more tenuous, he chose to dress her again in white in a recreation of Elegie a part she had originally danced in black in 1966.35 Interestingly, even years later, Farrells very rhetoric itself is steeped in Balanchines culinary metaphors of choreographic creation and white aesthetic, when she recounted Ba lanchines glee in pushing her to new physical and artistic lim its. This was all very exciting for Mr. B. and myself, and he must have felt like the chef who first disco vered that viscous egg whites could be transformed into a thick, light froth.36 Nevertheless, Balanchines legacy, casting the iconic hyper-whitened, waif-like look as the status property require d for/to become prima ballerinas, is far more than artistic, as it has shaped copyright history as well. Balanchines Will: Converting Chore ographic Works into Financial Assets Balanchines creation of a will bequeathing his ballets as property occurred because of a conversation with a lawyer, T heodore M. Sysol, whom Barbara Horgan, Balanchines personal assistant, had hired.37 Balanchine, who had always lived in the present and never thought about the future, found out that upon his death without a will, 34 Farrell and Bentley, Holding On to the Air 90. 35 Ibid., 259. 36 Ibid., 110. 37 Taper, Balanchine: A Biography, 399.
126 his sole heir would be his brother who lived in Georgia, in the Soviet Union.38 Appalled, Balanchine was determined not to let all of his possessions go, not so much to his brother, whom he had seen barely three time s, but the Communist government, whom he suspected would claim everything.39 Initially, Balanchine thought his ballets were not worth anything, but the lawyer, k nowing of the 1976 Copyright Act granting copyright protection to choreographic works, convinced Balanchine that the ballets could be bequeathed to Balanchines selected heirs.40 Galvanized into action, Balanchine drew up detailed lists of his ballets (thus partially fulfilling the fixatio n requirement for copyright pr otection), as well as his other assets.41 Balanchine signed the will on Ma y 25, 1978; except for one minor modification, incorporated through a c odicil on June 18, 1979, the will remained unchanged.42 With that step, the world of dance choreography in relation to law changed forevereventually, Balanchines ballets, inclusive of its look of hyperwhitened, 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 Balanchines principal legaties: Tanaquil Le Clercq (his fourth and last wife, felled by polio at the height of her career, and from whom he obtained a Mexic an divorce with the intent of pursuing 38 Ibid. 39 Ibid., 400. 40 Ibid. 41 Ibid. 42 Ibid.
127 Farrell);43 Karin von Aroldingen (a prima ballerina who became a close Platonic friend to the aging choreographer after Farrell had reje cted Balanchines romantic advances);44 and Barbara Horgan (Balanchines fait hful and devoted personal assistant).45 Yet it would take years before the financial details involving essentially the translation of things that belie financial calculation, su ch as balletic choreography, into raw dollar values that could be transmitted acro ss generations, would be worked out. The story of how the will produced chor eographic intellectual property, which eventually became institutiona lly owned, is a fascinating and complex one, steeped in the contingencies of choreographic production, much of which is intangible. When the will was unsealed, it specified 113 ballets, to be bequeathed to fourteen legaties, but not all of the ballets were still extant.46 Approximately 75 were still potentially available for performance, and perhaps another six c ould be resurrected, with research.47 The rest of the 425 ballets which Balanchine had pro lifically created, now either no longer resided in the muscle memories of his dancer s, or had disappeared with the passing of its dancers.48 Approximately 70% of the rights were willed to the three principal legatees.49 Horgan and von Aroldingen were designated to share foreign royalty rights to all but 21 of the ballets identified in t he will and media royalty rights to all but twenty-five, including 43 Ibid., 324. 44 Ibid., 341-42. 45 Ibid., 401. 46 Ibid., 400. 47 Ibid. 48 Ibid. 49 Ibid., 401.
128 all rights to other ballets not specified in it (such as ballets created after Balanchine had signed the will).50 Balanchine gave von Arol dingen sole rights to Serenade Liebeslieder Walzer and four other ballets in which Balanchi ne had designed principal roles for her: Stravinsky Violin Concerto Variations pour une Porte et un Soupir Vienna Walzes and Kammermusik No. 2.51 Balanchine willed another ballet, Brahms-Schoenberg Quartet to Barbara Horgan.52 But Balanchine willed most of his c horeographic intellect ual property to Tanaquil Le Clercq, perhaps partially moved by his guilt over his abandonment of her, now saddled in a wheelchair due to a polio attack, in his Quixotic pursuit of Farrell. To his fourth wife, Balanchine w illed all American performance ro yalty rights to eighty-five ballets, out of which about 60 were actually still viable.53 None of Balanchines other official wives, including his first common-law one, Alexandr a Danilova, got anything. Taper, one of Balanchines biographers, de scribes the complex distribution of choreographic assets: Other ballet bequests were Diana Adam s (A Midsummer Nights Dream), Lincoln Kerstein (Concerto Barocco and Orpheus), Edward Bigelow (The Four Temperaments and Ivesiana), Betty Cage (Symphony in C), Mrs. Andr Eglevsky (Sylvia Pas de Deux, Mi nkus Pas de Trois, and Glinka Pas de Trois), Suzanne Farrell (Medita tion, Don Quixote, and Tzigane), Patricia McBride (Tarantella, Pavane, and tude for Piano), Kay Mazzo (Duo Concertant), Rosemary Dunleavy (Le Tombeau de Couperin), Merrill Ashley (Ballo della Regina), and Jerome Robbins (Firebird and Pulcinella).54 50 Ibid. 51 Ibid. 52 Ibid. 53 Ibid. 54 Ibid.
129 Such a wide distribution of assets would eventually r equire consolidation, if Balanchines legacy were to survive, especia lly given that Balanchine left nothing for the New York City Ballet or the School of Am erican Balletthe immedi ate instruments for continuing to stage his c horeographic productions. It was only when Horgan actually had to deal with the I.R.S. that the conversion of intangible choreographic prod uctions into monetary values became an issue. How much was each choreographed piece worth? How long could one expect their value to last? Despite Horgans initiative in depos iting videotapes of m any of Balanchines ballets with the Copyright Office in Washi ngton, to maintain control over them, as Horgans first estate filing noted: there has been no recorded case in which a choreographers right to control his work, and thus, its value, has been protected by copyright.55 What resulted in response to I.R.S. scrutiny was a master ful probate statement effectively arguing for keeping the tax on estate royalties as low as possible. A team from the law firm of Proskauer, Rose, Goetz & Mendelsohn, in consultation with Horgan, crafted the document.56 Succinctly summarized, the document argued that because historically, choreographers fees have been low, and dance audiences crave novelty, inevitably, the document predicted, the Ne w York City ballet would eventually become the forum of new choreographers; without Bal anchine to refresh and renew his works, the Balanchine ballets would inevitably deprec iate, and thus, the I.R.S. could predict on no longer than five years of posthumous income for the choreographic works.57 As to 55 Ibid., 402. 56 Ibid., 402-03. 57 Ibid., 403.
130 the actual itemized royalty breakdown, the document came up with a figure: $190,691.37precise to the penny and as cl ose presumably as [Horgan and the law firm] dared come to Balanchine s [initial] dismissive Oh, theyre [the ballets] not worth anything.58 But the I.R.S. agent disagreed, and a fter the requisite haggling over some ballets that could arguably last more than th e predicted five years, all parties settled on an agreementthe official taxable value of the estate was pegged at $1,192,086; the federal tax was estimated at $300,562, and the New York St ate tax at $69,787.80.59 In hindsight, it is now clear t hat the I.R.S. agent could well have justified increasing the assessment ten-fold given the increas ed, rather than decreased, demand for performances of Balanchines works.60 But that is only part of the reason why Balanchines estate now commands a fortune. The consolidation of intellectual proper ty rights in Balanchines choreography occurred largely through the efforts of Ho rgan and von Aroldingen. The two women, following the advice of Paul H. Epstein, the attorney for Ba lanchines estate, established the Balanchine Trust, into which they deposited the ballet rights that had been bequeathed to them, and invited ot her legatees to join them.61 The goal, ostensibly, was to create order. With fourteen legatees, the prospec t of administrative chaos loomed, whereas a centralized entity could faci litate the licensing of the ballets, foster their dissemination throughout the world, and make sure that performances would be 58 Ibid. 59 Ibid. 60 Ibid. 61 Ibid., 404.
131 authentic and of satisfactory quality.62 Patricia McBride and Rosemary Dunleavy joined the trust; Tanaquil Le Clercq chose not to, but requested Horgan, as trusteeadministrator of the estate, to represent her. The Trust w ent into effect on March 30, 1987. Nevertheless, tensions between the Ba lanchine Trust and the New York City Ballet Company continued to simmer. Using various lega l theories, t he board of the New York City Ballet Company tried to gain some control over Balanchines ballets. One theory was that because Balanchine was actually an employee of the New York City Ballet Company, his chor eographic productions belonged to the company, since he had done them on company time, and used com pany resources (i.e., the dancers).63 Another theory was that the Company was at least owed co-ownership of the choreographic productions.64 Yet another was that t he company had at least a proprietary (which Horgan humorously inad vertently renamed predatory) right to perform these ballets as it desired.65 Despite Randal J. Craft, Jr.s (the New York City Ballet Companys boards counsel) seeking legal advice from two firms experienced in entertainment law and copyright law, the boards efforts to wrest some control over Balanchines ballets were ineffectual.66 After months of threats to sue, Horgan in turn threatened to hold a press conference; t he board amicably dropped its legal claims.67 62 Ibid. 63 Ibid. 64 Ibid. 65 Ibid., 404-05. 66 Ibid., 405. 67 Ibid., 406.
132 Ultimately, painstaking negotiations result ed in a mutually satisfactory licensing agreement between the company and the Balanchine Trust.68 Briefly described: The agreement recognized that the New York City Ballet was entitled to special status and consi deration. In return for a stipulated blanket fee, the five-year agreement gave the company the right to perform any or all ballets owned or represented by the tr ust. The company was also given the right to use Balanchi nes name in fund-raisinga right not allowed to other companiesand to limit and t hus prevent competing Balanchine ballet performances by visiting compani es. Equivalent agreements were worked out at the same time wit h Le Clercq and other legatees not represented by the trust.69 That licensing agreement expired in July 1992, but appears to have cemented a lasting cooperation between the company and the trust as the agreement was quickly renewed for another five years.70 To quote the boards Randal Crafts satisfaction with the agreement: Anybody who wants to see the Balanchine repertory continue as a meaningful, coherent body of wo rk has got to want City Ballet to continue to perform these ballets, and thats what we bank on. They [the Balanchine Trust and the legatees] recognize t hat as well as we do.71 Horgan v. MacMillan : Choreography and Copyright Infringement Since Balanchines chor eographic works were now le gally delimited from the public domain, heirs of his in tellectual property had to be vi gilant to ensure that their newly acquired rights would not be violated. One such protective action, which resulted in a landmark copyright infringement case, Horgan v. McMillan ,72 was initiated in 68 Ibid. 69 Ibid. 70 Ibid., 407. 71 Ibid. 72 Horgan v. MacMillan, Inc., 621 F. S upp. 1169 (S.D.N.Y. 1985) [hereinafter, Horgan I ]; Horgan v. MacMillan, Inc., 789 F.2d 157 (2d. Cir. 1986) [hereinafter Horgan II ].
133 response to MacMillans publication of a book, The Nutcracker: A Story & A Ballet authored by Ellen Switzer, which had phot ographs of Balanchines version of The Nutcracker .73 The New York City Ballet Companys official photographers took the photographs, and the Company, and its unions, as well as individual dancers, had granted permission to use the images.74 Briefly summarized, Horgan, as the executor of Balanchines estate, sought to block publi cation of the book by suing in the Federal District Court of New York on grounds of copyright infringement.75 The district court ruled that because dance is an art of mo tion, still photographs, wh ich capture static images, could not constitute copyright infr ingement, since they could not sufficiently capture motion and thus, could not provide a basis for infringement.76 Undeterred, Horgan appealed and this time, won.77 The appellate court held that the district court had applied the wrong test78 and reversed and remanded.79 According to Chief Judge Wilfred Feinberg, the correct test to apply is not w hether the original could be recreated from the allegedly infringing copy, but w hether the latter is s ubstantially similar to the former.80 The purpose of this section is to analyze both decisions,81 not only in 73 Horgan I 621 F. Supp. at 1169. 74 Id. at 1170 n.2. 75 Id. at 1170. 76 Id. 77 Horgan II 789 F.2d at 164. 78 Id. at 163. 79 Id. at 164. 80 Id. at 162. 81 For a detailed review of the facts of both cases, see Patrician Solan Gennerich, One Moment in Time: The Second Circuit Ponders Choreographic Photogr aphy as a Copyright Infringement: Horgan v. MacMillan, Inc., Brooklyn Law Review 53 (Spring 1987): 383-89.
134 terms of their formal legal content, but also in view of their rhetorical construction. Ultimately, the chapter exam ines how the notion of whit eness-as-status property, while not overtly discussed by the Appellate Court, is a factor in the outcome of that decision. Horgan I: The Reproducibility Test The first decision, stated by District Judge Owen, is short and concise. Briefly, the judge began with a definition of what chor eography is, in relation to the specific issue at stake: the flow of steps in the ballet.82 Since the still photographs in the book simply catch dancers in various attitudes at specific instants in time[,] they do not, nor do they intend to, take or use the underlying choreography.83 Thus, the judge concluded that the photographs, though numerous,84 could not be used to recreate the staged performance, much as a Beethoven symphony could not be recreated from a document containing only every tw enty-fifth chord of the symphony.85 Furthermore, the judge also concluded that Balanchines ri ght to be free from publicity was not being violated because of Balanchines status as a public figure and because the judge did not get the sense [that t he book was] publish ed for trade and advertising purposes.86 Finally, the judge delayed Horgans request for a preliminary injunction because the plaintiff had unduly delayed in seeking the claimed relief.87 That is, 82 Horgan I 621 F. Supp. at 1170. 83 Id. 84 Id. 85 Id. at 1170 n.1. 86 Id. at 1170. 87 Id.
135 although Horgan knew of MacMillans intent to publish the book as early as May, 1985, the estate did not file a claim until November of the same year. Rhetorically, Horgan Is opinion is remarkable for its paucity. The judge very briefly described the ballet almost as if it were a run-of-the-mill production: Each Christmas, the New York City Ba llet features the ballet. .88 Furthermore, the judge attributed copyright credit for the produc tion not only to Balanchine, but also Tsaichovsky (for the music), Rouben Ter-Aru tunian (for the scenery and lighting), and Karinska (for the costumes).89 Despite the nod to Balanchine s reputation as a worldrenowned choreographer,90 the judge clearly thought t hat the staging of a ballet production entailed far more t han choreography, and thus, grant ing a blanket prohibition against any representational right s of the ballet might give Ba lanchines estate too much control. Horgan II: The Substantial Similarity Test When the issue was revisited at the appellate level, the Court this time gave the facts a thorough review before stating the basis for its opinion of reversing and remanding. This time, photographers Steven Ca ras and Costas were identified, and the number of photos was specified: 60.91 In addition, this time the Court unambiguously condemned the lower courts decision as us ing the wrong legal standard, and strongly suggested that any further hearing on the preliminary inj unction be consolidated with 88 Id. at 1169. 89 Id. 90 Id. 91 Horgan II 789 F.2d at 159.
136 consideration for the claim for permanent injunctive relief.92 While the Courts instructions could be seen as simply maximi zing efficiency, the emphatic phrasing used also showed the Courts determination to bu ttress its opinion as the final word on the matter. Rhetorically, the facts as presented we re set up to showcase Balanchines dominance as an artist, and theref ore, to justify more stri ngent measures in delimiting Balanchines choreographic works apart from the public domain, which cannot be protected. The Court, citi ng Bernard Tapers biography,93 now described Balanchine as a genius, and an artist of t he same magnitude as Picasso.94 This time, no mention was made of the artists responsible for costume design and light ing. Rather, the opinion cited Tsaichovsky95 as the composer of the music used, along with two unprotected works (in the U.S. ), as prior material from which Balanchine borrowed elements to create his ballet: E.T.A. Hoffman s 19th century folk tale, The Nutcracker and the Mouse King, and Russian choreographer Ivanovs earlier balletic rendition of the story.96 The Court did acknowledge that there was some dispute on the extent of Balanchines borrowing from Hoffman and Ivanov,97 but did not dally there. Instead, the Court immediately emphasized how the Balanchine rendition of the Nutcracker 92 Id. at 158. 93 Taper, Balanchine: A Biography, 8. 94 Horgan II 789 F.2d at 158. 95 Id. 96 Id. 97 Id.
137 story, performed for the past 30 years by the New York City Ballet Company (with Balanchine as its director, ballet mast er and chief choreographer until 1983, when he passed away) had become a classic.98 In addition, the Court pointed out that both the New York City Ballet, and other companies, a ll pay royalties to Balanchines estate,99 showing the estates dominance in the ownership of Balanchines intellectual property. Finally, the Court gave a detailed account of how Balanchines choreography came to be copyrighted, and how Horgan came to be one of his legitimate heirs and the executor of the estate: In December 1981, Balanchine register ed his claim to copyright in the choreography of The Nutcracker [sic ] with the United States Copyright Office. As part of this claim, he deposited with the Copyright Office a videotape of a New York City Ballet Company dress rehearsal of the ballet. Under Balanchines will, which is presently in administration, all media, performance and other rights in The Nutcracker [sic] were left to certain legatees, including Ms. Horgan, who was his personal assistant at the New York City Ballet for 20 years.100 Rhetorically, the facts were already st acked up to show that Balanchines choreography had already passed from t he anonymous, non-published, unfixed realm of the public domain into the recognizabl e, published and delimit able realm of the copyrighted. The Courts description of the history of how Balanchines choreographic materials became copyrighted emphasized the requirements for copyright protection: publication (through a 30-year history of well-known public performances by an internationally renowned ballet company, cl osely associated with Balanchine) and fixation (through the videotape, which was depos ited with the Copyright Office). Finally, 98 Id. 99 Id. 100 Id.
138 the reference to Balanchines will, wh ich had been unsealed and was being enforced by its appointed executor, pers onally handpicked by Balanchi ne himself, sealed the nowobvious argument that Balanchines c horeography legitimately deserved strong protection from infringement. Balanchine was no longer simply a world renowned choreographer, but more importa ntly, a genius comparable to Picasso. What better rhetorical proof was there that Balanchi nes choreography, along its hyper-whitened feminine aesthetic, had now crossed into t he whitened realm of st atus property? Then the Court turned to outlin ing the facts of particular relevance to the issues on appeal. The photos germane to the di spute were the 60 photographs taken by Caras and Costas, which were interspersed with Switzers descrip tion of the story, some parts of which were not visually portr ayed. The Court drew attention to Caras and Costas status as official photographers, which in this context, using Horgans description, simply meant that Balanchine au thorized them to take photographs of the Company, some of which might be purchased by the Company for publicity and related purposes.101 Similarly, Switzer, a free-lance j ournalist, had access to the performers (for her interviews in the book) only bec ause an unnamed press liaison to the Company had granted Switzer permission and backst age entry to interview the dancers.102 Finally, the Court also pointed out that Horgan and her counsel, after reading the galleys of the book, gave notice three times (April 3, April 15 and October 8, 1985) to MacMillan. The first letter asked MacMill an to withhold publicat ion until appropriate licenses were in place.103 The second letter advised MacMillan that Balanchines 101 Id. at 159. 102 Id. 103 Id.
139 estate was not willing to grant the licenses.104 The third letter clearly indicated that publication of the book, in the estates eyes, would constitute a willful violation of the rights of the Estate.105 Thus, the facts, as re counted by the Court, already delegitimated Switzers text and Caras and Costas photographs as original work that deserved protection because the only reason t hey were able to produce these materials was because they were given special dispensation by Balanchines estate and its agentsand such permission was not mean t to be abused. Furthermore, that Balanchines estate had given repeat ed notice strengthened t he argument that publication of the book was a fl agrant and willful violation of the copyright owned by the estate. From here on, the Courts re maining rhetorical task was simply to justify its decision for reversing and remanding. This time, the Court did not rely upon an arbitrary intuition about c horeography entailing a flow of movement but instead cited, in depth, Compendium II s (1984) definition: Choreography is the composition and arrangement of dance movements and patterns, and is usually intended to be accompanied by music. Dance is static [emphasis added] and kinetic succe ssions of bodily movement in certain rhythmic and spatial relati onships. Choreographic works need not tell a story in order to be protected by copyright.106 The Courts noting of sta tic and kinetic successions of bodily movement opened the door for photographs infringing upon Bal anchines copyright because photographs freeze movement into still poses, which coul d, under Compendium IIs definition, be a protected element of chor eography. Additionally, for supplementary guidance, the 104 Id. 105 Id. 106 Id. at 161.
140 Court cited Section 450.01 of Compendium II under Characteristics of choreographic works: Choreography repres ents a related series of dance movements and patterns organized into coherent whole.107 This characterization added justification for protecting the whole ballet, rather than segm enting it into parts (e.g., choreography versus music, costumes, lighting, etc.). Furthermore, the Court distinguished between either social dance steps, folk dance steps or individual ballet steps, which are in the public domain and can be used as raw material by anyone, and copyrightable/copyrighted material, such as Balanchines choreography (and its hyperwhitened feminine aesthetic), which were set apart from the public domain. Then came the crux of the matter. T he estate claimed that the book was an unauthorized copy of Balanchines work becaus e it portray[ed] the essence of the Balanchine Nutcracker .108 Alternatively, the estate al so claimed that the book was derivative, meaning it was bas ed on preexisting copyrighted work.109 In contrast, the appellee, citing the court below, focused on Balanchines reliance on prior-existing works already in the public domain and the phot os use of non-choreographic aspects of the production, such as costuming and lighting.110 Furthermore, the appellees echoed the lower courts opinion that because t he central characteristic of choreography is movement, and a photograph only captures a fraction of an instant, even the combined effect of 60 color photographs does not reproduce the choreography itself, 107 Id. 108 Id. 109 Id. 110 Id. at 162.
141 nor does it provide sufficient details of movement to enabl e a choreographic work to be reproduced from the photographs.111 To resolve the dispute, the Court rejected the district co urts test for infringement and substituted its own: not whether the original work may be reproduced from the copy but whether the alleged copy is substantially similar to the original.112 That test, explained by Judge Learned Hand, was w hether the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.113 Furthermore, though the Court acknowledged that when the allegedly infringing material is in a different medium, recreat ion of the original from the infringing material is unlikely if not impossible,114 the Court also firmly stated that that is not an autom atic, affirmative defense.115 Even more strongly, the Court cautioned that even a minimal amount of copyi ng, if it were qualitatively significant,116 could be sufficient to constitute copyright in fringement, even if the original could not be reproduced from the copies. As analogies, the Court cited a hypothetical and two cases. The first was the Gone with the Wi nd hypothetical, phrased as a rhetorical questionthat it would surely not be a def ense against infringement that one could not reproduce the book from the movie.117 Second, as instructive but not binding precedent, the Court cited two cases: the employment of short clips used in a film memorial to 111 Id. 112 Id. 113 Id. citing Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960). 114 Horgan II 789 F.2d at 162. 115 Id. 116 Id. 117 Id.
142 Charlie Chaplin was held to infringe full length films,118 and the use of a mere four notes from a musical composition composed of 100 measures was sufficient for copyright infringement of the original.119 More crucially, the Court argued against a limited or literal way of viewing photographs as depicting merely a fraction of an instant. Rather, it argued for a more expansive interpretation: A snapshot of a single moment in a dance sequence may communicate a great deal a gesture, the compos ition of the dancers bodies or the placement of the dancers on the stage. A phot ograph may also convey to the viewers imagination the mom ents before and after the split second recorded The single instant thus communicates far mo re than a single chord of a Beethoven symphonyan anal ogy suggested by the district Judge.120 Using that standard, the Court found numerous examples of copyright infringement of Balanchines choreography in Switzers book. The Court identified photographs 30, 38, 42, 66-67, 68, 69, 74, 75, 78, 80, 81121 as examples of photographs that fr[oze the] choreographic moment, thus capturing a gesture, revealing the composition of dancers bodies, and the dancers placement onstage.122 Additionally, the Court took the time to explain, in some detail, why a twopage photograph of the Sugar Canes, one of t he troupes to perform in Balanchines Nutcracker, was a clear infringement. 118 Id. citing Roy Export Co. Establishment v. Columb ia Broadcasting System, Inc., 503 F. Supp. 1137, 1145 (S.D.N.Y. 1980), affd 672 F.2d 1095 (2d Cir. 1982). 119 Id. at 162-63, citing Elsmere Music, Inc. v. National Broadcasting Co., 482 F. Supp. 741, 744 (S.D.N.Y. 1980), affd 623 F.2d 252 (2d Cir. 1980). 120 Id. at 163. 121 Id. 122 Id.
143 One member of the ensemble is jump ing through a hoop, which is held extended above the dancer. The dancers legs are thrust forward, parallel to the stage and several feet off t he ground. The viewer understands instinctively, based simply on the laws of gravity, that the Sugar Canes jumped up from the floor only a mom ent earlier, and came down shortly after the photographed mom ent. An ordinary obser ver, who had only recently seen a performance of The Nutcracker, could probably perceive even more from this photograph .123 Interestingly, the ordinary observer, for both the ballet and the Switzer book, would have been a child, not an adult, as the target market for both were children. Nevertheless, the Court did acknowledge that a number of issues needed to be worked out: the validity of Balanchines copyri ght (as the appellees questioned the scope of the applicability of Balanchines copyri ght, which failed to mention preexisting material124 from Hoffman, for example); the amount of original material in Balanchines choreography (as opposed to Ivanovs) in bo th the New York City Ballet Companys performance of the ba llet and the photographs;125 and the confusion spawned by the overlapping propriety rights of Balanchines estate, t he New York City Ballet Company, and the official photographers, in cluding defendants Caras and Costas.126 Nevertheless, the Court ruled in favor of Ba lanchines estate on the remaining issue (the injunction), and did not consider the estates delay in filing for an injunction as not rising to the level of laches and therefore a bar to a permanent injunction. Horgan II thus completely reversed Horgan I. Where Horgan I effectively left Balanchines estate with no control ov er photographic reproductions of the 123 Id. 124 Id. at 163 n.8. 125 Id. at 163. 126 Id.
144 choreography, Horgan II left absolute control of photogr aphic materials of Balanchines ballets in the hands of Balanchines estate. I ndeed, it is difficult to think of an exception that lies beyond Horgan IIs characterization of the subs tantial similarity test as applied to Caras and Costas photograph s of the New York City Ballets presentation of Balanchines Nutcracker choreography. Balanchines ae sthetic of hyperfeminized whiteness in ballet thus becomes enshri ned, both culturally and legally, as the paradigmatic case of the unimpeachably copyri ghtable. It is a (foreign) white males vision of choreographic production (wit h its gendered and raced economy of performative duties) that becomes enshrined as the standard for copy rightability, or as the bearer of whiteness as status property in Am erican dance choreography. Fuller and Balanchine and the Evoluti on of Whiteness as Status Property in Choreography Fullers and Balanchines portraits as pioneers of American dance could not be more contrastively drawn. Fuller initially st ruggled to create an identity for herself as the creator of the skirt dance and to gain adequat e financial compensation. Fuller also had to fill a variety of roles, in addition to choreographer and dancer; she created her own costumes, designed and pat ented the lights, planned the staging of the movements onstage, did her own self-promotions. Fuller a ttempted to gain copyright protection, only to have her work dismissed as mere specta cle, devoid of any moral purpose that could further science or the arts. In contrast, Balanchine, with his cla ssical Russian training, had the financial support of Kerstein, and as such, skipped over many of the steps Fuller struggled through, to gain reputability. From the start of his move to America in 1933, Balanchine had a school of pliant young dancers whose flesh and spirits he could shape to his
145 choreographic designs without fear of them becoming hi s competitors, and a support staff who could take care of the other production-related tasks, such as lighting, costuming and publicity. In addition, ballet, unlike skirt dancing, h ad a long-established tradition of being a dance form of the higher cl asses, regarded as a classic art form. Ballet, unlike skirt dancing, also had a longestablished tradition of having a dominant, tyrannical male ballet-master, which furt her cemented Balanchines authoritative position. This is not to say Balanchine did not undergo difficulty; his life appears to have been composed of successive seasons of feast and famine, with ballet companies ephemerally rising and expiring around him. Balanchine, unlike Fuller, lived for the present and was not bothered by the thought of his ballets passing into obscurity, much like beautiful butterflies that were spectacula r at the height of thei r glory, but swiftly passed away. In contrast, Fullers every ac t seemed focused on creating a memorial for herself that would withstand t he test of time. Her savviness in negotiating legal hurdles (even submitting a detailed description of t he skirt dance in her failed infringement claim), ironically, did nothing to ensure her success at acquiring copyright protection. Given these differences in personality, it is ironic that it is Balanchine who succeeded where Fuller failed. Nevertheless, both Fuller and Balanchine were stars, and part of the creation of t heir celebrity was their int egration of a hyper-whitened aesthetic into their choreography. Fuller accomplished this through making her lessthan-perfect body invisible, through t he use of extended wooden wands, yards and yards of white silk, and the magic of light s. Balanchine accomplished the same task through hyper-disciplining his dancers bodies, whom he carefully chose, to become the
146 vessels of his artistic ideal: the embodiment s of the all too Rom antic vision of the feminine-as-eternally-fleeing; young women ch iseled down to such thinness so as to become virtually evanescent; marble princesse s, with skins like peeled apples, devoid of aging and infirmity. Wh ile Fuller produced no heir and until recently, was not recognized as a pioneer of modern dance, Bal anchines legacy, both culturally and legally, is now very well entrenched. Thus Balanchines estate not only commands the royalties to choreographic productions lic ensed to 150 ballet companies worldwide,127 but now also possesses the trademarks of Ba lanchines style and technique and even his name.128 To be able to perform a ballet, a company representative has to have a consultation with the particular ballets legat ee concerning consent, terms, who should be recommended to do the staging, and any other special conditions; if the recommended stager does not think the company can do the work justice, the company will not acquire the license to perform it.129 Finally, so absolute is the estates control over Balanchines choreography and even name that it now can also compel companies who perform Balanchines ballets to incl ude a trademark and licensing notice in their programs.130 In retrospect, the history of American modern dance, using Fuller and Balanchine as virtual bookends, in relation to the posse ssion of whiteness as (artistic and legal) status property resembles Br uno Latours characterization of the history of science as composed, rhetorically, of two phases: hot science/science in the making, when the 127 Taper, Balanchine: A Biography, 409. 128 Ibid., 410. 129 Ibid. 130 Ibid.
147 boundaries separating real science and emer gent sciences are not yet fixed, and science in its cold phase/ready-made sci ence, when a science has now achieved respectability and authority.131 Similarly, in Fullers case, the boundaries separating art from the burle sque were porous, whereas in Balanchines case, at least by Horgan II balletic choreographic productions (not nec essarily tied to na rrative) were so clearly art that they c ould be passed on as heritable a ssets, and deserved broad legal protection as copyrighted materials. Cruc ial to the metamorphic process of making choreography copyrightable was the formation of the reputabilit y of a recognizable aesthetic of whiteness, as im bricated with other factors, such as gender, class, race, nationality, and physi cal embodiment. Another framework that could be of us e, as an analogy, would be Kuhns characterization of a paradigm (roughly trans lated, a world view, requiring a problemsolving method and a community of practitioners)132 and the shift across paradigms, such as the shift from the Cr eationist-Fixism to Darwinian Evolutionism. During Fullers time, the dominant legal paradigm was that choreography of abstract works was mere spectacle, devoid of anything that would furt her artistic or scientific advancements; by the time Balanchine was ready to pass on hi s balletic choreographic works as assets which his heirs could profit from, a different legal paradigm was in pl ace. By the time Balanchine applied for copyright protection, his choreography, especially as steeped in traditions of classical ballet, already embod ied the hyper-whitened aesthetic that began with Fullers abstract expres sionism, that it had alread y passed scrutiny as status 131 Bruno Latour, Science in Action 4, 13. 132 Thomas Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1970), viii.
148 property in cultural terms. Thus, the 1976 Copyright Act simply gave formal legal recognition to what was already an establis hed cultural-artistic paradigm, steeped in a hyper-whitened aesthetic. The pi cture that results from this analysis, in broad strokes, is a proverbial tango between copyright and choreographywit h a moment of repulsion instantiated in Fullers legal rejection, and a moment of attraction instantiated in Balanchines legal triumph. That tango between copyright and choreography continues in other areas.
149 CHAPTER V MARTHA GRAHAM, PICASSO OF AM ERICAN DANCE, AND KATHERINE DUNHAM, MATRIARCH OF BLACK DANC E: EXOTICISM AND NON-WHITENESS IN AMERICAN DANCE Grahams Artistic Immortality Preliminary Remarks The significance of the prior chapter lie s in that it is with Balanchine that choreography first gained copyright protection; it is thus important to understand why Balanchine succeeded where Fuller failed, even if they both partook of an aesthetic of whiteness (abstraction). Furthermo re, as I will show in the fi rst part of this chapter, although Graham, following Balanc hine, was able to gain copyright protection of her choreographic works, her estate unlike Balanchines was not able to maintain control of her creations. The idea that ownership of choreographic works could be wrested away from the chosen heir of t he choreographer was alarming to many in the dance community, and has resulted in the dance and legal communities becoming more aware of contractual provisions and their effects.1 This chapter builds from the prior c hapter, which analyz ed how whiteness as status property functioned in Balanchines rise to stardom as a genius, enshrining his hyper-whitened feminine aesthetic as the iconi c look of American modern ballet. That hyperwhitened aesthetic and Balanchines au thority as a white male ballet master, helped delimit his choreography as copyrightabl e, and therefore, worthy of protection from infringement. The firs t part of this chapter discusses how Martha Grahams Reprinted with permission from Picart, Caroline Joan S. A Tango between Copyright and Critical Race Theory: Whiteness as Status Property in Balanchine s Ballets, Fullers Serpentine Dance and Grahams Modern Dances. Cardozo Journal of Law and Gender 18, No. 3 (Spring 2012): 685 -725. 1 Diane Solway, When the Choreographer Is Out of the Picture, New York Times January 7, 2007, http://www.nytimes.com/2007/01/07/arts/ dance/07solw.html?ref=ronprotas.
150 reputation as an exotic white woman hel ped cement her power as a choreographer. However, whiteness as status property functioned refractorily in her case, and unlike Balanchines heirs, Grahams heir was unable to maintain unchallenged control over Grahams choreographic creations. Grahams Exotic Whiteness Figure 5-1. Public domain image of Martha Graham and Bertram Ross. That Martha Graham rivaled Balanchine in reputational c apital is not debatable. Her influence on modern dance has been com pared to Picassos on modern painting, Stravinskys on modern music, and Frank Lloyd Wrights on architecture.2 The list of her students reads like a Whos Who of modern dance; to name a few, Alvin Ailey, Twyla 2 See Martha Graham: About the Dancer, PBS: American Masters, September 16, 2005, http://www.pbs.org/wnet/americanmasters/epi sodes/martha-graham/about-the-dancer/497/.
151 Tharp, Paul Taylor, Merce Cunningham.3 She collaborated with equally successful contemporary artists, such as composer Aaron Copl and, sculptor Isamu Noguchi4 and ballet choreographer, George Balanchine.5 Like Balanchine, at the height of her pow ers, Graham had incredible control over her dancers. Actress Bette Davis, one of her former students, never forgot the incredible presence of her teacher: I wors hipped her. She was all tensionlightning. Her burning dedication gave her spare body the power of ten men .6 Jane Dudley, another of her dancers, spoke of Graham as if she were an un tiring army drill sergeant: Martha was absolutely merciless. I never wa lked [expended less than what is required for full performance] anything.7 Yet Graham was also known for using shock tactics to achieve the effects she wanted, often using sexual sentences, sometimes charged with cruelty, to make a point. With one girl who was not doing one of the floor exercises correctly, she spread the girls legs and said, Som e day a man will do this to you and youll remember it. The girl was shattered and stayed away from class for some time. To another girl, who nev er seemed able to do as well onstage as she did in the studio, Graham sa id, I wont have virgins in my Company. I dont care if you have to stand on a street corner to get a man .8 All these details are important to sho wing that although Graham was a woman, she essentially occupied a very similar reve red (empowered) space, in relation to the 3 Ibid. 4 Ibid. 5 Taper, Balanchine: A Biography, 15. 6 Don McDonagh, Martha Graham 2nd ed. (New York: Warner Books, 1978), 53. 7 Ibid., 75. 8 Ibid., 225.
152 dancers she trained, as Balanchine generally did, in relation to his students. Graham was in effect masculinized (especially w hen her company was composed purely of women) relative to her dance troupe, and there was no essential difference, in terms of the authorial space she occupi ed (or the status she posse ssed as a white woman who created her own works), between her self and her dancers, as Balanchine, in relation to his. Whether or not one agreed with Graham s teaching methods, what was clear was that Graham disciplined and ri gorously trained her dancers enough to become soloists, yet she ironically kept them in tightl y bound formations that ignored an individual dancers special qualities.9 In her ideal world, they we re the tableau of highly ordered bodies that supported, surrounded, and showcased her genius and stardom. Martha Graham was born in A llegheny, Pennsylvania in 1894;10 she was the eldest daughter of George Gr eenfield Graham, a family doctor who had worked in a mental hospital, and taught his daught er that movement never lies.11 Graham was to take her fathers insight regarding primeval emotions manifesting themselves through involuntary movement into an entirely new way of dancingone radically opposed to the conventions of classica l ballet. Unlike Balanchines ballerinas who soared and defied gravity, Grahams dancers embraced the pull of gravity.12 Ballerinas wore tight toe-shoes to keep them elevated, enhancin g the illusion of their ethereality and weightlessness. In contrast, Grahams dancers danced barefoot and did not conceal their corporeality or the effort of move ment; falling was simply one direction of 9 Ibid., 67. 10 Ibid., 8. 11 Russell Freedman, Martha Graham: A Dancers Life (New York: Clarion Books, 1998), 15. 12 Ibid., 56.
153 movement for them.13 Like her father, Graham was fa scinated by the inner emotional landscape, which she sought to portray th rough angular, explicitly sexual and even violently disjunctive movements. At the heart of her choreogr aphy were the principles of contraction and releasean enhanced st udy of the mechanics of breathing.14 Yet to understand why Graham became a legend, and how whiteness as status property functioned refractorily in the establishment of her legacy, one has to return to her roots as a dancer. Graham auditioned at the Denishawn School of Dance when she was 22impossibly old for an aspiring da ncer, especially one untrained in ballet. Outwardly, she did not seem destined for gr eatness: she was short, serious-looking, and slightly plump.15 Her idol, Ruth St. Denis, one of the founders of Denishawn, agreed to her enrollment purely for pecuniary purposes, and relegated her tutelage to her husband, Ted Shawn.16 Fortunately, Shawn noticed and appreciat ed what St. Denis did not: not only Grahams fierce determination to succeed, but also her adeptness at mastering difficult choreographic sequences.17 Shawn also helped cement Grahams reputation as an exotic white womanthat is, a white woman who could effectively masquerade as an exotic woman while remaining recognizabl y white. Shawn thou ght of Graham as a beautiful but untamed little black panther;18 thus, Shawn cast Graham as Xochitl, an 13 Ibid., 58. 14 Ibid., 56-57. 15 Ibid., 27. 16 Ibid., 27-28. 17 Ibid., 30. 18 McDonagh, Martha Graham 26.
154 Aztec maiden whom a drunken emperor (Shawn) tried to rape.19 Grahams ferocious and impassioned performance was a success (oft en leading to bruised and bleeding lips, for her leading men);20 a star was born, and Grahams appetite for violently physical performances became part of her artistic identity. In 1923, eight years after she had joined Denishawn, Graham was ready to leave the company, partly because St. Denis, the woman she idolized, had begun to view Graham as a competitor and had begun to, for a while, appropriate Grahams successful numbers for herselfeven the part of Xochitl.21 In 1923, Graham accepted a job with the Greenwich Village Follies, and began to design and choreograph her own dances; she became a Broadway star overnight and earned $350 a week, which was a high salary at that time.22 Nevertheless, Graham was unsati sfied by the constraints of the entertainers route, and she longed for gr eater independence; there is a great deal of documentary evidence that Graham sought to insulate herself from any popular cultural influences and to differentiate herse lf as an artist ra ther than a showgirl23a stance she was infamous for dur ing her employment with the Follies and which continued all throughout her career. Graham eventually a ccepted a position with the Eastman School of Music, which left her fr ee to begin her experimentations in dance 19 Ibid., 26. 20 Ibid., 26, 28. 21 Agnes De Mille, Martha: The Life and Work of Martha Graham (New York: Random House, 1991), 67. 22 Freedman, Martha Graham 38. 23 See, for example, Martha Graham, Blood Memory: An Autobiography (New York: Doubleday, 1991), 93 (where Graham admitted that the other female enter tainers called her Princes s because she was more than a little arrogant and she kept in sisting that what she did was ar t, not show business); Foulkes, Modern Bodies 41 (where a caricature of Martha Graham, as opposed Sally Rand, a popular entertainer, underlines the differences that separated the realm of serious art versus simply entertainment Graham fiercely advocated).
155 choreography with selected students.24 Beginning with her Ea stman students, Graham eventually founded the now famous Martha Gr aham School for Contemporary Dance in New York.25 Although Graham was eventually to rebel against her Denishawn roots, it is clear that many of her later chor eographic creations still drew from Denishawns fascination with the exotic, and its colonial imagination of the mysterious cultur es of the Near and Far East, ancient India and the Americas.26 Nevertheless, this obsession with the East had nothing to do with what those ancient cultures were actually like, and was a Romanticized mirage27one [s]umptuously costum ed, bedecked and bejeweled, [drawing on] the lore of the ancients wrap[ped] in clouds of sexy secrets.28 Particularly as embodied in its central ic on, Ruth St. Denis, the Denishawn style appropriated the mysterious but highly sexualized allure of the exotic and combined it with a hyper-whitened aesthetic similar to Balanchines ideal. However, because Graham did not have St. Denis Nor thern European peaches -and-cream blonde looks,29 and her high cheekbones made her look, to Shawn, exotic,30 Graham was the 24 Freedman, Martha Graham 41. 25 Ibid., 42. 26 McDonagh, Martha Graham 37. 27 Graham repeatedly resisted attributing any direct influences on her art. For example, because many critics noted that Primitive Myster ies (1931) visually resembled the work of Mexican muralists, which were then the rave in the art world, Graham allowed hers elf to admit, with her characteristic flair that she had been influenced by the painter Jos Clement e Orozco but that she had not used him as a model to be copied or even approximated. Ibid., 85. 28 Ibid., 37. 29 Ibid., 26. 30 Ibid.
156 perfect vessel for the more primal, emot ionally ferocious, physically demanding roles Shawn cast her in. It is that hybrid identity of the exotic and white that Graham carried into her future roles as both performer and choreogr apher. Indeed, Grahams later creations drew from her interpretations of Native-American, Egyp tian, Cambodian, Indian, and Japanese dances.31 And when she chose to cast herself in non-exotic roles, it was clear that she composed with her self at the center of t he stage; as she began to struggle with aging, she reluctantly decided she could no longer hold center stage without the support of a surroundi ng cast of dancers, as in The Triumph of St. Joan staged in 1951.32 Like Balanchine, Graham fought fero ciously against her mortality; it took a rebellion from her own dancers, dem anding the right to perform without her, to finally begin to accept that her performing days were over.33 In 1969, at the age of 75, Graham performed for the last time and reluctantly announced her retirement.34 After that, her dances no longer had a strong c entral figure; Graham found it unbearable to place in the body of another dancer the same movements and roles she once would have brought to life herself.35 Yet she knew that to attain the legacy she desired (and to ensure the survival of her work), s he would need to release her choreography to younger dancers. 31 Deborah Jowitt, Monumental Martha, in What is Dance? eds. Roger Copeland and Marshall Cohen (New York: Oxford Univer sity Press, 1983), 456-58. 32 Freedman, Martha Graham 120. 33 Ibid., 135. 34 Ibid. 35 Ibid., 141.
157 The toll of giving up dancing, combi ned with her abandonment by her former husband and dance partner, Erick Hawkins,36 along with years of alcoholism, made Graham sink into severe depression.37 It was during this period of recovery from illness and depression (involving a series of relapses) that Ron Protas, a former Columbia University law student, with no theatrical or dance background, became indispensable to Martha.38 From the day of the oxygen salvati on, Protas made it his business to become indispensable to Martha, life-gi ving, life-sustaining to be everything to herher nurse, her dr esser, her housekeeper He became her business manager, her advis er, her counselor, her advocate Protas was all.39 In 1972, three years after her last public performance, Graham announced that she was re-emerging as director of her company.40 Sadly, in her new reincarnation, Graham trusted no one but Prot as, who proceeded further to isolate her from anyone who might have any influence on her.41 Because of Protas dedication to her, Graham decided to name him as her heir. She bequeat hed to Protas the rights and interests to her dance works, musical scores, scener y sets, [Grahams] personal papers and the use of [Grahams] name.42 And this is where a three-year legal battle over ownership of Grahams works began. But such a battle was not possible without Grahams 36 Ibid., 120. 37 Ibid., 137. 38 De Mille, Martha 382. 39 Ibid., 382-83. 40 Freedman, Martha Graham 137. 41 Ibid., 140-41. 42 Martha Graham Sch. & Dance Found., Inc. v. Ma rtha Graham Ctr. of Contemporary Dance, Inc., 380 F.3d 624, 628 (2d Cir. 2004) [hereinafter Graham III ].
158 choreographic works being converted and fix ed into valuable intellectual property, buttressed by her star power as a white exotic woman. Martha Graham School and Dance Foundation, Inc. v. Martha Graham Center of Contemporary Dance, Inc .: The Work for Hire Doctrine Grahams dilemma: Funding creativity Graham, much like her teachers, Ruth St, Denis and Ted Shawn, found that artistic creativity needs a financial base. In 1930, Graham opened a dance school, which she operated as a sole proprietorship until 1956.43 Yet opening the school did not prove a lasting solution; Graham still found hers elf trapped by the dilemma of whether to spend her time on financial and administrat ive affairs or on creative artistic experimentation. Graham turned to what must have seemed an ideal solution: she chose to seek funding from non-profit corpor ations in the 1940s, thus freeing her from the worries of financing her art.44 In 1948, the Martha Graham Center of Contemporary Dance (the Center), which was initially called the Martha Gr aham Foundation for Contemporary Dance, was incorporated.45 Shortly thereafte r, the Martha Graham School of Dance (the School) was incorporated in 1956.46 The Center and the School were essentially the same entity because t hey had the same board of directors, used the same facilities, shared bank a ccounts, and combined tax statements.47 Simultaneously, both the Center and other non-profits financed Grahams activities by 43 Martha Graham Sch. & Dance Found., Inc. v. Mart ha Graham Ctr. of Contemporary Dance, Inc., 224 F. Supp. 2d 567, 572 (S.D.N.Y. 2002) [hereinafter Graham II ]. 44 Graham III, 380 F.3d at 629. 45 Id. 46 Id. 47 Graham II, 224 F.Supp. 2d at 572.
159 promoting and disseminating her technique and by raising and managing funds for performances.48 In 1956, Graham sold her sole proprietorship to the School;49 simultaneously, she signed a ten-year (1956-1966) part-time em ployment contract to serve as the Program Director of the School.50 The contract required that Graham simply provide the School with one-third of her professional time,51 and specified teaching and administrative duties,52 but not choreography. Because of additional subsidy from other non-profit organizations, Graham was able to both teach and choreograph.53 In 1966, the School renewed its t en-year contract with Graham, but this time, changed her appointment to Artistic Direc tor, and due to financial cont ingencies, added new duties, such as choreographing new work, overseei ng the repertory, rehearsing the company, and supervising the school.54 The Center credibly testified that it is during this period that there was a tacit agr eement between Graham and the boar d of directors that the Center owned any new choreographed pieces Graham produced, since choreography was listed as one of duties the contract s pecified; furthermore Graham received a regular salary, with tax deductions withheld, as a regular employee.55 Because her 48 Graham III, 380 F.3d at 637. 49 Id. at 629. 50 Id. at 637. 51 Id. at 638. 52 Id. 53 See id. 54 Graham II, 224 F. Supp. 2d at 573. 55 Id.
160 contract was renewed indefinitely in 1976, Graham remained the Artistic Director and Chief Executive of both the School and the Center until she passed away in 1991.56 The effect of Grahams death: The battle over ownership of Grahams choreographic works After Grahams death in 1991, Protas was promoted from Co-Associate Artistic Director to Artistic Director of the Center, replacing Graham at the helm.57 Seven years later, in 1998, Protas creat ed the Martha Graham Trust (t he Trust), to which he transferred the copyrights to Grahams choreographic works; the board did not contest the transfer though donors applied pressure on the board to di slodge Protas from his post.58 Not long after, Protas, through the Trust, founded t he [non-profit] Martha Graham School and Dance Foun dation (S&D Foundation).59 The Trust licensed many of Grahams dances; in 1999, it granted the Center an exclusive license to teach the Martha Graham technique, and a non-exclusiv e license to present live performances60 of Grahams choreographic works. As a condi tion of this agreement, Protas would step down from being the Artistic Director but remain a salari ed employee, as Artistic Consultant, of the Center.61 In 2000, Protas and the board vehemently disagreed 56 Graham III, 380 F.3d at 639. 57 Id. at 630. 58 Id. 59 Id. 60 Id. 61 Id. See also Jennifer Dunning, Martha Grahams Legacy: How the Dances Will Now Be Danced, New York Times September 8, 1999, http://partners.nytimes. com/library/dance/0908 99dance-graham.html; Jennifer Dunning, Martha Graham Board Seeks to Remove Director, New York Times March 25, 2000, http://www.nytimes.com/2000/03/25/arts/martha-graham-b oard-seeks-to-remove-director.html?src=pm.
161 regarding the viability of a new Artistic Director; the Ce nters financial troubles deepened, forcing them to suspend operations.62 From 2000 to 2001, both Protas and the Center independently got copyright certificates of registration for Mart ha Grahams thirty choreographed works.63 However, the S&D Foundation, controll ed by Protas, was the exclusive American licensee for performances of Grahams choreography and the exploitation of the Martha Graham trademark.64 Nevertheless, in 2001, the Center was able to reopen due to financial support.65 Protas now launched a legal attack agains t his competitor for ownership over Grahams intellectual property. Based on Grahams wil l, he sought to enjoin the Center and the School from exploiting the Mart ha Graham trademark, using her dance techniques, and performing her choreography; ev en more emphatically, Protas sought a declaratory judgment that t he Trust owned all the rights to Grahams dances, and the sets and jewelry associated with the performances of Grahams choreography.66 Briefly summarized, the central issue bef ore the Southern District of New York was whether the Center owned any legiti mate copyright to Grahams choreographic 62 Graham III, 380 F.3d at 630. See also Jennifer Dunning, Performances Are Suspended In Dance Group Graham Started, New York Times May 26, 2000, http://www.nytimes.com/2000/05/26/ nyregion/performances-are-suspended-in-dance-group-grahamstarted.html. 63 See Graham III, 380 F.3d at 630. 64 Id. 65 Id. 66 Graham III, 380 F.3d at 631. S ee also Doreen Carvajal, Bitter Standoff Imperils a Cherished Dance Legacy, New York Times July 6, 2000, http://www.nytimes.com/20 00/07/06/arts/bitter-standoff-imperilsa-cherished-dance-legacy.html; Jennifer Dunning, Cha llenging Graham Board, Director Reveals A Rival Plan, New York Times November 1, 2000, http://www.nytimes. com/2000/11/01/arts/challenging-grahamboard-director-revealsa-rival-plan.html.
162 pieces.67 Crucially, the court f ound that Protas had violated his fiduciary duty of undivided loyalty to the Center and the School.68 Yet most of the courts opinion hinged on whether Graham actually owned the copy right to her choreographic creations, and thus, could pass her ownership of these right s to her chosen heir, Protas. Ultimately, the district court ruled that by virtue of the contract s Graham had signed, the Center owned the copyright to forty-five dances, while Protas S&D Fo undation owned the copyright to only one dance.69 Regarding the remaining work, the court ruled that ten of the dances were in public domain and that nine were not yet published with the required notice; finally for five works, the court found that neither side had met the burden of proving the commissioner of the work (i.e ., her employer) had intended that Graham reserve her copyright.70 On appeal, Protas claimed that the dist rict courts decision was erroneous because none of Grahams dances was work for hire.71 However, the Second Circuit affirmed most of the district courts opi nion, finding that because the majority of Grahams choreographic creations were wor ks for hire, the Center, and not Protas, owned the copyright to these works.72 Nevertheless, the court reversed the district 67 See Graham II, 224 F. Supp. 2d at 607-09. S ee generally Joseph Carman, DANCE; Who Owns A Dance? It Depends on the Maker, New York Times December 23, 2001, http://query.nytimes.com/gst/fullpage.html?r es=9D0DEFDC153EF930A 15751C1A9679C8B63. 68 Graham II, 224 F. Supp. 2d at 521. 69 See Graham II, 224 F. Supp. 2d at 570. See also Jennifer Dunning, In Ruling, Dance Center May Use Graham Name, New York Times August 8, 2001, http://www.nytimes. com/2001/08/08/nyregion/in-rulingdance-center-may-use-the-graham-name.html. 70 Graham II, 224 F. Supp. 2d at 570. 71 Graham III, 380 F.3d at 632. 72 Id. at 637-42. See also Jennifer Dunning, Metro Briefing: New York: Manhattan: Martha Graham Center Wins Dance Rights, New York Times August 19, 2004, http://query.nytimes.com/gst/fullpage.html?res=9E0 CE3D91E3FF93AA2575BC0A9629 C8B63; Felicia R.
163 courts decision regarding the works Gr aham created between 1956-1965, finding that because Graham had simply been a part-time employee (with t he creation of new choreographic works not one of her contracted duties), these particular pieces were not works for hire.73 Additionally, the court reversed the ownership of one dance, Acrobats of God granting that to Protas because he ow ned the renewal term of the copyright.74 Ultimately, the court rem anded the issue of determining ownership of seven dances published between 1956 and 1965 because two had been erroneously cited as unpublished.75 To determine whether Grahams choreographic pieces were works for hire, the Second Circuit applied the instance and expense test; in brief, the court held that Grahams status change from part-time empl oyee to full-time employee rendered the choreography she produced from 1966 to 1977 works for hire.76 By the same token, the dances created when Graham was Program Direc tor, a part-time pos ition, were not works for hire.77 Although the courts reasoning seems logical, the court clearly had to struggle with justifying how the shift from part-time to a fu ll-time status pragmatically changed anything, in terms of the expense prong (i.e., who had invested in/financed Lee, Graham Legacy, On the Stage Again, New York Times September 29, 2004, http://www.nytimes.com/2004/09/29/arts/dance/29grah. html?_r=1&ref=ronprotas; John Rockwell, Arts, Briefly; Martha Graham Center Wins Court Ruling, New York Times July 14, 2006, http://query.nytimes.com/gst/fullpage.html?res=9 D05EED71E30F937A 25754C0A9609C8B 63&ref=ronpro tas. 73 See 17 U.S.C. §101 (2000) (defining work for hire as (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specia lly ordered or commissioned for use as a contribution to a collective work in enumerated instances.) 74 Graham III, 380 F.3d at 647. 75 Id. 76 Graham III, 380 F.3d at 639-40. 77 See id. at 637-39.
164 the development of the c horeography); in both positions Graham had access to the same dancers and rehearsal space.78 Even more difficult to justify was the instance prong (who initiated or prov ided the impetus for the devel opment of the choreographic works), which would require that the Center be the one that had insisted that the work be performed, and not Graham;79 given Grahams leadership at the Center (and her passion for choreography as an end in itself), that was a position difficult to uphold. It is striking that many of the arguments that wres ted control over Grahams works away from her estate to the Center could equally have applied to Balanchines estate, in its battle with the New York Ballet Company, and this is where it is Grahams sex that becomes a crucial factor, as revealed in the rhetoric of t he courts statements. Legally, such arguments, based on the thirteen Reid factors (i n brief, factors that help determine whether the person hired wa s an employee or an independent contractor)80 specified by the 1976 Copyright Act and upheld by case law,81 focused on the degree of control the hiring party had ov er the manner and means of creation82 of 78 See id. at 638. 79 Id. at 640. 80 For detailed examinations of the history of the work for hire doctrine leading up to Reid, see Katherine B. Marik, Community for Creative Non-Violence v. Reid: New Certainty for the Copyright Work for Hire Doctrine, Pepperdine Law Review 18, no. 3 (1991): 591-608; Christine Leahy Weinberg, Community For Creative Non-Violence v. Reid: A Specious So lution to the Works Made for Hire Problem, Boston College Law Review 32, no. 3:3 (1991): 666. 81 The Reid factors to be considered include the skill required, the source of the instrumentalities and tools used in creating the work, where the work was cr eated, the duration of the relationship between the parties, whether the hiring party has the right to assign additional projects to the hired party, the method of payment, the extent of the hired party's discretion over when and how long to work, the hired party's role in hiring and paying assistants, whether the hiring par ty is in business and whether the work is part of the regular business of the hiring party, the provis ion of employee benefits, and the tax treatment of the hired party. Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989). 82 See Aymes v. Bonelli, 980 F.2d 857, 861 (2d Cir. 19 92) (holding that the Second Circuit pays special attention to (1) the hiring partys right to control the manner and means of creation; (2) the skill required; (3) provision of employee benefits; (4) the tax treatment of the hire d party; and (5) whether the hiring party has the right to assign addition al projects to the hired party.)
165 the work. The courts justificat ion, that this is a situati on where the employer would not normally exercise control over the details,83 and that if any control exists, it may be very attenuated,84 seems problematic. It is also di fficult to imagine, given Grahams dominance (similar to Balanchines), that at the time the contracts were signed, Graham and the Center intended to establish a cl ear master-servant relationship. Notwithstanding these issues, in conclusion, because of the courts interpretation of the work for hire doctrine, where Grahams esta te failed to maintain control over her choreographic works, Balanc hines triumphed. Rhetorically, although the courts acknowledged that Graham was extremely talented85 and a great pioneer,86 they did not describe Grahams artistic stature as a choreographer in the same hyperbolic terms as they did, when describing Balanchine in Horgan II.87 In other words, although the same arguments could have been made about t he kind of relationship Balanchine had with the New York City Ballet, they were never raised in relation to his estates claim of ownership of his choreographic works. The ve ry idea of separating choreographic work from choreographer was inconceivable with Ba lanchine, as a (fully funded) white male ballet master, but it was possible, and ac tually rendered real with Graham, a white female modern dance choreographer (whose arti stic pursuits were always hounded by the threat of poverty). Nevertheless, crucia l to the delimitation of both Balanchines and 83 Graham III, 380 F.3d at 642. 84 Id. 85 Graham III, 380 F.3d at 642; see generally, Graham II 224 F. Supp.2d at 569. 86 Graham I, 153 F. Supp.2d at 514. 87 Horgan II, 789 F.2d at 158.
166 Grahams choreographic works as intelle ctual property was their possession of whiteness as status property. The next section examines whether Kat herine Dunham, the M atriarch of Black Dance, had access to whiteness as status proper ty, given her liminal status as a highly educated anthropologist, lightly complected skin and Caucasian features, and white husband. The answer is complex, as it is neither fully a yes, nor an unambiguous no. Katherine Dunham: Matriarch of Black Dance An Anthropologist with Hips Katherine Dunhams (1909-2006) most enduri ng informal title is probably as the venerable Matriarch of Black Dance88the woman who established the first major modern black company in the U.S., comb ining Afro-Caribbean, ballet and modern dance techniques.89 Yet when Dunham was at her peak of celebrity, especially given her international stardom (because like Fuller and Baker, Dunham found more financially lucrative stages to perform in Europe90), was called an ambassador with hips.91 And if Baker is rumored to have c onquered Paris with her derriere, Dunham is said to have forged a dance-based Pan-Afric anist community by forging ties among peoples of the African diaspora92 through the eloquent use of her hips and legs. A 88Katherine Dunham, Encyclopedia of World Biography, accessed November 30, 2012, http://www.notablebiographies.com/newsmake rs2/2007-Co-Lh/Dunham-Katherine.html. 89 Ibid. 90 Dunham is claimed to have said, in relation to the financial stability of her dance company, Katherine Dunham: Dancer, Missouri Historical Society, accessed November 30, 2012, http://www.mohistory.org/KatherineDunham/dancer.htm. 91 Ibid. 92 Ibid.
167 photograph, snapped by F.S. Schiffer, of Kat herine Dunhams famous legs (insured by Lloyds of London for $25,00093) reads in the back that Jean Cocteau claimed that If we writers could say with our pens what Kather ine Dunham says with her legs, our writings would be forbidden.94 Dunhams rise to celebrity coincided with Bakers decline95 as the embodiment of the erotic and primal savage and Ma rtha Grahams (among ot her white women) deployment of a then-principally sexless m odel of modern dancing (i.e., prior to her involvement with Erick Hawkins). In t he face of these pre-existing and often stereotyped and racialized templates, Dunham was unusual in her determination to include African dance traditions that featured more forthr ight acceptance of sexual elements in dance.96 93 Ibid. 94 Ibid. 95For examples of the rivalry between Dunham and Baker, especially in Paris, see Joyce Aschenbrenner, Katherine Dunham: Dancing a Life (Chicago, IL: University of Chicago Press, 2002), 143 (where Baker offers to introduce Dunham to Paris, and Dunham refuses, and Baker attempts to curry favor with Dunhams company members); Papich, Remembering Josephine 3 (where Baker refers to Dunham as that colored woman from America); Baker and Chase, Josephine: The Hungry Heart 285 (where Baker and Dunham try to outdo each other in terms of jewelr y, with Dunham wears emeralds and Baker wears diamonds). 96 Foulkes, Modern Bodies 72.
168 Figure 5-2. Public domain image of Katherine Dunham. And indeed, Dunhams chor eography and dance technique not only incorporated the whitened (and establis hed) elements of ballet and modern dance, but also a vocabulary of movement that had clear non-whitened elements, derived from her fieldwork as an anthropologist in the West Indies (Jamaica, Trinidad, Cuba, Haiti, Martinique).97 What Dunham gave modern dance wa s a coherent lexicon of African and Caribbean styles of movement a flexib le torso and spine, articulated pelvis and isolation of the limbs, a polyrhythmic stra tegy of moving which she integrated with techniques of ballet and modern dance.98 Dunhams dance technique comes closest to the theoretical model, built on Cohen Bulls characterizati on of Ghanaian dance, of a non-white aesthetic I schemat ized in Chapter II. The technique she developed 97 Sally Sommer, Free to Dance Biographies: Kath erine Dunham, PBS: Great Performances, accessed December 3, 2012, http://www.pbs.org/w net/freetodance/biographies/dunham.html. 98 Ibid.
169 emphasized the torso movement s of the primitive ritual of Caribbean-African dance and jazz rhythms.99 Though Dunham self-identified herself as bl ack, and stated, as one of her goals, the aspiration to [present] dark-skinned people in a manner delightful and acceptable to people who have never consi dered them as persons,100 Dunham was clearly of a mixed racial heritage. Dunham wa s born in Chicago, Illinois in 1909, the second child in Albert Millard Dunhams marriage to Fanny June Gillaume; according to Dunhams memoir, her mother possessed Indian, Fren ch Canadian, English and probably African ancestry; her father descended from a uni on of a Malagasy (Madagascan) man and a West African woman.101 Although Dunham and her brot her, Albert Jr., grew up in relatively socially and racially integr ated surroundings, where lower middle class families were more or less subject to t he same kinds of pressures, Dunham did experience racism, both from within her extended family (as her mothers side was nearly white102 and tended to treat her part-Indi an grandmother and retarded halfbrother, and her fathers side of t he family in general, with condescension103) and from the white neighborhoods her father sought to move his family into104 because of his 99 Ann Barzel, Mark Turbyfill and Ruth Page, The Lost Ten Years: The Untold Story of the DunhamTurbyfill Alliance, in Kaiso! Writings By and About Katherine Dunham eds. Vv A. Clark and Sara E. Johnson (Madison, WI: University of Wisconsin Press, 2005), 179. 100 Katherine Dunham, quoted by Harriet Ja ckson in American Dancer, Negro, Dance Magazine (September 1966): 40. See also Dunhams autobiography, A Touch of Innocence: Memoirs of Childhood (Chicago: University of Chicago Press, 1994). 101 Aschenbrenner, Dancing a Life 7. 102 Ibid. 103 Ibid. 104 Ibid.
170 business as a tailor (though her father is painted also as an oppressor especially in relation to her brother105). Dunhams dance background resembles Mart ha Grahams in that she started taking formal dance lessons comparatively la te (probably her early 20s, according to one of her teachers, Mark Turbyfill). As he recalls: It was in 1929 or 1930 when Mary introduced me to Katherine, but I recall feel ing that there was per haps something a little eccentric in my nature that caused me to accept Mary H unters urgent request, namely that I undertake the training of an ambitious Negro girl, who had never had a lesson in her life on the art, but w ho wanted to become a ballet dancer.106 In addition to Turbyfill, Dunham began to study ballet with Ludmilla Speranzeva, who had arrived in the U.S. via a Franco-Russian vaudeville performing group, the Chauve-Souris.107 Speranzeva was one of the few ballet teac hers (but also with some modern dance training) to agree to trai n black students as dancers,108 and she ultimately encouraged Dunham to focus on modern dance rather than ballet.109 Ruth Page, whom Mark Turbyfill invited to watch Dunham, during one of his private lessons with her, remarked that she would never be a classical dancer because she had started too late.110 But later, Page did recruit Dunham initially for a small part, and then later (in 1933),111 105 Ibid., 9. 106 Barzel, Turbyfill and Page, The Lost Ten Years, 181. 107 Katherine Dunham Timeline, Selections from t he Katherine Dunham Collection at the Library of Congress, accessed December 3, 2012, http:/ /lcweb2.loc.gov/diglib/ihas/html/dunham/dunhamtimeline.html. 108 Ibid. 109 Barzel, Turbyfill and Page, The Lost Ten Years, 179. 110 Ibid., 187. 111 Sommer, Free to Dance, 1.
171 because of a scheduling conflict requiring that she give up dancing the lead, Page recommended that this very intelligent and attractive dancer named Katherine Dunham112 take the lead, in her stead, in La Guiablesse a ballet whose origins lie in a Martinique legend, of a shedevil who lures a hapless young man from his true love.113 La Guiablesse was a resounding hit, and to some extent, forged t he template for Dunhams emerging artistic per sona. Participating in [ La Guiablesse ] was Katherine Dunhams first experience with ritual dance and certainly stimulated her to become involved in the African-based cu lture of the West Indies.114 The reasons for why Page did not think Dunham could become a classical ballerina are varied. On one hand, as ment ioned above, Dunham had started too late. Yet on the other, the same questions, discuss ed in Chapter II, concerning whether a black body could depict a whitened art form authentically and credibly seemed to hover over Pages doubts. Page also maintained a very different reason: that the time was not yet ripe for black ballerinas.115 Particularly within the cont ext of the times, neither the ballet dance establishment nor the public thought ballet to be appropriate for black bodies. As Aschenbrenner recounts: John Martin, a dance critic for the New York Times wrote as late as 1963 that an Afro-American should not be drawn into ballet since it is alien to him culturally, temperamentally an d anatomically. He pointed out the differences between fluidity and erect ness of the spine and contrasted the pelvic movement in N egro dancers to that of the European: When the Negro takes on the style of the Eu ropean, he succeeds only in being 112 Barzel, Turbyfill and Page, The Lost Ten Years, 187. 113 Ibid., note 1. 114 Ibid. 115 Aschenbrenner, Dancing a Life 27.
172 affected, just as the European dancer who attempts to dance like the Negro seems only gauche.116 None of these statements were startling within the context of the cultural attitudes that then prevailed. Yet Dunham, like Graham, in some ways, refused to be defined by the parameters of the classica l tradition. She vehemently re sisted the stereotype that blacks were spontaneous and natural (s ensual) dancers a stereotype Baker had exploited as shown in Chapter III and pointed out that blacks own assimilation of this white myth led to their ow n detriment. Young black dancer s, thinking the ability to dance their natural birthright, did not hav e the humility and fortit ude to withstand the rigors of classical dance training, ironically resulting in the further reinforcement of stereotypes. Dunham herself exclai med, with some frustration: Girls were constantly dropping out, and in each succeeding class there were new faces. It was disturbing, to say the least, for I had to re-teach them a dozen times a year! And the r eason for this was simply that the Negro believes in a certain falla cy the white person had bequeathed him namely, that the Negro is a natural -born performer and needs no training. I am sure that any Negro will agree with me, if, of course, he has reached any status in the artistic field, that the one thing we face most often is a double standard of judgment, and the result is an appraisal of good for the Negro that is far below the expected good of any other artist. We are too quickly complimented and unless we are exceedingly strong and discerning our work is apt to be abort ed in its very beginning. This ready acclamation retar ded our progress.117 Furthermore, using her anthropological training, Dunham refused to believe blacks were born as pure, savage, primal body, devoid of (and even incapable of) technique. Instead, Dunham stressed the sociol ogical nature of dance. Using a more scientific lens, she claimed: 116 Ibid. 117 Frederick L. Orme, The Negro in Dance, as Katherine Dunham Sees Him, in Kaiso! Writings By and About Katherine Dunham eds. Vv A. Clark and Sara E. Johns on (Madison, WI: University of Wisconsin Press, 2005), 192.
173 The African Negro is habituated to a certain kind of musical technique in which rhythm is basic. But th is appreciation is not based on any physical difference, nor is it p sychological; we are sociologically conditioned by our constant contact wit h it In the West Indies, women dance to the drums almost until the hour the child is bornand they nurse it, still dancing. But that does not mean there is no technique. There is. And it is every bit as essential that we train as vigorously as any other group, even in presenting ordinary folk material.118 Certainly, Dunhams combi nation of academic credentials of the highest caliber, her practical fieldwork experience, and her showy reinterpretation of ethnographic experience into choreographic staging yielded refractory responses from the dance world, critics and the public. She was called everything from a hip swinging anthropologist, to a scholar and serious le cturer of note, the hottest thing to hit Chicago since Mrs. OLearys cow kicked the bucket, and an authorit ative interpreter of primitive dance rhythm.119 Foulkes illustrates how white critics constantly referenced what must have been viewed a monstr ous conjunction between hyper-whitened scholarly credentials and non-white sensual mo vement, performed on public stages that partook of Hollywood glamour Much like the responses to Baker, Dunhams critics revealed an ambivalent attraction to D unhams sex appeal drawn to her as an embodiment of the hy persexualized primitive. Yet unlik e Baker, where the colonial spirit could patronizingly claim rational super iority, some white critics in the U.S. in particular seemed repulsed by the fact that someone who seem ed pure sensual (feminine/female) body on stage was also t he same person who could also effectively take on rational scholarly pursuit and withsta nd the difficulties masculine anthropological fieldwork requires. 118 Ibid. 119 Katherine Dunham, The Kennedy Center, acce ssed December 3, 2012, http://www.kennedycenter.org/explorer/artists/?entity_id=3721.
174 As an anthropologist the gist of Miss Dunhams report s eems to be that sex in the Caribbean is doing all righ t, was how Mr. John Martin, the influential New York Times critic put it. Did y ou ever see a Degree in Anthropology dancing? another critic asked. Reviewers slighted the seriousness of Dunhams academic study by continually using it to justify the sexy movements, while at the same time anthropology legitimated these so-called primitive movements in the sanctified realm of the theater for white critics. In either case, as an anthropol ogist uncovering primitive dances or as a black woman rotating her hips, Dunham decidedly affirmed white critics conceptions of all bl ack peoples as inherently more sexual.120 But Dunhams academic credentials were undoubtedly impeccable, especially given the times in which she, as a young bl ack woman from low middle class origins, gained access to them, while experimenting with dance. The list of Dunhams teachers and mentors reads like a Whos Who among ant hropological circles, and includes Robert Redfield, Melville Herkovits, Edward Sapir, A.R. Radcliffe-Brown, Bronislaw Malinowski, and Lloyd Warner, among others.121 And it is among such anthropologists, especially Redfield, that Dunham found a haven from racial discrimination.122 Aschenbrenner describes the kernel of the f undamental values that underlay the critical methodological tools deployed by the Univer sity of Chicagos Anthropology Department, which Dunham both assimilated and from which she benefitted. The position against racial discrimi nation for American anthropologists was established by Boas, a German Jew and trained scientist who was appalled by European racism. He ar gued that race and culture are independent of each other, the one being genetically inherited, the other learned. Consequently, to argue i nnate inferiority of one group over another on the basis of learned behav ior was unscientific; furthermore, 120 Foulkes, Modern Bodies 72-73. 121 Aschenbrenner, Dancing a Life 29. 122 Ibid., 32.
175 since all races had developed civilizati ons with the highest expressions of art and learning, all had equal inherent potential.123 Some sources, such as the Encyclopedia of World Biography wrongly claim that Dunham earned a doctorate in anthropology,124 but it is clear that the highest scholarly degree Dunham finished was a ma sters degree, produced from field research done in the West Indies (Jamaica, Tr inidad, Cuba, Haiti, Martinique) funded by the Rosenwald Travel Fellowship in 1936. Her mast ers thesis, The Dances of Haiti,125 was eventually published (Northwestern University, 1947),126 but far beyond academic degrees, Dunham achieved fame as a prolific aut hor and much sought-after lecturer on anthropology and dance. Her numerous articles as well as the three books she wrote, Journey to Accampong (about the Maroon Society of the Jamaican Blue Mountains, published in1946), The Dances of Haiti (her masters thesis published initially in Spanish and then in English in 1947127), and Island Possessed (about her fascination with Haiti and her eventual initiation into t he Voudou religion, published in 1969) had a consistent thematic: they emphasized how African religions and rituals adapted to the New World.128 123 Franz Boas, Race, Language and Culture (New York: Macmillan, 1940), cited in Aschenbrenner, Dancing a Life 32-33. 124 Encyclopedia of World Biography, Katherine Dunham. 125 Reynolds and McCormick, No Fixed Points 341. 126 Sommer, Free to Dance, 1. 127 An earlier edition of Dunhams thesis appears to be have been published by the University of California at Los Angeles Press in 1983, as revisions of Las Danzas di Hait in Acta Anthropologica 2, no. 4 (Mexico, 1947), and Les Dances de Haiti (Paris: Fasquel Press, 1957); Dorothea Fischer-Hornung, Jungle in the Spotlight?: Primitivism and Est eem: Katherine Dunhams 1954 German Tour, in Blackening Europe: The African American Presence ed. Heike Raphael-Hernandez (London and New York: Routledge, 2004), 67, note 37. 128 Fischer-Hornung, Kathe rine Dunhams 1954 German Tour, 67, note 37.
176 Yet the very same scholarly credentials some white (male) critics attempted to cast doubt on were the very same rhetorical weapons other critics used to defend her and legitimize her work. For example, when Sol Hurok, a savvy business oriented impresario, convinced Dunham to restage Tropical Revue for its showing in Boston (and its more puritanical ge ographical neigh bors) without LAgya which was deemed too heavy and to substitute the more lively Rites of Passage Boston critics flew to her defense. To rebut the city c ensor, Elinor Hughes of the Boston Herald for example, carefully frontloaded her defense of Dunham s ethno-choreography (and Dunham) by itemizing the fieldwork Dunham had done toward s her masters thesis, Dunhams being awarded several fellowships to continue her re search, and her brother Albert Jr.s status as a faculty member of Howard University.129 Yet as Foulke perceptively observes: Still, Dunham provoked censure while [Ted] Shawn [Grahams former teacher and Ruth St. Denis husband] and His Men Dancer s, performing as nearly nude as possible on Boston stages, did not. The sexual allure of black women caused more consternation than that of white men.130 Yet like Baker, Dunhams uniquene ss made her celebrity even more unimpeachable in Europe. And like Bake r, Dunham was an expe rt at creating an image, rhetorically manipulati ng the numerous interviews she gave, capitalizing on both her image as a legitimate scholar and as a glamourized stara sexy woman with the brain of an academic. For example, in an interview with Der Spiegel one of the most influential postwar German weekly newspaper s, she began with expressing dismay over 129 Foulkes, Modern Bodies 73. 130 Ibid.
177 the popular tendency to sexualize her program s, but then switched flippantly to the claim: I simply portrayed myself as an in tellectual, you know. And having gotten her audience to admit the strength of her academic credentials, expertly raised the rhetorical question: Today I can affo rd to say: Whats wrong with sex?131 In that same Spiegel feature, Dunham rhetorica lly positioned herself as a catalyst who wants to bring together contrasting cultur es, rendering herself a floating island of negritude that aimed to return to [African-Americans] some of that unadulterated race consciousness, to return the strongly rhythm ic impulses, which they consciously or unconsciously deny because of their inferiority complex regar ding industrially advanced Americans.132 But unlike Baker, Dunham was portray ed as someone with both sophistication and eloquence, as well as the exotic primitivism Baker h ad come to symbolize. The result was an ecstatic embrace of this impressive example of the intellectual and artistic potential of the colored race!133 A 1954 clipping Fischer-Hornung translates practically hyperbolically gushes over Dunham. For four weeks Katherine Dunham has been touring Germany and word has gotten around that this dark-skinned, elegant American, the daughter of a Negro and a FrancoCanadian, is a phenomenal dancer, director, choreographer, impresario all wr apped up in onevery attractive person. To top it off, she holds a Ph .D., is a professor at Yale University, 131 Fischer-Hornung, Kat herine Dunhams 1954 German Tour, 60. For a detailed examination of American critics struggles to reconcile Dunhams status as an intellectual and a dancer who did not flinch from the sexualized elements at the center of her choreography, see Ramsay Burt, Katherine Dunhams Rite de Passage : Censorship and Sexuality, in EmBODYing Liberation: The Black Body in American Dance eds. Dorothea Fischer-Hornung and Alison D. Goeller (Hamburg and London: LIT Verlag, Mnster, 2001). 132 Fischer-Hornung, K atherine Dunhams 1954 German Tour, 60. 133 Ibid. at 61.
178 a writer, a renowned ethnol ogist, honorary member of the Royal Society of Anthropology and a painter.134 The fact that Dunhams second husband, John Pratt, was also the Technical Advisor of the Dunham Company and the Consul ting Director of the Katherine Dunham School of Arts and Research135 the man who costumed her who was also white, probably helped to further whiten D unham, which worked to her unambiguous advantage in Europe, but proved more refractory in the U.S., as we shall later see. So powerful was Dunhams image in Europe that when word got out that Katherine Dunham and John Pratt were looking to adopt a boy, as a companion to their first adopted child, Marie Christine, a German single mother, Elizabeth Willer, who had had a liaison with an African-American soldier, wrote to Dunham, pleading with her to give her any kind of work, in order to support her two mixed race sons.136 That Dunham was perceived as someone who had both the power and compassion to respond to this kind of plea reflects how reverentially she was regarded in Germany at that time. Choreographically, Dunham is notable for incorporating not only folkloric material derived from a broad variety of exoti c sources, but also the familiar streetderived U.S. social dance steps characterist ic of African-Americ an entertainers that Baker surreptitiously drew fr om and exaggerated, ei ther comedically or sensually. Thus, in 1940, she choreographed and presented Tropics and Le Jazz Hot: From Haiti to 134 Ibid. Fischer-Hornung explains the confusion ov er Dunhams alleged Ph.D. is because she was awarded a Ph.B.a Bachelor of Philosophy from th e University of Chicago in 1936, and her alleged professorship at Yale is traceable to the dust jacket of Katherine Dunham's Journey to Accompong where Dunham is described as having delivered a le cture and demonstration to the Anthropology Club at Yale University. Ibid., 70, note 50. 135 Vv A. Clark, Designing Dunham: John Pratt s Method in Costume and Dcor: An Interview with John Pratt, in Kaiso! Writings By and About Katherine Dunham eds. Vv A. Clark and Sara E. Johnson (Madison, WI: University of Wisconsin Press, 2005), 208. 136 Fischer-Hornung, K atherine Dunhams 1954 German Tour, 64-65.
179 Harlem adapting dances from th e West Indies, Cuba, and Me xico, as well as early black American social dances such as the ju ba, cakewalk, ballin the jack, and strut.137 But despite Dunhams eclecticism, D unham did privilege the Caribbean as the ethnographic cradle from which she sought to discover and rearticulate a basic vocabulary that seemed, to her, to be common to African-derived dances in the U.S. Dunham drew from the philo sophy of one of her mentor s, Melville Herkovits of Northwestern University, who believed that even black Americans, despite the trauma of slavery, retained memory of many Afric anisms, and argued for a reforging of links, along lines of similar values, across the Atlantic and the U.S.138 Dunham herself explained her motives in choosi ng to focus on the dances of the Caribbean. Realizing that the amalgamation of the Negro into white America has in a large measure brought about a complete lack of contact with those thi ngs which were racially [culturally] his. I have recently begun an intensive study of the Negro under other less absorbing cultural contacts; in the West Indies, the French, Spanish, and English influence have been of far less importance than that of the Americ an in preserving the dance forms which are truly Negro.139 For example, to Dunhams anthropologic ally trained eye, the Haitian drums appeared to resemble those brought by Afri can slaves than present-day drums in 137 Reynolds and McCormick, No Fixed Points 341. 138 See generally, Melville Herkovits, Myth of the Negro Past (New York: Harper & Bros., 1941). 139 Joyce Aschenbrenner, Katherine Dunham: Reflecti ons on the Social and Political Contexts of AfroAmerican Dance, Dance Research Journal Annual XI (Congress on Research in Dance, 1980), 45 quoting from Katherine Dunham, The Future of the Negro Dance, Dance Herald (1938): 5.
180 contemporary urban Africa.140 And drummers played a key ro le, both in the initiation rites Dunham initially observed and later parti cipated as an initiate, which she eventually reconstructed through performance; Dunham ac quired two sets of the three drums used in the voudun one at her own initiation as well as an older set one apparently kept hidden to protect them from the eyes of the uninitiat ed during the U.S. Marine occupation.141 As Dunham observed, it was the dr ums and the drummers who set the atmosphere and helped induce the mental state necessary to ritual; for example, the zepaules movement, which involved a s pasmodic hunching forward and release of the shoulders, according to Dunham, was d riven by the piercing beat of the kata, enriched by the broken rhythm s of the seconde, and eroticiz ed by the deep, insistent tones of the mama drums.142 This movement induced a repetitive, deep breathing, which, combined with the overwhelming beat of the drums and the rhythmic movement, induced something similar to possession, wh ich the drummers kept under a tight leash by creating breaks, just as the dancers achieved a critical point of intensity. The drummers take complete control of thes e feints once the dancer has indicated, consciously or not, that he is ready for t hem, breaking the rhythm, sucking air in and hissing it out, ejaculating glottal sounds whic h are supposed to beat the broken or outof-rhythm dancer of group of dancers back in line and to show that it is they, the 140 Katherine Dunham, Island Possessed (New York: Doubleday, 1969; Chicago: University of Chicago Press, 1994), 91. 141 Aschenbrenner, Dancing a Life 73. 142 Dunham, Island Possessed 130-31.
181 drummers, who domin ate the rhythms.143 This anthropological insight proved crucial to the eventual evolution of Dunhams choreography. Dunham meticulously studied how form and f unction are intimately intertwined in dance, as rooted in cultur e; the primary social f unctions of dance in the voudun are religious, and Aschenbrenner catalogu es some of Dunhams findings: The zepaules, with its rapid pumping movement of the shoulders, served to clear the air and bring about a semi -hypnotic state. It was usually directed to Legba, the intermediary for the mystres, and prepared the participants for their recept ion. The yonvalou, involving a flowing motion along the spinal column, induced a state of complete relaxation and ecstacy associated with prayer. It caused the worshiper to be completely open to the mystres, especially, Da mballa, Erzulie, and Aida Ouedo, although others also might appear. The maison, involving grinding of the hips, was deliberately sexual in effect acting as an emotional cathartic to someone who was possessed.144 Yet not all dances were for religious pur poses; some were very secular social dances, such as the couple dances, like the meringue, rumba, and bolero, all pou plaisifor pleasure.145 Others were for large crowds such the Mardi Gras, where Dunham observed that despite the overt sexua lity of these social dances, culturally, they were not supposed to represent literal physical sex. Rather, they were symbolic, anthropologically rooted in agr icultural and fertility rites.146 They also functioned as a culturally sanctioned, specially delimit ed occasion in which class boundaries became loosened and where classifications based on ski n tones became irrelevant, replaced by groupings by age and sex.147 These, too, became essential animating elements of 143 Ibid. 144 Aschenbrenner, Dancing a Life 82-83. 145 Ibid., 83. 146 Ibid., 84. 147 Ibid.
182 eventual choreography, but these were lar gely misunderstood particularly by many (white) American and European audiences, for whom the movements seemed lewd and to whom her choreography reinforced stereotypes. Dunhams Liminalities Dunham cemented her career and reputation through what she called revues staging her re-memory of her anthropolog ical experiences and Caribbean dance and music together with the lush settings, plush cost umes, orchestral reinterpretations of the Caribbean rhythms and folk music, and t he polished look of Am erican showbiz. Dancers moved through fantastical tropical paradises or artistically designed jukejoints, while a loose storyline held together a succession of diverse dances.148 Like Balanchine, Dunham was prolific, she c horeographed over 90 individual dances and produced five revues, four of which we re successful both on Broadway and on worldwide tours.149 Given her stature, ther efore, it is of vital importance to study what happened when circumstances bring Balanc hine and her together to collaborate. It was after she was already establis hed that Dunham c ollaborated with Balanchine on Cabin in the Sky (1940), the Broadway musica l fantasy whose story revolved around a kindhearted by morally am bivalent Everyman who dies from being cut up in a craps game and is bound for Hell but is saved by his wifes prayers and given extra time to qualify for Heaven.150 The cast consisted of Ethel Waters as Petunia as the virtuous wife; Dooley Wilson as her wandering husband; Re x Ingram as Lucifer 148 Sommer, Free to Dance, 2. 149 Ibid. 150 Valis Hill, Collaborating with Balanchine, 235.
183 Jr. and Katherine Dunham as Ge orgia Brown, the temptress.151 Bernard Taper, one of Balanchines celebrated biograph ers, claimed that not only did Balanchine use his own savings into producing the show and st age the show, but also did the entire choreography.152 Yet in an interview cited by Taper himself, Balanchine sounded evasive about who deserved credi t for the choreography. What is the use of inventing a series of movements which are a white m ans idea of a Negros walk or stance or slouch? I only needed to indicate a disposition of dancers on the stage. The rest almost improvised itself.153 Balanchines remarks reflected a common view and a common practice at that time,that any kind of movement, especially of the primitive or exotic kind, was considered natural to (unreflective) bla ck bodies; thus, any choreographic work done by a black choreogr apher in collaborat ion with a white choreographer, especially one of Balanchine s stature, would be rendered invisible.154 According to Aschenbrenner, this was a fa irly common occurrence: black dancers choreographed numbers for which either white choreographers we re credited or else no one was listed as a choreographer.155 And indeed, the 1940 Broadway production of Cabin in the Sky did not give Dunham any credit as a choreographer. 156 151 Aschenbrenner, Dancing a Life 124. 152 Taper, Balanchine: A Biography, 195. 153 Ibid. 154 For the invisibility of black choreographers in re lation to white theater goers, see generally, Danielle Robinson, Oh, You Black Bottom! Appropriation, Authenticity, and Opportunity in the Jazz Dance Teaching of 1920s New York, Dance Research Journal 38, No. 1/2 (2006): 19-42. 155 Aschenbrenner, Dancing a Life 125-25. See also Marshall Stearns and Jean Stearns, Jazz Dance: The Story of American Vernacular Dance (London: Macmillan, 1968), 309. 156 Valis Hill, Collaborating with Balanchine, 235.
184 In Dunhams extended interview with Constance Valis Hall conducted on November 1999 and January 2000, Dunham herself initially appeared to try to duck the question of how much the co-choreography,157 as it has been popularly characterized, was genuinely collaborative. Dunhams initial responses sounded just as evasive as Balanchines; she repeatedly stre ssed that she did not want to take anything away from Balanchine but at the same hi nted that things attributed to Balanchines influence were actually her own creations. CVH: Do you see this picture of Balanchine holding you up by the leg and stretching it? And look, in this pi cture, at the way t he girls are perched high on the shoulders of the men. That kind of liftingdoes that look like something you would do on your company at that time? KD: I think so. I dont want to take anything away from Balanchine [italics mine], but I would imagine that that was part of our training.158 And again, the same phrase and rhetor ical indirection occurs in another section of the interview, this ti me, in relation to musical score: CVH: You added music to Cabin in the Sky didnt you, with your musicians? Two drummers [J. Emanuel Vanderhans and Cndido Vicenty] from your company were also working on Cabin in the Sky Did they influence Dukelskys musical score? KD: I think so. Not to take anything away from [Dukelsky] [italics mine], but I think that our musicians were all r oot-core musicians. They knew what they were talking about and they realized also that the achiever [Dukelsky] was the person who c ould create upon these fundamental beliefs, and they respected Ve rnon for that reason .159 It is only later in the interview, afte r repeated questioning, that Dunham finally admitted that Balanchine, for the most part, left choreography to her. But in the usual rhetorical pattern, reflecting Dunhams sa vviness about survival in the dance world, 157 Reynolds and McCormick, No Fixed Points 341. 158 Valis Hill, Collaborating with Balanchine, 238. 159 Ibid., 239.
185 Dunham frontloaded her remarks with pr aise for his cleverness and European sophistication and then expresse d gratitude to the Russian bal let master for giving her as much freedom and responsibility as he did. She thus skillfully avoided politically taking away anything from Balanchine whil e owning her own work as hers. I quote a significant amount of the interview below to show Dunhams hesitations in claiming ownership of her work while not upse tting the establish ed pecking order of choreographic genius. CVH: How would you do it? Would he sa y, Katherine, I see it this way? KD: Well, he would say what had to be done next, and when he had an idea, like the Egyptian scene, maybe Id add a few things In the Egyptian scene, I cant tell which one of us did my entrance. There were clothes hanging on a clothes line drying I woul d imagine that could have been Balanchines [idea] because it wa s a very clever idea, and sort of European. And thats the way we set up things. You know, he said, I think you should come through these clothes that have been hung up to dry. CVH: But no steps [italics mine]. KD: In some [italics mine] of them [Balanc hine] would have the idea. I think in most of them he would go through the whole scenario and say where the dance was [italics mine]. That was the first musical I had ever done. And I was quite willing to have him give me as much as he could. He never bothered me about the exac t step of the choreography. And unless it interfered with the story, he w ouldnt stop me in any theme in the way I would want to do it. As I think about it, and what I w ant to say about it, Id say that he deserves a great deal of credit for what I did [italics mine]. [He] put me in a position that wasnt in before, I guess, that I was able to engage the company, to pay them by union [scale]. .160 The interview also reveals that Dunham not only choreographed most, if not all, of the numbers, but also, as Aschenbrenner remarks, that she staged most of the 160 Ibid., 246.
186 show, although she was not given credit for it.161 And indeed, other accounts corroborate Dunhams claims. For example, Sol Hurok described Dunhams enormous success as actress, singer, dancer and dance director [italics mine] in Cabin .162 But if Dunham carefully chose her words in relation to Balanchine, she did not hide her irritation with Agnes DeMille, (white) choreographer of Oklahoma! for her claims that she was the first to fuse Am erican vernacular dance, ballet and Broadway show dancing,163 when Dunhams plantation dances, which had experimented with such choreographic fusions, preceded De Milles. S he remarked: I wasnt happy about that It has happened to me several times: people taking some of the songs I have researchedyou know, popular songsand tr anslating them. I guess its bound to happen. I was really annoyed with [DeMille] because I think her idea came from something called the plantation dances, not in Cabin in the Sky but in our concerts.164 Similarly, she expressed a clear annoyance with a critic, whose name was omitted from the interview transcript, w ho condescendingly remarked that Dunham seemed too eager to show that she could point her foot [i ndicating her classical ballet training] in LAgya.165 She scoffed: Ridiculous. It was a love scene fo r me, and for the part I was doing I could get out, wiggle around, take my clothes off, of course. But when it came to this particular love scene, I us ed the movements of ballet. I think there are 161 Aschenbrenner, Dancing a Life 125. 162 Sol Hurok and Ruth Goode, Impresario: A memoir (New York: Random House, 1946), 286. See also Aschenbrenners interview with Tommy Gomez in Aschenbrenner, Dancing a Life 261, note 81. 163 Valis Hill, Collaborating with Balanchine, 242. 164 Ibid., 242. 165 Ibid., 243-44.
187 times when it just simply fit, if you know it well [italics mine].166 Rhetorically, Dunham thus again stressed the validity of her credentials as a balle rina, which she repeatedly attributed to Speranzevas training, as we ll as Speranzavas Russian-ness, much like Balanchine.167 In the same interview, Dunham recalled with sardonic humor that Martha Graham has given her the title of High Priestess of the Pelvic Girdle,168 revealing, once again, that despite her many credentials and innovative work as a choreographer and dancer, Dunham was not immune from racism or racist stereotypes. Nevertheless, it is clear that Dun hams credentials as an academic, her glamourized image, and the very manner in which she st aged her ethnographic research as performances, did privilege her to some extent, especially compared with Baker. Despite Dunhams and John Pra tts misgivings concerning the negative stereotypic depictions of Afri can-American life, it is cl ear that the success of her collaboration with Balanchine (and her res pectful acquiescence to the raced, sexed, and gendered hierarchy of the danc e world) is what launc hed her into stardom and an eventual successful career. It was after this period that she was able to launch her own dance company as an independent and commercia lly viable entity in the U.S., and it was also at this time that she chose the path of performance, ra ther than academia. Aschenbrenner recounts that Al Smart of Esquire Dunham and Pratts friend and colleague, posed the rhetorical question, regarding their misgivings about the negative stereotypes embedded in Cabin in the Sky : Who are we to criticize success?169 166 Ibid., 244. 167 Ibid., 238. 168 Ibid. 169 Aschenbrenner, Dancing a Life 125.
188 Compliance with the order of things was the price to be paid for admittance into the world of full celebrity. Although the company had previ ously experienced artistic success, now, for the first ti me, it was beginning to ent er into the business of commercial entertainment, and Dunham had to become an entrepreneur so it could survive.170 It was only after her collaboration with Balanchine that Dunham had the financial independence to attempt some of her more daring choreographic productions. For example, one of her more provocative signature pieces, Barrelhouse which draws on vernacular dance to explore a woman s loneliness and pursuit of pleasure and connection at a juke joint,171 was presented to audiences in 1950.172 Southland one of her more politically radical pieces, was fi rst staged in 1951 at the Teatro Municipal in Santiago, Chile, and was removed from the pr ogram because of the pressure the U.S. Embassy applied because of its concern over the non-salutary image of America it presented abroad.173 Thus, Dunham occupied a liminal positi on, as both a black woman earnestly interested in political activism, as reflec ted in several of her works, especially Southland which is about the lynching of an innocent black man wrongly accused by a white woman of attacking her,174 but also as a black woman whitened by her successful 170 Ibid., 125-26. 171 Elizabeth Chin, Katherine Dunhams Dance As Public Anthropology, American Anthropologist 112, No. 4 (December 2010): 641. 172 Library of Congress. Katherine Dunham Timeline, 8. 173 Ibid. 174 For a detailed description of the content of Southland as well as its historical reception, see Constance Valis Hill, Katherine Dunhams Southland Protest in the Face of Repression, in Dancing Many Drums: Excavations in African American Dance ed. Thomas F. DeFrance (Madiso n, WI: University of Wisconsin Press, 2002), 289-316.
189 integration of a whitened aesthetic in her translation of ethnographic research into dance performances. Reynolds and McCormick summarize Dunhams contributions to American dance history in this way: The means by which Dunham knit the various elements of her vignettes together included a manifestly theatrica l vocabulary of leaps, turns, and leg extensions with sinuous pelvic accents a blend of modern dance, Latin ballroom, and generalized black vernacular movement from the Islands. In spite of her anthropolog ical credentials and her adaptation of Creole and Latin American myths and ce remonies such as voodoo, she never presented herself as a concert artist in a didactic vein. Instead, Dunham went to great lengths to cr eate an engaging theatrical context for the material she used, along with a glamorous stage persona for herself, both greatly enhanced by the modish costumes and settings of her husband, John Pratt. Her manner was too innately refined [italics mine] to do justice to the primitive material she occasionally attempted .175 Reynolds and McCormicks remarks reveal an anxiety that repeatedly surfaces in relation to both white and black critics reception of Dunhams work: the question of authenticity, as her work, her image, and even her looks, seemed whitened, compared to, for example, Pearl Primus who pursued similar goals and scholarly interests as Dunham in the 1940s, but who did not have D unhams numerous liminalities. Having almost no formal training, Primus began studying modern dance with Graham and Weidman while pursuing scholarly anthr opological research related to dance in Africa and the Africanisms in sout hern black religious ceremonies.176 Foulkes points out how the difference in treatment, in relati on to the question of authenticity, could in some ways, be traced to the difference in loo ks between the two women. Practically all accounts describe Dunham as beautiful but beautiful according to a whitened standard of beauty. On the other hand, Pearl Primus, w ho physically conformed to 175 Reynolds and McCormick, No Fixed Points 342. 176 Ibid., 344.
190 stereotypic depictions of the Negroid race with a broad nose, large expressive eyes, dark pigmentation, and muscular thighs and buttocks,177 could be, unlike Dunham, be sensual without being distracting in terms of sex appeal, and thus credible as a strong, rhythmical, wild creat ure, a young filly romping over the pasture, showing all the signs of being a thorough-bred, and look ing out from jungle distances as, in Martha Grahams words, a panther.178 Thus, Foulkes succinctly outlines the significant differences in image between Dunham and Primus in this manner: With her lighter color, taller and leaner build, and narrower facial features, Dunham more closely fit white ideals of dancers and beauty and may have triggered a more hidden and festering r eason for the derisive comments: she reminded Americans of the tr uth of their racial heritage miscegenation In contrast, Prim usof unmixed African descent and with a stockier build that helped he r outjump any mangenerated less criticism.179 In relation to this question of authenticity, D unhams choreographic interpretation of her ethnographic research has also undergone some critique. For example, her much acclaimed Shango performed by the Alvin Ailey Dance Theater in 1987, has been criticized as lacking scholarly nuance, reifying stereotypes, and even of cultural appropriation. Halifu Osumare clear ly distills the essenc e of these charges against Dunhams reinterpretation of her et hnographic research into glossy revues. [ Shango ] is actually an amalgam of rit uals from several islands Haiti, Cuba, and Trinidad. The term Shango is not only the ubiquitous name for the Warrior Thunder deity of the Yo ruba of West Africa, but also the term associated with the Shango Baptist re ligion of Trinidad. The use of yanvalu movements and the earthly dance of Damballa are obvious Haitian allusions, while the general ce remony could be Haitian Voudou or Cuban Santeria The pas tiche effect of Dunhams oeuvre has offended 177 Foulkes, Modern Bodies 73. 178 Ibid., 74. See also Dance Observer 10, no. 8 (October 1943): 88. New York Times March, 18 1979. 179 Foulkes, Modern Bodies 74.
191 some people from the islands, causi ng accusations of her work not being true to any one tradition. Inappropriate cultural appropriation is a potential criticism of any artists work involved in research-to-performance methodology.180 Of course, in the hands of someone like Martha Graham or G eorge Balanchine, even if devoid of the intense ethnographic fi eld work Dunham had accomplished, such inappropriate cultural appropria tion would probably have been interpreted as artistic innovation, passing copyrights m odicum of originality test.181 Additionally, given that Dunhams ethnographic work drew principally from folklor e might have made any kind of possible copyright claim invalid. But that she wisely used the established kinaesthetic techniques and body vocabular ies of ballet and modern dance would probably have made any claim she might have raised, especially given the circumstances of Cabin in the Sky perhaps more like a claim to choreographic creation more likely to survive. But given the ra ced and gendered nature of the politics of the dance world, Dunham wisely refrained. Li ke Baker, Dunham instead relied on her ability to curate her image through the numer ous interviews she gave the media. But unlike Baker, Dunham did have some access even if not full access to whiteness as status property, and as such, was able to achieve some acclaim as a choreographer in her own rightbut only after dutiful service to the ballet master and genius, Balanchine. 180 Halifu Osumare, Dancing the Black Atlantic: Ka therine Dunhams Research -to-Performance Method, in Migration of Movement: Dance Across Americas, special issue, AmeriQuest 7, No 2 (2010), http://ejournals.library.vand erbilt.edu/index.php/ameriquests/article/view/165. 181 For example, Graham was the first dancer to win the Guggenheim Fellowship in 1930, and spent the grant exploring Aztec and Mayan archeological sites; Primitive Mysteries, staged in 1931, had no clear connection to this trip or her experiences, and Gra ham disavowed any literal influence on her work. See Freedman, Martha Graham 68-70; McDonagh, Martha Graham 85.
192 Graham and Dunham: A Brief Sketch of Comparisons and Cross-Currents Clearly, both Graham and Dunham saw t heir choreographic works as rebellions against ballets conventions. Some of th is was a strategic adaptationboth women started ballet training too late to be able to acquire the idealized body habits required to become a prima ballerina; furthermore, t heir physical appearances Martha with her severe exotic looks (while recognizably white) and Dunham with her sensual exotic look (while recognizably black) also militated against their effective assimilation into the conventional dance hierarchy, wh ich preferred willowy, fragile and lyrical bodies as the conventional canvasses upon which ballet ma sters choreographic creations could be metaphorically painted. But both were clearly driven by a desire to innovate to strip dance of what she considered extraneous movement, in Grahams case; and to cultivate an appreciation for Negro dance, in Dunhams case. Crucial to this innovation was the devel opment of new dance vocabularies and new techniques. For Graham, this involved t he development of contraction and release [a] forceful exhalation of breath produced a percussive flex ion of the torso and that this contraction could initiate a sequence of wavelike impulses flowing from the center of the body outwards. The opposite acti onthe intake of air she called release.182 This method of breathing naturally a ffected how the dancers weight could be shifted and broke the seamless lyricism of ballet, allowing her to emphasize the angularity and stiffness of bodily opposition, as expressive outlets. Traditional ballet needed a narrative to make the movement coherent; for Graham, the movement was the (emotional) narrative. Grahams iconic look was forged during her earlier work, 182 Reynolds and McCormick, No Fixed Points 146.
193 characterized by an utter rebellion against balle t, with its forceful energy and desire to strip itself of the ultra-femininity requir ed of ballerinas. Whereas the ballet dancer stretched her feet to continue the line of the ankle, Graham forcefully flexed the foot to create a right angle. Her arms were not rounded in balletic por t de bras, and her hands were used sparingly, almost as if to deny their traditional expressiveness. Grahams technique projected enormous nervous vitalit y based on her own wiry, sinewy, electric strength.183 Unlike ballet, which demanded that all bal lerinas become the embodiments of ethereal beauty, Grahams early signature look was one of tangible severe austerity some called it purity; other s called it ugliness. Gr ahams dancers were easily recognizable in their drab clothing reminiscent of studio garb; their t aut spines, blanched complexions, and hair pulled severely ba ck gave them an air of anointment.184 The cultural sources she seemed to draw from, and acknowledged as such, were from LatinAmerican, Native-American, Egyptian and As ian, as in one of her enduring master works, Primitive Mysteries (1931), which she choreographed a striking ritual about a ritual a Hispanic-Indian cerem ony in honor of the Virgin.185 As Deborah Jowitt observed: [In] Primitive Mysteries, she created a primitive style based in part on the straight, narrow look of Americ an Indian dancing. This early Graham style had the purity of an earth-sky ri te, with its rooted look, pounding feet, stiffly vertical posture, arms t hat branched occasionally into angular gestures. Austere, hopeful, unambi guous dancing that reflected her ruthless asceticism and her desire to purge dance of all trivialities of movement . 183 Ibid. 184 Ibid., 147. 185 Ibid., 148.
194 Graham also utilized f eatures of the so-calle d archaic style derived from Egyptian friezes feet wa lking in one direction while the upper body twists open against the base[bec ame] an ardent ambivalence. She kept the twist, increased it, bent the body in several places, tipped it slightly off center until in one of her famous fall sequences, she arrived at a position in which the arms opened in one direction, while the knees remained pressed together, hips avert ed from the focus of the reaching arms Elements of various Far Eastern styles have also enriched Grahams vocabulary, but these, too, she restruct ured. Frantic, beating arm ge stures or a bowed head made decorative Cambodian knee-walks look anythi ng but decorative. She added a twist to a flex-footed attitude (also Cambodian or Si amese), so that her head could look backwardaway from where her feet were going.186 And while modern dancers in general adopted, arguably, from black dancers, a looseness of the spine and the isolation of body parts, the movement of the hips and the pelvis (culturally charged with sexualized and erotic connotations) remained taboo, associated with low class burlesque acts and racist stereotypes. Sexual movements signified lower art, and modern dancers atte mpt at sexlessness revealed the gender, class and racial prejudices that codified a cultural hierarchy of high and low within modernism.187 Graham justified this choice of sexlessness (in which, arguably, female bodies acquired more masculine c haracteristics, rather than being stripped of gender) by employing a paradoxi cal rhetorical reconstruction to turn conventional aesthetics upside down; she argued: [U]gline ss may be beautiful if it cries out with the voice of power.188 In so doing, Graham, and other white modern dancers, reinforced 186 Jowitt, Monumental Martha, 456-57. 187 Foulkes, Modern Bodies 48. 188 Graham quoted in Merle Armitage, Martha Graham: The Early Years (New York: Da Capo Press, 1937), 97.
195 the dichotomy between high art versus popul ar culture a dichotomy that easily mirrored the white-black divide, and reinfo rced the association between whiteness and status property. Thus, Dunhams anthropologically based insertion of the pelvis into her choreography as not necessarily rooted in sex and eroticism, but in rituals of fertility, was met with ambivalence, given the prevaili ng cultural preconceptions. Dunham, like Graham, sought freedom fr om the strictures of classi cal ballet, although she did use balletic techniques to enhance and authorize her own technique a nd lexicon of bodily movements. And she was certainly not aver se, like Baker, to exploiting the exotic image the press forged for her, as an anthr opologist with hips a serious academic capable of staging glitzy st age and Hollywood productions, and like Graham, performing in the central role. Nevertheless, like Graham Dunham drew from a variety of sources, ranging from dances fr om the West Indies, Cuba, and Me xico, as well as early black American social dances such as the j uba, cakewalk, ballin the jack, and strut.189 Thus, whereas Graham sought to insulate herself from anything that resembled vaudeville, popular culture and social dancingand from anything that could be called a Negro aesthetic (though she was not averse to using black dancers in her ensembles, to frame her)Dunham embraced these as legitimate sources of choreographic innovation. For her, the terra incognita that required exploration lay not in classic Greek or Oriental landscapes, which to her had already been plumbed by (white) women like Martha Graham and Mary Wigman, but in those dance forms heretofore ignored. Dunham observed: 189 Reynolds and McCormick, No Fixed Points 341.
196 I would say that the danc e of the primitive has been scarcely touched, and this, perhaps, unlike the classic Greek and Oriental, it is the work of a student of ethnology, as well as a student of dance, to observe and record that which can be transferred to the fi eld of art and which will serve as a stimulus for creation. Additional work in ethnol ogy, particularly research work among the Indians and Negroes of America, island peoples, and primitive Africa, would contribute to science a comparative analysis of dance which has, I believe, not received adequate attention from scientists .190 But knowing the hierarchy within the dance world, Dunham forged a series of techniques that hybridized ballet, modern danc e, popular social modes of dance, and dance elements derived from her anthropologica l fieldwork. For example, Albirda Roses description of the Dunham Technique begins with traditional barre work, as well as what she calls Dunham presentation, in which the focus is on the raising of the arms dramatically, but in which ballets fo cus on the centering of the spine is kept.191 From there, body rolls follow, which seem to some extent, especially given the language used to describe the training, a specialized application of Grahams contraction and release to the pelvic area. In the pelvic area, contract and release should be repeated approximately four times working each specific area Using the gluteus, contract and release and repeat four times Move into the lower back area, c ontract and release four times (The student is still in the flat back position.) Move up into the middle area, contract and release four times Upper back area, contract and release, repeat four times 190 Katherine Dunham, Need for Study of Dances of Primitive Peoples, in Kaiso! Writings By and About Katherine Dunham eds. Vv A. Clark and Sara E. Johnson (Madison, WI: University of Wisconsin Press, 2005), 520. 191 Albirda Rose, Dunham Technique: Barre Work and Center Progressions, in Kaiso! Writings By and About Katherine Dunham eds. Vv A. Clark and Sara E. Johns on (Madison, WI: University of Wisconsin Press, 2005), 488-89.
197 Head area Then all of these body parts are put together in continuous motion to complete the full body roll.192 There are other elements of Dunhams choreography: progressions, which include the Dunham Walk, traveling isolat ions, and progressions in cultural context, which most heavily show the imprint of Dunhams Haitian-deriv ed ethnographic work. These progressions in cultural context incl ude Damballa, in which the upper torso is moving in continuous fluid motions t hat move throughout the entire spine;193 Yanvalou, in which the undulating movement of the torso that is char acteristic of Damballa is moved to any part of the body, whether, arms, hands, hips or torso where the even within the traditional ceremony itself, t he level of improvis ation is unlimited;194 Zpaules, which uses rapid, staccato shoulder isolat ion but with the shoulders moving forward in unison in a downward motion;195 and Mahi (my-ee), which emphasizes a fast rhythm and percussive movement for the feet, juxt aposed with the upper torso moving at a different tempo and quality of movement.196 Dunham also readily admitted to a C uban influence. The Cuban anthropologist, Fernando Ortiz, introduced Dunham to t he renowned drummers, La Rosa Estrada and Julio Mendez.197 And indeed, the Cuban rhumba and nani go, which depicts cowboys or 192 Ibid., 489. 193 Ibid., 493. 194 Ibid., 494. 195 Ibid., 494. 196 Ibid. 197 Aschenbrenner, Dancing a Life 205.
198 gauchos, became favorite number s of the Dunham Company.198 According to Marta Moreno Vega, director of t he Caribbean Cultural Center in New York, Dunham was the first to feature the bata, or the Cuban double-headed drum, in New York performances. In addition, the East Indi an influence persisted in D unhams stress on the seven chakras (especially the non-repression of the gr oin chakra, the source of sexual energy in African and Latin movement s) in her master classes.199 Later on, in 1966, when she had become a well-established artistic celebr ity with a fully developed body vocabulary and choreographic style, she was hired by Senegalese President Lopold Senghor to help train the Senegalese National Ballet.200 But by then, it was less a matter of Senegalese traditions influencing her art, than the Senegalese National Ballet being educated into her techniques. But precisely because Dunhams very statements seemed to tie her choreographic creations with unearthing some kind of fundamental body vocabulary unique to Negro or black dances, many critics seemed to expect her choreographic creations to display a certain authentic or documentary connection to its roots. Yet much as Dunham composed her published memo irs well after her field work was over, Dunham created her choreographic reconstruc tions of what she recalled of her ethnographic field work, not as strictly doc umentary material but as artistic and hybridized transformations, glamourized wit h all the staging effe cts of Hollywood sophistication, inclusive of fashionable cost umes and trendsetting hats. It is important 198 Ibid. 199 Ibid., 207. 200 Library of Congress. Katherine Dunham Timeline, 10.
199 to note that whereas she was burdened by t he requirement of pr oving authenticity, Martha Graham was not. As Vv A. Clark astutely observes: Many [critics] expected Dunham to represent Caribbean regional dances in documentary form. When she did not do so, she was chided for stylizing authentic dance fo rms. Criticism of this kind is irrelevant, because it fails to understand that Caribbean dance has been stylized and transformed throughout history. More important, stylization has been a tradition in American modern dance since its inception. Note, however, that other moderns were not criticized when they visualized milieu de mmoire that no longer exis ted (e.g., Martha Grahams Primitive Mysteries ) or that never possessed a dance tradition (e.g., Helen Tamiriss Negro Spiritual ).201 There is one final anecdote that reveal s Dunhams savviness, either eerily prescient of the legal skirmishes over ownersh ip of intellectual property rights over choreographic works that re sulted from Grahams death, which extended from 2000 and ended in 2006 (the same year Dunham pass ed away), or her awareness of the undercurrents in the dance world with respect to the competitive relationship between the Martha Graham School/F oundation and the Martha Graham Center. Concerned about the future of Dunhams legacy, D unhams own advocates, Marta Vega, the founder of the Caribbean Cultural Center in New York; Vv Clark, an art historian; and Richard Long, a dance historian, collaborated on initiating a series of meetings about trying to set up an endowment and attract priv ate funding; they proposed setting up an organizational barrier separ ating Dunhams personal welf are and artistic agenda from the more institutional, programmatic elem ents, such as the operation of Dunham programs.202 In Fall, 1999, the Caribbean Cultural Center spearheaded a set of 201 Vv A. Clark, Performing the Memory of Diffe rence in Afro-Caribbean Dance: Katherine Dunhams Choreography, 1938-1987, in Kaiso! Writings By and About Katherine Dunham eds. Vv A. Clark and Sara E. Johnson (Madison, WI: Univer sity of Wisconsin Press, 2005), 324. 202 Aschenbrenner, Dancing a Life 230.
200 meetings designed to identify and render mo re accessible information on the Dunham Technique, either from existing film f ootage, photographs, music, reviews, designs, stage directions and notes, and even project ed documentation through interviews with living Dunham company members.203 Despite the overwhelming support and t he successful search for foundation funding to preserve Dunhams legacy, to be administered thr ough the Library of Congress, Dunham refused to sign away he r rights to all her choreography, writings and other materials,204 resulting in the awar d remaining in limbo.205 Nevertheless, despite Dunhams initial reservations, in 2000, after the Danc e Heritage Foundation named Dunham one of Americas Irreplaceabl e Dance Treasures, the Library of Congress received $1 million from the Doris Duke Charitable Foundation to undertake the Katherine Dunham Legacy Project and in 2002, the Library of Congress began the process of creating a comprehensive record of the Dunham Technique.206 Thankfully, no similar legal skirmishes between Dunham s estate and the Library of Congress erupted over ownership of her choreographic works or associ ated intellectual property, such as set design or costumes, as had occurred between the Graham School/Foundation and the Grah am Center. Again, this may be attributable to Dunhams savviness in navigating the intric acies of a system t hat simultaneously allowed her some access to whiteness as st atus property, but denying her full access, unlike Graham, who had presumed full and eternal access. 203 Ibid. 204 Ibid. 205 Ibid. 206 Library of Congress. Katherine Dunham Timeline, 14.
201 CHAPTER VI CONCLUSIONS: QUO VADIS? Summary of Findings This thesis has illustrated how the effort to win copyright protection for modern dance in the United States, during the turn of the 19th century to about 2006, just as choreography was becoming a federally copy rightable category, was a simultaneously racialized and gendered contest. Copyright and choreography, particularly as tied with whiteness, have a complex history, and not one reducible to simple binaries. I began with an introductory chapter wher e I reviewed relevant literature and differentiated this study from parallel studies, dealing with si milar issues. I closed that introductory chapter with a review of di fferent reasons why choreography has been difficult to copyright and with a quick sketch of the parameters of this study. In Chapter II, I began with a simple binary, opposing an aesthetic of whiteness and nonwhiteness only because it is analytically useful to start this way; it is not meant as a totalizing schema but as a simple heuristi c, meant to be problematized and even exploded by more detailed and nuanced anal yses, some of which I did in the succeeding chapters. To under stand how whiteness is a p roperty as much as an aesthetic, one must plot, to the extent one can, how system s function to produce these differences, in operation. Briefly summarizing the findings of Chapter II, ballet, as the paradigm template of a white aesthetic in American dance, displays many of the characteristics Richard Dyer obser ved in film. For example, hi erarchy, virtue, rationality, linearity, heterosexuality, and non-corporealit y are crucial components of ballet, as a whitened dance form. In Balanchines work one can find traces of the same kind of
202 whitened aesthetic that seems to authorize him as America s premier guardian of these traditions in dance. To understand what a non-white aesthet ic is in American dance, I think one must return to the most fundam ental distinctions in American culture, which, in dance as an art form, still remains at the culturally imagined binary between black (Africanist) versus white (European) culture. Legally, of course, within the U.S., this dichotomy finds moorings in the one-drop rule: that one drop of black blood, no matter how light (or close to white) ones complexion is, is suff icient to classify a miscegenated child as blackthat is, as property, or later, as someone different to enough to treat as essentially a separate species. Choreograph ically, especially in modern dance, this white black dichotomy has meant appropr iating key characteristics of non-white aesthetics, or even venerating these alleged mythic primal or primitive qualities, while still denigrating or treating with patroni zing condescension the real people and cultures that generated these aesthetics. I adopted Cynthia Jean Cohen Bulls1 description of traditional Ghanaian dance as ballets counterpoint, not because as I see it as literally exhaus ting the pluripotential modes of representation possible in trying to imagine ballets oth er(s) but rather because I see a pragmatic, heuristic value in a ttempting to sketch a radical opposition to ballet: one (even if theoretically) imaginativel y unfettered from the trauma and history of slavery, attempting to reach back into deep Af rican rootsa project that resembles, to Adapted with permission from Picart, Caroline Joan S. A Tango between Copyright and Critical Race Theory: Whiteness as Status Property in Balanchine s Ballets, Fullers Serpentine Dance and Grahams Modern Dances. Cardozo Journal of Law and Gender 18, No. 3 (Spring 2012): 685 -725. 1 Cynthia Jean Cohen Bull (a.k.a. Cynthia Novack) pioneered the ethnographic analysis of dance through her book, Sharing the Dance: Contact Improvisation and American Culture (Madison, WI: University of Wisconsin Press, 1990).
203 some extent, Katherine Dunhams project of fusing ethnographic field practice with choreographed and costumed st aging as we saw in Chapter IV. I chose Cohen Bulls description of Ghanaian dance (even if one c an quarrel with specific details) largely because contrasts, using Cohen Bulls schem a, can readily be drawn between it and ballet, opening up new body vocabularies, new wa ys of configuring the relationship between performer and audience, new ways of thinking about bodies in relation to dance movement. Thus, briefly summarizing some key poi nts in Chapter II, ballet, embodying a whitened aesthetic, is European in its origins; emphasizes the primacy of the visual sense especially through cultivat ing vertical lines kinaesthetically expressed through an elevated torso and upright spine; subordinates movement to music; has strict ideals concerning the dimensions of physical bodie s related in a strict heterosexual economy of roles; and reflects the class-consciousness of its origins through its use of the turnout of the hips, legs and t oes to maximize specularity for those in the audience privileged enough to occupy the position fo rmerly occupied by the monarchnow the theatre box. In contrast, Ghanaian dance, as described by Cohen Bull, is Africanist; emphasizes the primacy of hearing through t he polyrhythmic movement that isolates the upper body from the lower body; does not necessarily limit the ideal of bodies to literally young and nubile bodies or designate a strict heteros exual distribution of lines (while distinguishing between masculine and f eminine movement); and in her view, allows a porousness in inte raction between performer and audience through the use of a circular spatial configurati on, centered around the drummers.
204 Having established a rough schema of what I mean by a white aesthetic versus a non-white aesthetic, I sustain a brief genealogy of a white aesthetic in American Dance in relation to Loe Fullers (Chapter II I.A), George Balanchines (Chapter IV) and Martha Grahams (Chapter V. A) portraits as pioneers of American dance. I focus on major figures in American dance history becaus e this is the way copyright history, through case law, creates an implicit hist ory concerning choreography as a federally copyrightable categoryand it is no acciden t that in all these landmark cases, whiteness is a factor, both as status proper ty and as an aesthetic. In focusing on how landmark cases are rooted in the cultural and artistic framew orks of their specific time frames, I sketch the outlines of how whiteness as property has evolved in the complex relationships binding copyright and choreography. For example, in the case of Loe Fuller, she initially st ruggled to create an identity for herself as the creator of the skirt dance and to gain adequate financial compensation through the suit she raised against one of her competitors and imitators, Bemis.2 Simultaneously, Fuller also had to fill a vari ety of roles, in addition to choreographer and dancer; she created her own costumes, des igned and patented the lights, planned the staging of the movements onstage, did her own self-promotions.3 Fuller attempted to gain copyright protection, only to have her work dismissed as mere spectacle, devoid of any moral purpose that coul d further science or the arts.4 Even if the interplay between sex, gender and class tr umped whiteness in her case, she did partake in the advantages of whiteness as status property, es pecially in stark cont rast to Josephine 2 Fuller, Fifteen Years of a Dancers Life 27-28. 3 Ibid., 61, 20-21. 4 Fuller v. Bemis, 50 F. 926, 929 (C.C.S.D.N.Y. 1892).
205 Baker, who was her successor, as the B lack Venus, (as opposed to Fuller being the Goddess of Light) in Europe. I will retu rn to an analysis of Josephine Bakers significance to this project in relation to my discussion of two differ ent types of non-white aesthetics that contemporaneously existed du ring the time periods in which Fuller, Balanchine and Graham were actively forgin g their own choreographic forms a little later in this discussion. Continuing with the thread of a white aest hetic enshrined in the paradigm cases of American copyright law in relati on to choreography, compared with Fuller, Balanchine, with his classical Russian trai ning, had the financial support of Kerstein,5 and as such, skipped over many of the st eps Fuller struggled through, to gain reputability and comparative financial stability.6 From the start of hi s move to America in 1933, Balanchine had a school of pliant y oung dancers whose flesh and spirits he could shape to his choreographic designs without f ear of them becoming his competitors,7 and a support staff who could take care of the other production-related tasks, such as lighting, costuming and publicity.8 In addition, ballet, unlike skirt dancing, had a longestablished tradition of being a dance form of the higher classes, regarded as a classic 5 Taper, Balanchine: A Biography, 152. 6 Krystina Lopez de Quintana posits that copyright law often proves ineffective in protecting lesser-known choreographers (unlike Balanchine) who dont have the fi nancial backing or time that large companies. Krystina Lopez de Quintana, The Balancing Act: How Copyright and Customary Practices Protect Large Dance Companies Over Pioneering Choreographers, Villanova Sports and Entertainment Law Journal 11 (2004): 152. 7 Taper, Balanchine: A Biography, 13. 8 Barbara Horgan, Balanchines personal assistan t, managed many pragmatic tasks, freeing Balanchine to pursue his choreographic passion. Ibid., 329.
206 art form.9 Ballet, unlike skirt dancing, also had a long-established tradition of having a dominant, tyrannical male ballet-master, which further cemented Balanchines authoritative position.10 Thus, it hardly surprising t hat buttressed by his unquestioned possession of status property of white (male) privilege, eviden ced in the very rhetorical patterns used by the court to buttress its findings in Horgan II, that Balanchines estate maintained effective control of all intellect ual property rightseven those in a different media--in relation to his choreographic works. In comparison to Balanchine, Martha Gr aham, partly because of the force of her personality, probably exercised as much c ontrol over her dancers, both male and female, as Balanchine did.11 And even as she surrounded her self with the antithesis of Balanchines hyper-whitened hyper-feminized ideal (i.e., non-professional ballerinas,12 and non-white dancers),13 her dances were designed to showcase her stardom as a white woman choreographera wom an who could do her own work.14 And even as she costumed herself in the look of the e xotic, her dances were always premised on her recognizability as the Martha Gr ahama white woman masking herself as 9 J.E. Crawford Flitch characterized the skirt dance as a compromise between the overly academic ballet of the time and the more outrageous step-kick dancing, such as the can-can . Flitch, Modern Dancing 72. 10 For descriptions of Balanchine s authoritativeness, see Taper, Balanchine: A Biography, 23. 11 For examples of how much control Graham had over her dancers, see McDonagh, Martha Graham 224-25. 12 Grahams first students, when she had broken away from the Denishawn Company, were secretaries, salesclerks, waitresses and artists models by day. Freedman, Martha Graham 50. 13 Encyclopedia of World Biography. Katherine Dunham. 14 Graham, Blood Memory 110.
207 exotic.15 Graham appears to have turned to the exotic because she could never be the hyper-whitened beauty her idol, Ruth St. Denis, was;16 unable to compete for stardom on those terms, Graham turned to its opposite, to forge her own artistic identity.17 At the heart of her choreography thus st ill lies a frustrated longing to be what she cannot be, which is essentially still Bala nchines ideal, even if costumed in the exotic trappings of St. Denis dances.18 Nevertheless, for all Grahams (popularly acclaimed) genius, when it came down to deciding who maintained control over her choreographic pieces, in contra st with Balanchine, the Cour t (in specific, the Second Circuit) decided that because of the work for hire doctrine, that Graham was simply an employee and her choreographic pieces were mere works for hire, whose ownership she had contracted away in exchange for funding and financial stability.19 Even if sex again appeared to have trum ped whiteness in her case (as the court, in Martha Graham School v. Martha Graham Center (2d Cir. 2004)) never rose to the rhetorical honorifics as it did in Horgan v. Macmillan ), the fact that she was able to initially pass on her choreographic works to her estate, taking adv antage of the same provision in the 1976 Copyright amendments as Balanchine did, a ttests to her possession of whiteness as status property, even if refractorily so. 15 See, for example, Martha as the central figure, dressed completely in white, surrounded by twelve women in blue in Primitive Mysteries Freedman, Martha Graham 68-69. 16 For the depth of adoration Graham had for St. Denis, see McDonagh, Martha Graham 126. 17 As Ted Shawn observed, Graham was not the Northern European, peaches-and-cream blonde, and her high cheekbones made her exotic. Ibid., 26. 18 For a description of St. Denis performance that convinced Graham that her fate was sealed. [She] couldnt wait to learn to dance as t he goddess [St. Denis] did. See Freedman, Martha Graham 21-22. 19 Martha Graham Sch. & Dance Found., Inc. v. Ma rtha Graham Ctr. of Contemporary Dance, Inc.,380 F.3d 624, 628 (2d Cir. 2004).
208 This is not to say Balanchine did not undergo difficulty; his life appears to have been composed of successive seasons of feast and famine, with ballet companies ephemerally rising and expiring around him.20 Balanchine, unlike Fuller and Graham, lived for the present and was not bothered by the thought of his ballets passing into obscurity, much like beautiful butterflies that were spectacular at the height of their glory, but swiftly passed away. In contra st, Fullers and Grahams every act seemed focused on creating a memorial for themselves that would withstand the test of time. In particular, Fullers savviness in negotiating legal hurdles (even submitting a detailed description of the skirt dance in her failed in fringement claim), ironically, did nothing to ensure her success at acquiring copyright protection.21 Neither did Grahams hardearned status as a genius (c omparable to Picasso and Wagner)22in the media and popular culture, but not in t he courts statements (unlike Balanchine), protect Graham from being relegated to the st atus of an employee when it came to deciding who had control of her choreographi c works, past her death.23 Given these differences in personality, it is ironic that it is Balanchine who succeeded where Fuller failed, in acquiring copyright protection, and where Graham failed, in maintaining control over her c horeographic creations. Nevertheless, Fuller, Balanchine and Graham were stars, and part of the creation of their celebrity was their integration of a hyper-whit ened aesthetic into their choreography. Fuller accomplished 20 For example, for an account of the failure of Bal anchines collaboration with the Metropolitan Opera in March, 1938, see Taper, Balanchine: A Biography, 175. 21 See Fuller v. Bemis, 50 F. 926, 929 (C.C.S.D.N.Y. 1892). 22 See De Mille, Martha vii-viii, note 194. 23 See Graham II, 380 F.3d at 639-40.
209 this through making her less-than-perfect body invisible, through the use of extended wooden wands, yards and yards of wh ite silk, and the magic of lights.24 Balanchine accomplished the same task through hyper-di sciplining his dancers bodies, whom he carefully chose, to become the vessels of his artistic ideal: the em bodiments of the all too Romantic vision of the feminine-as-eter nally-fleeing; young women chiseled down to such thinness so as to become virtually ev anescent; marble princesses, with skins like peeled apples, devoid of aging and infi rmity. Graham accomplished this through appropriating unto herself various forms of the exotic (ancient Greek, Egyptian, NativeAmerican) and surrounding herself with non-standard bodies, including black and Asian dancers,25 while maintaining her status as a white woman choreographer. While Fuller produced no heir and until recently, wa s not recognized as a pioneer of modern dance, Balanchines and Grahams cultural legacies are now very well entrenched. However, where Grahams estate lost control of most of her ballets, Balanchines estate not only commands the royalties to chor eographic productions licensed to 150 ballet companies worldwide,26 but now also possesses the tradem arks of Balanchines style and technique and even his name.27 To be able to perform a ballet, a company representative has to have a consultation wit h the particular ballets legatee concerning consent, terms, who should be recommended to do the staging, and any other special conditions; if the recommended stager does not think the company can do the work 24 For an example of an ecstatic review of Fullers surreal performances, see Sperling, Loe Fullers Serpentine Dance, 53. 25 Freedman, Martha Graham 112. 26 Taper, Balanchine: A Biography, 409. 27 Ibid., 410.
210 justice, the company will not acqu ire the license to perform it.28 Finally, so uncontested is Balanchines estates control over his choreography and even name that it now can also compel companies who perform Balanc hines ballets to include a trademark and licensing notice in their programs.29 Crucial to that establis hment of absolute control over his choreographic creations were Balanc hines aesthetic pursuit to an ideal of hyper-feminized whiteness and his confident possession of (masculine and male) whiteness as status property Although both Fuller and Gr aham had some access to whiteness as status property their stories, as wom en choreographers, are more complex. My task for the remainder of this su mmary of findings focuses on comparing concrete examples of two distinct histor ically grounded non-white aes thetic possibilities glimpsed through the examples of Josephi ne Baker and Katherine Dunham. Again, gender imbricates with race in this cultural imagination of a white versus a non-white dance aesthetic, much as postcolonial imaginings of a primitivist and exotic other (in the case of Baker, and to a more limited ex tent, Dunham), refracted through the prisms of stardom and image-making, form a comp lex narrative. An additional layer of nuancing appears to be how comparatively darkly complected Baker was (or in Dunhams case, how lightly complected s he was), and how closely both embodied (and deconstructed) the colonial fant asy of the Black Venus. In both cases, as international superstars, both women had some access to wh iteness as status property; but both did 28 Ibid. 29 Ibid.
211 not have the extent of access as their white female predecessors or counterparts, Fuller and Graham. Baker stepped into a series of historical convergences that iconized her as the Ebony Venus, the Black Venus, the Ja zz Empress, and the ve ry embodiment of Black Womanhood.30 In compliance with the image proj ected on her by her promoters and audiences, Baker employed five perform ative strategies of image and identity construction, which included: exoticizing race and gender; overturning racial and cultural codes and meanings; performing difference through nudity, cross-dressing, song, and dance; exploiting these images of difference; and generalizing the out come to allow the performative messages to reach larger popular audiences.31 In order to remain the sameas an exotic sexua lized object of fascination Baker would have to constantly remake herse lf. And a key component to Bakers many transformations is her consistent whitening as a wild child civilized into Parisienne culture. This process of transformation took place both personally and professionally, as Baker moved from being a body acted upon, to becoming a specular projection of the star system. Choreographi cally, the roots of the aut hentic Africanist dance style Europe venerated were African-American street dances magnified through Bakers hyperbolic and flambuoyant exag gerations. More precisely, they lay in Bakers 30 For an example of how Baker, like Fuller, electrified many of Paris artists and intellectuals, see Paul Colins Art Deco lithographs in Colin, Josephine Baker and La Revue Ngre. 31 Jules-Rosette, Josephine Baker 49.
212 spontaneous improvisational reinterpreta tions of popular American street dance steps.32 In some ways, Bakers case parallels Fu llers: both rose from American working class origins, were principally self-taught and yet managed to capture the European imagination as artistic GoddessesFulle r as an icon of light and ethereality,33 Baker as an idol of non-whiteness and hypersexualized embodiment. But whereas Fuller managed to achieve patents in her name for her inventions for her staged productions,34 there are no such documents attesting to Bakers ownership of her intellectual property. Although Fuller pr eceded Baker by several decades, there is no indication that Baker ever attempted to demarcate the ar tifacts and traces of her artistry as her personal property the way Fuller had done, using the legal system,35 through both Fullers successful patent applications and her unsuccessful bid to claim ownership over the Serpentine Dance through copyright. But in terms of choreographic legal protection, like Fuller, Bakers claim to owner ship of her choreographi c improvisations, if she had dared to mount such a claim, woul d have failed, not simply because it would probably have been dismissed, like Fu llers claim, as pure spectacle36 but also because, given her performances overt erotic ism and closeness to vaudeville traditions and popular dance steps, her claim would probably also have been roundly dismissed 32 For an extended account of how Baker repeat edly abandoned choreography and chose improvisation on the spot, thus often driving the orchestra (and so metimes the lighting crew) to follow her lead, see Papich, Remembering Josephine 61. 33 See Kraut, White Womanhood, 3. 34 See Albright, Traces of Light 185. 35 See Fuller v. Bemis, 50 F. 926 (C.C.S.D.N.Y. 1892). 36 Fuller v. Bemis, 50 F. 926, 929 (C.C.S.D.N.Y. 1892).
213 as obscene,37 lacking originality, and not promo ting the advancement of science and the useful arts, which is the principal obj ective of patent and copyright protection.38 In comparison with Baker, Dunhams rise to celebrity coincided with Bakers decline as the embodiment of the erotic and primal s avage and Martha Grahams (among other white women) depl oyment of a then-pr incipally sexless model of modern dancing (i.e., prior to her invo lvement with Erick Hawkins). In the face of these preexisting and often stereotyped and racialized templates, Dunham was noteworthy in her self-proclaimed project of integrating A frican dance traditions that featured more forthright acceptance of sexual elements in dance.39 And indeed, Dunhams chor eography and dance technique not only incorporated the whitened (and establis hed) elements of ballet and modern dance, but also a vocabulary of movement that had clear non-whitened elements, derived from her memory of her fieldwork as an anthropologist in the West Indies (Jamaica, Trinidad, Cuba, Haiti, Martinique).40 Dunhams dance technique comes closest to the theoretical model, built on Cohen Bulls characteriza tion of Ghanaian danc e, of a non-white aesthetic I schematized in Chapter II, but hybridizes it with white elements, which, like her academic credentials, served to authorize her work, particularly in Europe. The technique she developed emphasized the torso movements of the pr imitive ritual of Caribbean-African dance and jazz rhythms.41 37 Martinetti v. Maguire, 16 F. Cas. 920 (C.C.Cal 1867); Barnes v. Miner, 122 F. 480 (C.C.S.D.N.Y. 1903); Dane v. M. & H. Co., 136 U.S.P.Q. 426 (N.Y. 1963). 38 U.S. Const. art. I, § 8, cl. 8. 39 Foulkes, Modern Bodies 72. 40 Sommer, Free to Dance. 41 Barzel, Turbyfill and Page, The Lost Ten Years, 179.
214 Though Dunham self-identified herself as black, and declared a social activist impetus to her work,42 Dunham was clearly of a mixed racial heritage, and her own autobiography emphasized that hybridity. In addition Dunhams combination of academic credentials of the highest caliber, her practical fieldwork experience, and her visually arresting reinterpretation of et hnographic experience into choreographic staging yielded refractory responses from the dance world, critics and the public. Nevertheless, unlike Baker, Dunham was portrayed as someone with both sophistication and eloquence, as well as the exotic primitivism Ba ker had come to symbolize. The fact that Dunhams second husband, John Pratt the man who costum ed her was also white, probably helped to further whiten D unham, which worked to her unambiguous advantage in Europe but elicited more ambi valent responses in the U.S. Choreographically, Dunham is notable for incorporating not only folkloric material derived from a broad variety of exoti c sources, but also the familiar streetderived U.S. social dance steps characterist ic of African-Americ an entertainers that Baker surreptitiously drew fr om and exaggerated, ei ther comedically or sensually. But despite Dunhams eclecticism, Dunham did privilege the Caribbean as the ethnographic cradle from which she sought to discover and rearticulate a basic vocabulary that seemed, to her, to be co mmon to African-derived danc es in the U.S. Dunham cemented her career and reputation through wh at she called revues staging her re-memory of her anthropolog ical experiences and Caribbean dance and music together with the lush settings, plush cost umes, orchestral reinterpretations of the 42 Katherine Dunham, quoted by Harriet Ja ckson in American Dancer, Negro, Dance Magazine (September 1966): 40. This same inform ation is stated in Dunhams autobiography, A Touch of Innocence: Memoirs of Childhood (Chicago: University of Chicago Press, 1994).
215 Caribbean rhythms and folk music, and the po lished look of American showbiz. But it was only after she was already established that Dunham collaborated with Balanchine on Cabin in the Sky (1940). Ironically, t he 1940 Broadway production of Cabin in the Sky did not give Dunham any credit as a choreographer. 43 Nevertheless, in Dunhams extended interview with Constance Valis Hall conducted on November 1999 and January 2000, Dunham revealed, after much prodding, that Dunham not only choreographed most, if not all, of the numbers, but also, as Aschenbrenner remarks, t hat she staged most of the show, although she was not given credit for it.44 Nevertheless, it is clear that Dunhams credentials as an academic, her glamourized image, and the very manner in whic h she staged her ethnographic research as performances, did privilege and protect her to some extent. There appears to be an anxiety that repeat edly surfaces in relation to both white and black American critics rec eption of Dunhams work: the question of authenticity, as her work, her image, and even her l ooks, seemed whitened, compared to, for example, Pearl Primus, who pursued similar goals and scholarly interests as Dunham in the 1940s, but who did not have Dunhams numerous liminalities, inclusive of her looks, which conformed more to whitened standards of beauty, as opposed to Primus physical appearance. In relation to this question of authenticity, D unhams choreographic interpretation of her ethnographic research has also undergone some critique as being overly reliant on hybridizat ion, losing specificity, and perhaps even stereotyping Caribbean culture in general. Contrastivel y, in the hands of someone like Martha 43 Valis Hill, Collaborating with Balanchine, 235. 44 Aschenbrenner, Dancing a Life 125.
216 Graham or George Balanchine, even if devoid of the intense ethnog raphic field work Dunham had accomplished, such inappropria te cultural appropria tion would probably have been interpreted as artistic innovat ion, passing copyrights modicum of originality test easily. Additionally, given that D unhams ethnographic work drew principally from folklore (and from non-American sources) would probably have made any kind of possible copyright claim inva lid. But that Dunham wisely used the established kinaesthetic techniques and body vocabularies of ballet and modern dance would probably have made any claim she mi ght have raised, especially given the circumstances of Cabin in the Sky more likely to survive. But given the raced, sexed, and gendered nature of the politi cs of the dance world, Dunham wisely refrained; that savviness is what eventually cemented her commercial success and artistic independence. Like Baker, Dunham, instead of banking on copyright protection, relied on her ability to curate her image th rough the numerous interviews she gave the media. But unlike Baker, Dunham did have some access even if not full access to whiteness as status property, and as such, was able to achieve some acclaim as a choreographer in her own rightbut only afte r loyal apprenticeship to the ballet master and legally and culturally ens hrined genius, Balanchine. Quo Vadis: A Postscript In retrospect, it is hardly surprising that few choreographers have achieved the degree of legal protection Balanchine (and his heirs) have.45 The requirements for gaining copyright protection, and especially for the fixation require ment, are both time45 For an analysis of the scope of protection given to choreography under the 1976 Act, and its uncertainties, see Kathleen Anne Fisher, The Copyrigh t in Choreographic Works: A Technical Analysis of the Copyright Act of 1976, Copyright Law Symposium 31(1984); Traylor, Choreography, Pantomime.
217 consuming and expensive. Yet the issue of delimiting the copyrightable from the noncopyrightable remains a vexatious question especially given that the 1976 Copyright Act, section 450.03(a) which Horgan II cited, specifically excludes social dance steps and simple routines from copyright protection.46 Congress declined to provide a definition, a supplementary ex planation or even any policy c onsideration justifying the distinction.47 Thus, one is left to speculate on the policy reasons behind the exclusion. First, perhaps the House Committee was tryi ng to draw a bright line between dancing done in private, for individual enjoymen t, and dancing performed for the public, for profit.48 Second, perhaps the Committee on the Judi ciary viewed social dance steps as not meeting the minimum standard of creat ivity required for copyright protection.49 Either way, the distinction betwe en mere social dance steps (noncopyrightable) and original dance (copyrighted) is problematic given that, for example, many of the steps used by Fred Astaire and Ginger Rogers (and many other musicals) were based on social dance,50 such as the foxtrot and walt z. To characterize such dances as lacking creativity seems anomalou s with the times. The waltz and foxtrot would probably not meet much opposition as copyrightable partly because they occupy the same hyper-whitened aesthetic real m as Balanchines ballets did, when they moved from the public domain into the prot ected sphere of the copyrightable; one of 46 Horgan v. MacMillan, Inc., 789F.2d 157, 161 (2d. Cir. 1986). 47 See, e.g., H.R. Rep. No. 94-1476, at 53 (1976). 48 For a related analysis, see Robert Freedman, I s Choreography Copyrightab le?: A Study of the American and English Legal Interpretations of Drama, Duquesne Law Review 2 (1963-1964): 78. 49 For an analysis of what creativity entails, in rela tion to copyright protection, see Fisher, The Copyright in Choreographic Works, 149-51. 50 See generally Fred Astaire, Steps in Time (New York: Harper & Bros., 1959).
218 Balanchines ballets was specifically choreo graphed to include the l ook of the Viennese Waltz. The waltz, having well establis hed European roots, and th e foxtrot, a dance of white, upper-class Americans, combined wit h glamorous sheen of Fred Astaire and Ginger Rogers legendary stardom, easily meet the requirements necessary for whiteness as status property, fr om their very inception. But it is the non-white ballroom dance fo rms that have resisted the aesthetic of whiteness, whose copyrightability might be problematic. Though this is beyond the scope of this thesis, some scholarly wo rk has already been done, showing how the Latin dances (such as the rumba, the sals a, and the mambo), in their competitive ballroom forms, have actually been racia lly stereotyped to be performed as the hypersexualized, Orientalized Other of their European-based counterparts.51 The degree of performance of non-wh iteness requires the tanning or chemical burning of white skin in order to make white skin authentic enough to pass as non-white (while being recognized as white/privileged),52 as ballroom competiti ons are still predominantly patronized by, and competed in especially in the proam (professional-amateur) division, by white, upper class elites. In addition, other sc holars have done nuanced postcolonial studies of the ethni c roots of the whitened Latin ballroom forms, such as the tango. Robert Farris Thompson, for example, persuasively argues, using a historical and choreographic anal ysis, that the strongest root in the original Argentine 51 Picart, From Ballroom to DanceSport 93-94. See generally, Marta Savigliano, Tango and the Political Economy of Passion (Boulder, CO: Westview, 1995); Juliet E. Mc Mains, Brownface: Representations of Latin-ness in DanceSport, Dance Research Journal 33, no. 2 (Winter 2001): 59. 52 Caroline Joan (Kay) Picart, Beyond Dancing with the Stars : Sexual Sports Rhetoric in Competitive Ballroom Dance, in Sexual Sports Rhetoric: Global and Universal Contexts ed. Linda K. Fuller (New York: Peter Lang, 2010), 57, 61.
219 tango is Kongo-style dancing, as elaborated in black danc ing groups called candombes that also existed in black Uruguay.53 Thus far, I have been unable to uncover a suit of copyright infringement involving specifically ballroom choreography. It could be that ballroom choreographers are not as concerned about seeking copyright protection especially with the explosion of popular modes of entertainment like Dancing with the Stars and the possibility of seeking legal protection through other mechani sms, such as trademark law. It may, in fact, be advantageous that ballroom dance choreography remain in the public domain, given the costs and complexities of fixation, the effo rt it takes to protect choreography from infringement, and the pace of choreographic evolution th at becomes possible with material remaining in the public domain. It is also worth noting that in Dancing with the Stars the most commercially successful televi sion format to feature ballroom dance, the celebrity of ballroom champions, in the U. S., is still eclipsed by and parasitic upon, catering to the stardom of it s amateur clientele. But it could also be that, much as ballrooms transformation from being a soci al pastime into an Olympic sport has achieved mixed gains, ballroom dance has not sufficiently moved from the modern day equivalent of the burlesque, the merely entertaining, to become whitened enough to become art, and thus, worthy of copyright protection. And certainly, there are areas in wh ich this study can be improved and expanded. The initia l rough heuristic setting up a white aesthetic versus a non-white aesthetic could be expanded to become less a binary, thus better reflecting 53 Robert Farris Thompson, Tango: The Art History of Love (New York: Vintage, 2005), 8.
220 contemporary choreogr aphic possibilities.54 Further research can be done to nuance Cohen Bulls characterization of Ghanaian da nce. As Kariamu Welsh-Asante points out that there are litera lly thousands of African-centered aest hetics that exist in the world, perhaps a more productive avenue of analysis would be the attempt to describe what the issues and characteristic terms of an Afrocentric aesthetic might be.55 To limit the paramaters of this thesis, th is study has remained focused on the white black divide because legally, that is the impor tant criterion to keep in mi nd, but certainly, the notion of what a non-white aesthetic is should expand to include, fo r example, Hispanic, Indian, and Asian and other elem ents, as these were part of the choreographic palette, culturally, even if they were not acknowledged legally. Certai nly, colorism as well as color casting, remain very much part of the balletic dance world.56 Furthermore, further excavations could be done, such as an exami nation of the legacies of Isadora Duncan and Ruth St. Denis, who chronologically fo llowed Fuller but preceded Graham, drawn against the evolving relationships bindi ng whiteness, choreography, and copyright. Additionally, further studies, this time c harting the intersections between masculinities, sexualities and race, would deep en the analytic potential of th is study. Certainly, one could easily analyze, for example, the chore ographic innovations of Ted Shawn, Merce Cunningham, Arthur Miller and Alvin Ailey, and perform a parallel genealogy on how gender, race and sexuality, this time tracked on to masculinities and male bodies, are 54 For a rough analogue in film, see generally Ella Shohat and Robert Stam, Unthinking Eurocentrism: Multiculturalism and the Media (London and New York: Routledge, 1994). For a general review of literature in relation to global dance and postcol onial ethnography, see Susan A. Reed, The Politics and Poetics of Dance, Annual Review of Anthropology 27 (1998): 503-32. 55 Kariamu Welsh-Asante, The Aesthetic Conceptualization of Nzuri, in The African Aesthetic: Keeper of the Traditions ed. Kariamu Welsh-Asante (Westport, CT: Greenwood Press, 1993), 1. 56 Nyama McCarthy-Brown, Dancing in the Margins: Experiences of African American Ballerinas, Journal of African American Studies 15 (2011): 385-408.
221 culturally and legally interpreted in rela tion to copyrights aims of promoting the progress of arts, would be inst ructive. Furthermore, it is noteworthy that all the figures discussed in this thesis experimented in film in some way, some in more avante garde formats (Fuller), some us ing some initially docum entary footage (Dunham) but the majority in more mainstream, Hollywood-rela ted venues; it would be instructive to chart how the aesthetic of whiteness maps on to t he copyrightability of these films and the status and power of these figures in relati on to the films produced. Far from being the last word on this topic, this thesis is simply the beginning.
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236 BIOGRAPHICAL SKETCH Caroline Joan ("Kay") S. Picart was born in the Philippines, and has been educated in the Philippines; Cambridge, Engl and; and the U.S. Kay was the Sir Run Run Shaw Scholar and Wolfson Prize Winner (given to the top student) in history and philosophy of science at Cambridge University. She went on to finish a Ph.D. in political philosophy (with doctoral minors in aestheti cs & criticism and com parative literature) from the Pennsylvani a State University as well as a postdoctoral fellowship on jurisprudence with the Cornell School of Criticism and Theory. Prior to law school, she was a tenured professor of English and humanities, and has authored/contracted 15 books with university and scholarly presses, three of which were published or contracted, while she was a full-time la w student; she also published 25 peer-reviewed articles in scholarly journals (five whil e in law school) and 24 book chapters published by university or scholarly presses (ten while in law school). She has published articles on the Violence Against Women Act; the Tokyo IMT and issues regarding the international litigation of crimes of violence against women during war; and as well intellectual property and critic al race theory. In 2010, s he was a Florida Bar Foundation Fellow, and worked on public interest law, dealing with the rights of prisoners and underprivileged persons under t he supervision of the Flor ida Institutional Legal Services; in 2010-2011, she was an ex tern, and also completed her pro bono certification hours, with the Ga inesville State Attorney's Office, Domestic Violence Unit. From 2011-2012, she concurrently se rved as Editor-in-Chief of the Florida Journal of International Law and the Communications Executiv e and Former Articles Editor and Research Editor for the Journal of Technology Law and Policy From 2012-2013, Kay was awarded the Tybel Spiv ack Pre-Doctoral Fellowsh ip in Womens Studies, and
237 designed and taught a cour se on humanities perspecti ves on gender and sexuality, while finishing coursework for program certificates on intellectual property and international law and an M.A. in womens studies. In her spare time, as a U.S. Open Champion in ballroom dance, Kay runs a succ essful dance consultancy. But amidst all her accomplishments, what is she is most proud of is her marriage to her beloved husband, Jerry Rivera.