Critical Race Theory and Copyright in American Dance

Whiteness as Status Property

Caroline Joan S. Picart

• Publisher: Palgrave Macmillan
• Year: 2013
• Print ISBN: 9781137321961
• eBook ISBN: 9781137321978
• Topic: Art
• Subtopic: Art General

The effort to win federal protection for dance in the United States was a racialized and gendered contest. Picart traces the evolution of choreographic works from being federally non-copyrightable to becoming a category potentially copyrightable under the 1976 Copyright Act, specifically examining Loíe Fuller, George Balanchine, and Martha Graham.

Chapter 1

Introduction: Preliminary Remarks^*

Let me start with identifying the ground (however 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: 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 outlined in an earlier book, Inside Notes from the Outside, moves among, attempting to translate across, multiple hybrid realms of being and becoming—of being perpetually both inside and outside, negotiating differences, and trying, in collaboration with others, 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. Haraway’s theories on “cyborgs”¹ (hybrid beings) as well as my own experiences.

By the late twentieth century, our time, a mythic time, we are all chimeras, theorized and fabricated 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 other’s company, I became aware of their three-year-old son’s wide-eyed gaze.

“Are you black, or are you white?” Benjamin’s adorably dark brown eyes were unblinking. He looked earnestly confused.

I was told by friends that the eminent Slavoj Žižek had asked similar questions as I stood at the podium, introducing him for Florida State University’s 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, “Oh—you mean, like Imelda Marcos?”

It is instances such as these two anecdotes that have spurred me to reflect on bodies, power, and identities. The two instances apparently resolved the question concerning my identity—that is, that I am “brown,” neither black nor white, and that I hail from the same place as Asia’s glamorous and extravagant “Iron Butterfly”—but seem inadequate as labels. Somehow, there is something about these neat categories that, in Eliot’s terms, “slip, slide, and perish . . . [and]will not stay in place.”

The politics of race, gender, and class has sparked much interest and even controversy in contemporary academic and wider public circles. The questions with which I attempt to wrestle are not particularly uncommon ones. They are issues that have loomed over anyone who has had to come to terms with concrete, pragmatic questions regarding identity and courses of action within the interacting spheres of race, gender, class, and power. The specific cast I give 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 was educated in the Philippines, England, and the United States as a biologist and philosopher; and who has traveled in Europe, Asia, and the United States as an academic, artist, US Open DanceSport² champion; and most recently, a joint Juris Doctor of law and MA Teaching Fellow in women’s 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 kinds of questions at the heart of women’s studies and gender research. 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 historical conditions that produce categories of distinction between those who are privileged and those who are not. However, Intellectual Property, and especially Copyright in relation to dance choreography in particular, for the most part, remain insulated from questions 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 copyright decisions are absolutely devoid of any aesthetic judgment and are simply based on a purely “objective” code-based evaluation, whose criteria’s historical genesis and underlying assumptions, in that particular class, remained largely unscrutinized. Perhaps it is too much to ask of an introductory class on copyright to be critical about the historical and sociopolitical moorings of something as abstract and fluid as copyright. After all, in fairness, a general law school education is geared predominantly to produce practitioners—virtual gladiators—who do not have the time or the luxury to worry about the “whys” behind the rules. All they are tested on, after three years of study, is knowledge of the rules and the ability to apply these rules—to win as many rhetorical battles as possible in the guardianship and application of these rules but 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 Intellectual Property, and especially Copyright, that seems relatively immune from sociopolitical critique, compared to, for example, Criminal Law or Property Law, where categories of race, gender, class, and sexuality are almost impossible to ignore.

What prompts this book are a number of things: first, a resurgence of interest in Loïe Fuller’s heritage as a pioneer of modern dance, as well as a continuing fascination with the details of Josephine Baker’s, George Balanchine’s, Martha Graham’s and Katherine Dunham’s lives, as evidenced by the virtual cottage industry of their biographies; second, except for, for example, Kevin Greene’s work, a lack of a sustained critical examination of connections binding copyright, choreography, and critical race theory in law-related academia. The choreographic inheritances of Fuller, Baker, Balanchine, Graham, and Dunham are important to map because these constitute crucial sites upon which negotiations on how to package bodies of choreographic works (both of the choreographer and the performer, as racialized and gendered). Such negotiations are staged, reflective of larger social, political, and cultural tensions, as revealed by the differential treatment in the reception of copyright claims.

More importantly, the study of intellectual 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, political, and cultural forces. Like all legal “innovations,” the evolution of choreographic works from being federally noncopyrightable, unless they partook of “dramatic” or “narrative” structures, to becoming a category of works potentially copyrightable under the 1976 Copyright Act, is a fascinating story. The principal historical markers that demarcate the temporal borders this book uses are the American copyright landmark cases, specifically in relation to choreographic copyright. These begin 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). The second is Horgan v. Macmillan II (1986),⁴ which established the template for what type of choreography is not only copyrightable but also fully protected from infringement. The third is Martha Graham School v. Martha Graham Center III (2006),⁵ which affirmed the findings of Martha Graham School v. Martha Graham Center II (2004),⁶ and opened up the legal possibility that choreographic works are not necessarily the intellectual property of their creator—thus loosening 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 to what is “American,” and is always and already rooted in a global context. Thus, Fuller’s attempt at seeking copyright protection in the United States has to be contextualized against her success in Paris as the “Goddess of Light.” Similarly, Balanchine’s attempt to forge a “purer” form of classical ballet, using untrained American bodies, has to be understood against the backdrop of his Russian background. Correspondingly, some of Graham’s modernist experiments have to be contextualized as responses to her travels to South America, funded by grants. Along a parallel track, Dunham’s ethno-choreography has to be analyzed in relation to her anthropological fieldwork in the Caribbean and, like Fuller and Baker, Dunham’s 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 production and presentation, and copyright protection, if protection ever even becomes 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 property—both as an aesthetic and cultural force, and eventually, a legally accepted and protected form of property. Harris argues that historically, US law has “accorded ‘holders’ of whiteness the same privileges and benefits accorded holders of other types of property.”⁷ This book is an extension of that argument, but equally important to map are gender and class, especially in relation to the star system. Thus, to enhance Harris’ characterization of “whiteness,” I also employ Kimberle Crenshaw’s “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 Nunn’s critique of Eurocentrism, as enshrined in law.⁹ There is much in Nunn’s critique of Eurocentrism that resonates with this critique of whiteness as property, especially his astute observation that “[i]t is the core cultural dynamics of Western societies that produce social structures in which male traits, material possessions and white racial characteristics are so highly privileged.”¹⁰ Finally, Richard Dyer’s work on “whiteness,” although it has been employed more for film studies, would also be of interest, because of the theatrical nature of performance dance, and its use of lighting to enhance visual illusion.¹¹ Given La Loïe’s collaborations with early film auteurs and their experiments with light and black and white film, as well as Graham’s own experiments with film, light, and shadow, Dyer’s approach has a particular relevance.¹² Similarly, Balanchine’s choreography for Goldwyn’s 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 experimentat...

Table of contents

• Cover
• Title
• 1 Introduction: Preliminary Remarks
• 2 Comparing Aesthetics of Whiteness and Nonwhiteness in Relation to American Dance
• 3 Loíe Fuller, “Goddess of Light” and Josephine Baker, “Black Venus”: Non-narrative Choreography as Mere “Spectacle”
• 4 George Balanchine, “Genius of American Dance”: Whiteness, Choreography, Copyrightability in American Dance
• 5 Martha Graham, “Picasso of American Dance,” and Katherine Dunham, “Matriarch of Black Dance”: Exoticism and Nonwhiteness in American Dance
• 6 Moving into New Directions: Cunningham and Ailey
• 7 Conclusions: Quo Vadis?
• Notes
• Bibliography
• Author’s Biography
• Index