The modernist choreographer Merce Cunningham, who died July 26 at age 90, was always ahead of his time. He was even ahead of his own departure from this world, announcing in June his wishes for the sequel to his life. "Merce was an artistic maverick and the gentlest of geniuses," says Judith R. Fishman, chairman of the Cunningham Dance Foundation, which is charged with carrying out his instructions, including a world tour by his dance company, ending in a New York performance with all tickets only $10.
His vision was always a combination of the very explicit (his choreographed movements) and the open-ended (numerous collaborative elements). In his piece "Split Sides," for example, an onstage roll of the dice determines all elements at each performance. Only then do dancers discover the costumes, set, lighting, and score. They leap about barefoot, their movements almost autonomous, like leaves swirling in the wind. Thirty-two different combinations are possible, reflecting Cunningham's embrace of chance.
Yet, in a press conference held in Cunningham's dance studio shortly before his death, Fishman announced, "The future of his life's work cannot be left to chance."
Trevor Carlson, executive director of the foundation, describes Cunningham's "precedent-setting" living legacy plan, a model for other cultural groups "transitioning to a post-founder existence."
"Merce's career," Mr. Carlson adds, was "distinguished by a constant desire to expand creative boundaries and explore new ideas." Bravely confronting the ultimate boundary – his mortality – the man called the world's greatest living choreographer designated the Merce Cunningham Trust as caretaker of the rights to his work.
Ted Striggles, an intellectual-property attorney who once danced with avant-garde choreographer Martha Graham, explains that memory of the bitter feud over the Graham estate is what propels dancers to protect their legacy, as evanescent as breathing. After Graham died in 1991, a squabble over rights to the choreography prevented performances of her work for years, with her dance company claiming "intellectual property intimidation."
Cunningham, according to board member Allan Sperling, "wanted clarity with respect to the ownership, control, and continuity of his choreography." Mr. Sperling adds, "He wanted it to be in the hands of those he trusted to carry out his philosophy and approach." The trust, which has meticulously documented his works, controls licensing of revivals. "Presumably," Sperling says, "the trustees will set standards for the way the work is performed."
Given Cunningham's stature "like a rock star, the Mick Jagger of dance," according to Joseph Melillo, executive producer at Brooklyn Academy of Music, is this plan a paradigm for artists? Will it preserve, but not petrify, a creator's work? It depends on the degree to which the intellectual-property system enhances, rather than restricts, artistic creativity.
Copyright, which extends for 70 years after an artist's death, exists to protect a creator's property rights and income. Many argue cultural content should be in the public domain sooner, available to future generations to build upon and freshen. The Creative Commons movement and advocates of open-source file-sharing warn against locking up our cultural heritage, which hampers the free exchange of ideas.
Two "safety valves" provide flexibility and protect free speech: the ability to cite facts and ideas (which cannot be copyrighted) and the notion of "fair use," which allows quoting a small portion of an original work. Parodies and "transformative" re-use are also permitted.
Some rights-holders of literary materials, like J.D. Salinger and the estates of James Joyce and Samuel Beckett, have used copyright to block creative re-use, borrowing, quoting, and reworking original material. But digital dabbling threatens to outrun the law, as sampling, mash-ups, and appropriation of copyrighted material become increasingly common.
"With the wild and woolly culture of the Internet, the attitudes toward copyright are changing," according to Mark Fowler, a New York intellectual-property attorney. "Almost anything goes," he says, as sole authorship fades into extinction.
Grethe Holby, executive artistic director of the Family Opera Initiative, a nonprofit organization that develops and produces new musicals, sees digital access as both friend and foe. "We're expected to put what we're doing on our website, Facebook, MySpace, and blogs. People expect to see videos and hear music clips." But then others can tap her work for their own purposes. "It's a Wild West right now," she says. "Sometimes that's when huge discoveries happen. There are exciting, unforeseen frontiers by it not being so codified." And, Ms. Holby adds, a website is "a huge marketing tool" to promote new work and gain funding.
New York choreographer Jane Comfort has been inhibited artistically in the past by copyright barriers. She now commissions new scores for her dances rather than attempting to use copyrighted music. "It is stultifying and difficult," she says. "The music industry and literary estates can be really tough."
It took Holby 10 years to get past Umberto Eco's gatekeepers. Once she swung a face-to-face meeting with the Italian author, he immediately granted approval to adapt his children's book, "Three Astronauts," for a new opera.
"Copyright needs to get more up-to-date with the way things are being made these days," according to Lynn Thomson, artistic director of America-in-Play, a theater group that develops new work inspired by plays in the public domain. "Copyright laws need to adjust to the fact that collaborative work is what the 21st century is about." In her group's last production, six writers shared authorship credit.
Contemporary composer Joël Durand, a professor of composition at the University of Washington in Seattle, knows composers rely on royalties for income but says, "I wish we were not so obsessively entrenched in our little discoveries." He'd like his work to be freely available since, Durand says, "Everything we do is universal in a spiritual way. It all belongs to everybody because it doesn't come from us as individuals." Works "of an aesthetic nature," he adds, are produced "in collaboration with the world, and the creator should offer it to all rather than clasp their fists around their thought for gain."
Holby, too, wonders if unfettered access might flower into "a new Renaissance with everyone inspiring everyone else."
Although the Cunningham living legacy plan aims to preserve its founder's vision intact as custodian of his intellectual property, that does not mean the choreography will be frozen forever, like an artifact of the past. As a choreographer, Cunningham always welcomed new technology and pioneered countless innovations. Collaboration, chance, and change were the very cornerstones of his approach.
Although the sun has set on his career, a new dawn inspired by his achievement may follow. "Ideas," as the artist Robert Rauschenberg, Cunningham's collaborator, said, "are not real estate."
Neither is intellectual property. It could be a site where past art is not just preserved but fertilizes future growth.
"Dancing is a process that never stops," Cunningham said when announcing his living legacy plan, "and should not stop if it is to stay alive and fresh."