Copyright, Sugar Plums and Nutcrackers

By | 19 December 2014


The first performance of the Nutcracker ballet, which is now such a Christmas tradition in the US and the UK, took place at the Mariinsky Theatre in St Petersburg 122 years and one day ago, on 18 December 1892.   So what is the connection between ballet and law? Well, how about intellectual property issues? One of the most celebrated cases of this kind is probably that between Leonide Massine (whom many will have seen in the film The Red Shoes) and Colonel Wassily de Basil.

After the death of Diaghilev in 1929, his Ballets Russes company was succeeded by Ballet Russe de Monte Carlo, a company founded by de Basil and René Blum.  Following ‘artistic differences’ two peripatetic and competing Russian ballet companies emerged in 1938, one headed up by de Basil, who claimed ownership of a significant body of Massine’s works, and the other headed up by Massine himself. Disagreements over rights to the company name and to some of the ballets inevitably ensued.

The dispute between de Basil and Massine over the ownership of Massine’s ballets went to the English Court of Appeal: Massine v de Basil (1938) Macg Cop Cas (1936-45) 223, 82 Sol Jo 173.  The case is not available online, but we (naturally!) have it in hard copy in the Bodleian Law Library.

It was common ground that a ballet could be the subject of copyright as a composite work, the elements being the music, the story or libretto, the choreography or notation of the dancing, the scenery and the costumes. The parties disagreed as to whether the choreography was by itself subject to copyright, and the Court’s decision on ownership of certain of the ballets turned on the question of whether or not Massine had been a salaried servant of the defendant from 1932, the year in which he became de Basil’s principal dancer, maître de ballet and choregrapher. Massine was able to hold on to four ballets that had been performed before the date of his second written contract with de Basil (August 10 1934), but not to those first performed after that date, including, thanks to the terms of his agreement with de Basil, even some of those that he had created before that date.

Massine went one way; his ballets went another. This resulted in the bizarre situation in 1956 when Tatiana Leskova, a former de Basil company dancer, was able to revive one of those ‘lost’ ballets, Les Presages, whereas Massine himself said he could no longer remember a single step of his own work!

Meanwhile in the late 1930s Massine needed to create new ballets, and when he recruited the English dancer Alicia Markova to the Ballet Russe de Monte Carlo company he said that he wished to create distinctive modern roles for her. Because Markova was committed to this company, and under contract to the impresario Sol Hurok, she was obliged to work throughout the Second World War on the other side of the Atlantic, becoming a huge star in the United States.  Meanwhile in England the Vic-Wells Ballet promoted and developed the emerging talent of Margot Fonteyn.

Back to the Nutcracker: in 1934, Markova danced the Sugar Plum Fairy for the first time in England. In 1940, she went on to become America’s first Sugar Plum Fairy too, sowing the seeds of a new Christmas tradition on both sides of the Atlantic. Would it be too far fetched to suggest that our copyright law played a part in determining the future of both English and American ballet and in developing a new Christmas tradition in the West?

If you want to see the Nutcracker this Christmas, you could try English National Ballet  at the Coliseum.  If that is too far to travel, there are many Nutcracker video clips on YouTube, such as this one of the Royal Ballet’s Miyako Yoshida.

Posted by Margaret Watson

Twitter: @MargaretLawBod and @maggiemwatson