None of the choreographer's ballets are in the public domain. The licenses for two of the works performed in Havana have expired, and the others have apparently been reconstructed from videotapes. The works: Theme and Variations, Apollo, Agon, Scotch Symphony, the Sylvia pas de deux, and the Tchaikovsky pas de deux: were performed by dancers from the Ballet Nacional de Cuba. Alicia Alonso, the director of the Ballet Nacional, is also the director of the festival.

The Ballet Nacional also performed Balanchine's Ballo della regina, which was legally licensed.

Ellen Sorrin, the director of the Balanchine Foundation, told the Times, "Cuba does not acknowledge the Geneva Conventions, so we have no control over what they might perform. If they lived anywhere else in the world, they'd have to license the ballets."

Miguel Cabrera, the Ballet Nacional's historian, countered this argument, saying "[Alonso] knows there are international regulations for Balanchine's pieces, and she respects them internationally. But in the national context, she thinks the Cuban public has the right to enjoy Balanchine's pieces." He added, "Here it is considered that Balanchine's work belongs to humanity."

The foundation is not primarily concerned with the fees derived from licensing, but with the correct staging and teaching of the ballet in keeping with the choreographer's intentions. "If the National Ballet of Cuba is mounting ballets based on film or video or someone's memory of something, there is no question the performance will suffer," Sorrin told the Times.

This is only the latest conflict attached to the Cuban festival. Last month, the United States Treasury denied the application of ten American dancers who had been invited to perform in Havana. Nine of them, from the New York City Ballet, had been asked to perform an all-Balanchine program.

Two dancers from the Houston Ballet, neither of them American citizens, attended the festival, and performed a licensed version of the Tchaikovsky pas de deux.