Rhapsody in Green

As the Gershwin centennial closes, his trust benefits from new copyright laws. But are they protecting artists or merely bank statements?

George Gershwin, composer of Rhapsody In Blue, the opera Porgy and Bess, and (with his older brother, lyricist Ira Gershwin) a multitude of classic American popular songs, died from a misdiagnosed brain tumor on July 11, 1937, at the tragically early age of 38. (Ira wrote well into the '60s and lived until 1983.) Though his work was hardly ignored during his lifetime, George never lived to see many of his songs given the interpretations by which we now know them best; in 1937, Ella Fitzgerald had just begun singing with Chick Webb, and Judy Garland was all of fifteen, with Girl Crazy and "But Not for Me" still six years away. Nor did he see An American in Paris or The Barkleys of Broadway, films that helped raise such previously little-known songs as "I'll Build a Stairway to Paradise" or even "They Can't Take That Away From Me" to "standard" status.

And even had Gershwin lived to the ripe old age of such contemporaries as Richard Rodgers and Cole Porter, he wouldn't have lived to see himself and his work celebrated as they were in 1998, the centenary of his birth, with events ranging from all-Gershwin programs (from Carnegie Hall to the Hollywood Bowl), to show revivals (such as the strikingly contemporary 1931 political satire Of Thee I Sing, produced in November in Los Angeles), to new revues (Fascinating Rhythm, a Broadway-bound production that just opened in Tucson, Arizona), to newly recorded tributes (including pianist Herbie Hancock's Gershwin's World and the Red Hot Organization's benefit record Red, Hot, and Rhapsody, which includes contributions from the likes of Morcheeba, Luscious Jackson, and Natalie Merchant).

There's no doubt that these songs deserve such artistic longevity. But what's been questioned lately is the longevity with which the Gershwins' heirs and trusts can exercise control over--and profit from--this body of work. Until two months ago, the standing rule for anything copyrighted before 1978 was that it became public domain after 75 years. But as more and more profitable works--including such seemingly ironclad brand identities as Mickey Mouse--began approaching copyright expiration, the interested parties began lobbying the U.S. Congress for new laws. The result: In October, congress passed the "Life Plus 70" bill (formally known as the Sonny Bono Term Extension Act, for the late congressman/songwriter), which extends the term of protection for works copyrighted before 1978 from 75 years to 95, whether their authors are living or not, as of January 1, 1999. The bill also extends the term of protection for works created after 1978 to the life of the last remaining author plus an additional 70 years--twenty years more than the "Life Plus 50" standard that was put in place by the last major copyright bill in 1978. The new bill again raises fundamental questions about the purpose of extended copyright laws--whether they genuinely protect an artist's work/vision or merely ensure decades of profitability for his/her descendants. And what, if any, public interest is served.

For the Gershwins' heirs (and for Warner-Chappell Music, their publisher), the immediate result is that songs written in 1924--which would have gone into public domain this year, allowing anyone to record or broadcast them for free--are now protected and profitable until 2019. (Earlier Gershwin hits, notably 1919's "Swanee," with lyrics by Irving Caesar, have already slipped into public domain.) Since 1924 marked the first significant year for the George-and-Ira collaboration, this includes the perennials "Fascinating Rhythm" and "Oh, Lady Be Good!" This retroactive extension of older copyrights is a new wrinkle, according to Professor Eugene Volokh of the UCLA School of Law.

"Traditionally, copyright acts have retained the rules that used to exist at the time the law was created," he says. "Somewhat unusually, this time the law quite consciously goes after works that have already been created, partly because that's who some of the lobbyists were--people like Disney and such who want to have extra protection for works." (Under the old law, Mickey Mouse himself would pass into public domain in 2003, 75 years after his debut in 1928's Steamboat Willie--a bit too soon for corporate comfort.)

But, he adds, the self-interest of the lobbyists doesn't necessarily taint the bill's usefulness.

"It's quite clear that many of the groups lobbying for this were self-interested; that doesn't automatically make the law either good or bad," he says. "To take another example, I think free trade is a wonderful thing for consumers, but a lot of the forces who supported NAFTA and such were producers who wanted to take advantage of it. The fact that they were self-interested doesn't tell us much about what the right legislative answer is."

American songwriters have been acutely sensitive to copyright issues for most of this century. As early as 1912, Irving Berlin penned "Come Back to Me My Melody," in which a slightly paranoid songwriter, disturbed by a band's unauthorized rendition of his song, pleads with his own creation: "I want you, don't you understand/Locked up in my baby grand/Where I can lay my hand on thee." Two years later, a similar experience by composer Victor Herbert led to the founding of the country's first performing rights organization, ASCAP (American Society of Composers, Authors, and Publishers), which negotiated and collected performance (and later broadcast) fees for its members' works. (Before this, a songwriter's main income was from sales of sheet music.) In 1940, BMI (Broadcast Music Incorporated) was formed by radio broadcasters to perform a similar service for songwriters who didn't meet ASCAP's then-exclusive criteria for membership.

And in 1993, heirs of the Gershwins, Berlin, Porter, and Rodgers and Hammerstein--the list goes on--as well as such living writers as Betty Comden, Adolph Green, and Leonard Bernstein formed AmSong, a nonprofit songwriters' education and advocacy group which has grown to include everyone from Burt Bacharach and Neil Diamond to the trustees of Thelonius Monk, Billy Strayhorn, and Jimi Hendrix. According to Lisa Alter, a New York attorney who serves as the group's outside counsel, "AmSong doesn't collect royalties or get involved in the business end. It doesn't replace the performing rights societies, but supplements them." It does so mostly by being an advocate for songwriting heirs. A primary reason for AmSong's existence: Only living songwriters and music publishers can sit on the boards of ASCAP and BMI. Mark Strunsky--a trustee of the Ira and Leonore Gershwin Trusts, and a founding member of AmSong--explains that "when an executive of a publishing company dies, another executive can be elected to the board of ASCAP, and the interests of the publisher are protected. But a representative of a songwriter's estate can't even be a voting member."

All three groups testified in favor of the legislation in Senate hearings. According to Strunsky, most of the opposition to the bill came from academics who worried that corporate profit would be the sole beneficiary of extended copyrights. Certainly corporate entities helped ensure the law's ultimate passage. Strunsky says that Disney was integral in seeing the bill through to the final vote; Marc Gershwin, another Gershwin trustee (on the George side) and an AmSong founder, agrees.

"The authors and composers had some clout, but the things that finally made [this law] get passed was Michael Eisner--Mickey Mouse," he says. "The film industry was the sledgehammer."

With that kind of backing, it might sound as though term extension's raison d'étre is the desire of a few already-wealthy interests to squeeze a bit more revenue out of a decades-old creative work. Proponents argue that several practical considerations mitigate such a one-sided interpretation. One of the most pressing, according to Marc Gershwin, involves international standards. The European community had already adopted life-plus-70, which meant that performers could be required to pay international fees for works that, in the U.S., were already public domain. (One imagines, however, that few performers would choose the solution of paying U.S. fees as well.) Another justification turns on the creation of "derivative works" generated from copyrighted originals--translations, sequels, and films made from novels.

"If Mickey Mouse is about to lapse into public domain, Disney is less likely to make a new Mickey Mouse movie, because as soon as the copyright lapses, other people can come out with lots of new Mickey Mouse movies," Volokh says. "So the notion is that no one's going to create derivative works of originals that aren't protected, out of the fear that anyone can come out with other derivative works that will compete with [them] in the market."

Think of the reception of Milos Forman's film Valmont, based on the same source material as Dangerous Liaisons, which came out just months earlier. Of course, this cuts both ways: If an original is in the public domain, the production of derivative work from it won't include the often-prohibitive cost of acquiring the rights. And, as opposed to other media, the right to create a derivative work by recording or performing a new version of an existing song is relatively easy to come by; a songwriter can choose the initial performer of a song (and perhaps exact a first-use fee), but after that, he/she can't prevent any future covers, however aesthetically distasteful.

"After a song's been recorded once," says Todd Brabec, senior vice president and director of membership of ASCAP, "anyone can record it, if they pay the standard rate, 7.1 cents per copy per sale."

This legal provision seems to reflect a healthy attitude about the unpredictable and ultimately uncontrollable nature of popular music. Of course, using the song in a film, TV show, or commercial requires securing usage rights and paying for a master recording; these further fees produce a significant portion of the continuing income from a song or composition. Marc Gershwin estimates that United Airlines paid "in the low six figures" for their current usage of Rhapsody in Blue. Which points to yet another reason for strong copyrights--incentive for an artist.

"Keeping these copyrights licensable, and making sure that payments can be collected, is an ongoing recognition of the value of these creations," ASCAP's Brabec says. "It also ensures that, if people can make a livelihood from their creativity, they'll be drawn into it and create bigger and better product--though that's a terrible way of putting it."

This particular argument understandably doesn't impress UCLA's Volokh.
"For preexisting works, you don't need to provide an incentive for creating them; they've already been created. And for new works, well, the difference between life-plus-50 and life-plus-70, or between 75 and 95 in most cases--the value of that extra twenty years to the creator--is zero."

Though, as we've seen, the value to the creator's descendants may be considerable.

Ask Marc Gershwin or Michael Strunsky, the songwriters' heirs, why copyright term extension is a good thing, and they'll emphasize the artist's right to expect that his or her work will be protected, economically and otherwise, after his demise.

"As copyright law developed over time, the idea evolved that the work should be protected for two generations--the idea was that a creator would know his grandchildren," Marc says, echoing almost exactly one of Strunsky's points. "What's happened is that, as people live longer, the terms have to be increased to meet that standard."

This is a slightly odd point to make in the present context, as neither George nor Ira Gershwin had children, and George died too unexpectedly to prepare a will--his estate passed to his mother, and through her to her brothers and their children, including Marc Gershwin. Similarly, Strunsky is a nephew on Ira's side. ("There are separate estate managements," he explains, "but we're joined at the hips, because many of these are joint works between George and Ira, and about 65 percent of Ira's catalog was with George.") Though it's surprising to learn that the gatekeepers of the Gershwins' legacy aren't more closely related to its creators, the fact is fairly unremarkable, given the vagaries of inheritance law. And talking to both men, one senses that, though neither is blind to the economic value of these songs, both have a protective sense of duty toward it that can't be explained solely in terms of royalty checks. (Perhaps this sense of duty is a genetic inheritance from Ira, who spent his last years devotedly attending to his brother's manuscripts.)

Although, as noted above, anybody can record a Gershwin song for the standard statutory rate, the estate does have the power to award or deny "grand rights" over theater works. Both Strunsky and Marc Gershwin mention that the requests to produce Porgy and Bess with a white cast or chorus are routinely rejected, while Strunsky adds that, on major stage productions of Gershwin shows, the trust may require director and cast approval.

"It's very rare, though, that we would exercise that, as producers and investors in a show are already taking a great risk, and that has to be protected," he says. "You need to let actors and directors do their creative tasks; you can't dictate down to the last detail."

Amateur and stock productions are even less closely monitored, and with respect to orchestras, Marc Gershwin says that the trust "basically rubber-stamps them." The estates also control synchronization rights over the Gershwin catalog, and Strunsky says that they usually ask to see storyboards for commercials, and they refuse to approve lyric changes.

"At one point, Campbell's Soup wanted to do, 'Potato, potahto, tomato, tomahto, let's call the whole thing soup,'" he says. "We rejected that.

"This kind of attention keeps the works healthy, and lets us control their perversion. Someday copyright protection will disappear, and these things will happen; in the meantime, I think this is a good thing."

The royalties generated from those rights that are awarded are often used to support particularly noteworthy or prestigious presentations of the Gershwins' work. Marc Gershwin says that the recent Gershwin concerts at the New York Philharmonic were "more or less underwritten," as was the Los Angeles production of Of Thee I Sing. Additionally, the Ira and Leonore Gershwin Trusts include several charitable entities, funded largely by copyright income; beneficiaries have included PBS's Great Performances series, the San Francisco Symphony, the Library of Congress, and an archive and resource center in Los Angeles.

Of course, many of these charitable activities are also judicious investments that help preserve the continued worth of a valuable resource. By striking a balance between keeping the songs in public eye and keeping them "healthy" by forbidding their indiscriminate use, the estates also protect the prestige of the Gershwin name, which, for many Americans, has become synonymous with a bygone era of high-quality popular music, and guarantee that the works under that name will continue to be desirable commodities. Even on a charitable project like Red, Hot, and Rhapsody, this prestige allows the Gershwin estates to negotiate a reduced statutory royalty rate rather than waiving it outright.

"We approached the Gershwins," says Brian Henna, general manager of the Red Hot Organization. "And we came to what we thought was a fairly charitable rate, because we were getting so many songs from the same source. It's slightly atypical, but keep in mind that we'd also have a hard time getting a single artist to record a whole album for us for free." In other words, even under these conditions, it's still worth the organization's while to pay for the Gershwin imprimatur. And, of course, it's worth the trust's while to accept.

On balance, American copyright law doesn't stifle creative use and interpretation of popular music as much as it might appear. Scholarly and satirical uses are largely protected (though the Ira Gershwin estate can, at least in theory, refuse access to its archives), and the compulsory rights provision provides a firewall between copyright holders' and artists' interest in existing works. And there's nothing anyone can do about less direct usages; the chord changes of "I Got Rhythm" are almost as common as the blues as an armature for jazz improvisation. As Henna says, "We had a lot of support from the Gershwin family, but we told them that, if they liked everything, we weren't doing our job." The album even includes lyric changes, Michael Strunsky's bete noir, on Michael Franti's version of "It Ain't Necessarily So." Even Strunsky seems to recognize the need to let artists do what they may with the songs he protects; asked his opinion of Red, Hot, and Rhapsody, he demurs: "I don't think that's really for me to judge."

Even so, Strunsky wouldn't mind having an even longer period of control, in the form of a retroactive change to "life plus 70" for songs written before 1978. "Take a song like 'Fascinating Rhythm,' from 1924. If we were in accordance with the rest of the world, all of Ira's work would go out in 2053 rather than 2019. There's a much greater respect for intellectual property in Europe than in the U.S. Here, you have a situation where Irving Berlin could outlive some of his own copyrights. This is the only country where that can happen."

Of course, Berlin lived for 101 years; few living songwriters are in danger of living to see their copyright protection lapse, especially under the new rules. UCLA's Volokh believes that life-plus-50 already provided ample protection and incentive, but adds that's it's entirely plausible that further extensions await future heirs. "'Life plus 90' could be the rallying cry of the future," he jokes. Or, as Michael Strunsky laughingly puts it when asked about future fights to protect both the integrity and profitability of the Gershwin catalog, "Ask my son.

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