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Rhapsody in Green 

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

Wednesday, Jan 6 1999
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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. 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 15 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 survived to see himself and his work celebrated as they were last year -- 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 by L.A.'s Reprise!) to new revues (Fascinating Rhythm, a Broadway-bound production that just opened in Tucson, Ariz.) to newly recorded tributes (including pianist Herbie Hancock's Gershwin's World and the Red Hot Organization's benefit record Red Hot + 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 just how long the Gershwins' heirs and trust should exercise control over -- and profit from -- this body of work. Until three months ago, the standing rule for anything copyrighted before 1978 was that it became public domain after 75 years. But as copyright expiration loomed for more and more profitable works from the mid-'20s -- including such seemingly iron-clad brand identities as Mickey Mouse -- the interested parties began lobbying the U.S. Congress for new laws.

The result: This October, Congress passed the "Life Plus 70" bill (formally known as the Sonny Bono Copyright 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 Jan. 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 -- 20 years more than the "Life Plus 50" standard that was put in place by the last major copyright bill in 1978.

And 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.

As well as the question of 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 corpo-rate 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."

The new law affects not only songs but films, books, cartoon characters -- any kind of copyrightable intellectual property. But 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 Inc.) 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 & 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 Thelonious 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 this mostly by being an advocate for songwriting heirs. A primary reason for AmSong's existence is that 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."

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Franklin Bruno

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