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?

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."

All three groups testified in favor of the legislation in Senate hearings. According to Alter, 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 inte-gral 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 against such a one-sided interpretation. One of the most pressing, according to Marc Gershwin, involves international standards. The European community adopted Life Plus 70 two years ago, leading to a situation where American performers would pay royalties to European writers, while Europeans could use American music of the same vintage for free. According to Marc Gershwin, "Noel Coward would be protected in this country, while Irving Berlin or George Gershwin wouldn't have been in England." Supporters of the new bill viewed this as a kind of unbalanced trade regulation.

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 it in the market."

Think of the underwhelming reception of Milos Forman's film Valmont, based on the same source material as Dangerous Liaisons, which came out just months earlier. But 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 mediums, 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. This 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 pre-existing 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 20 years to the creator -- is zero."

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