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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."
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.")
