Page 3 of 4
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.
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 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 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 L.A.
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 the 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 guarantees that the works under that name will continue to be desirable commodities. Even on a charitable project like Red Hot + 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 Hanna, 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, naturally, 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 archive), and the compulsory rights provision provides a fire wall 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 Brian Hanna 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 béte noire, 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 + 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 surviving to see their own 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 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."
