Gershwin & Copyright

I'm not sure If I will ever get to fully read this massive paper (80+ pages), but it takes an interesting, fresh look at the scope of copyright by using the late composer Gershwin and the exploitation of his copyrights by his heirs as an illustrative example. Wildely illustrative, I should say, analyzing the musical origins of Porgy and Bess in great depth. For those who want to listen to around 200 different versions of Summertime, here is a link to a truly amazing (Russian) collection. Play them while you read the paper: Copyright on Catfish Row: Control and Compensation in Porgy and Bess by Olufunmilayo Arewa (SSRN)

Here's the abstract:

Current debates about the duration and scope of copyright protection such as those associated with passage of the Copyright Term Extension Act and recent Eldred v. Ashcroft decision, tend to be based on a general assessment of the implications and role of copyright rules as well as the cumulative impact of copyright on the public domain. Although underlying rules and their general impact are important, also important are the uses of copyright in particular instances as may be reflected in the behavior of individual copyright holders and the ways in which such holders actually exploit their copyrights. Looking at the operation and uses of copyright in the specific instance of George Gershwin's musical practice reflects uses of copyright in the musical arena and demonstrates the extent to which current copyright rules may not adequately contemplate actual practices of music copyright holders. George Gershwin worked extensively with technical collaborators throughout his career and immersed himself in African American musical traditions. Gershwin was also quite attuned to the importance of copyright. Following his premature death in 1937 at age 38, however, the Gershwin family came to control his copyrights, highlighting the role that heirs now play in the actual use of copyright given the fact that copyright duration now extends to 70 years beyond the life of individual creators. Copyright structures to this point have been based on combining of rights of control and compensation within copyright frameworks. Through various mechanisms, heirs in particular tend to exert control over uses of copyright in ways that have little to do with the creation of musical works that is the major rationale for copyright. In fact, the exercise of control over copyright in such instances may actually hinder the creation of later works. Uses of copyright by creators such as Gershwin and his heirs suggest that it would be prudent in some instances to separate the control and compensation aspects of copyright. The division of control from compensation will not only help keep the public domain strong, but may limit the opportunities for strategic and other behaviors that are becoming increasingly characteristic of the operation of copyright and intellectual property rights more generally.