77 Pages Posted: 15 Feb 2005
Treatment of musical borrowing under current copyright standards is far too often inequitable. This is evident in the works of George Gershwin, who, for a number of reasons, was able to borrow freely from existing traditions, works and artists, copyright the works he produced that reflected such borrowings, and then restrict future borrowings and reinterpretations of his works. Looking at the operation and the uses of copyright in the specific instance of George Gershwin's musical practice reflects uses of copyright in the musical arena and demonstrates some ways in which current copyright frameworks may not adequately contemplate actual practices of music copyright holders. George Gershwin borrowed from a wide range of musical sources, worked extensively with technical collaborators throughout his career, and immersed himself in African-American musical traditions. Following Gershwin's death, 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 seventy years beyond the lives of individual creators. The Gershwin heirs have, in most cases, not permitted borrowing or significant reinterpretation of George Gershwin's works. The ability of heirs to control borrowing from and interpretations of existing musical works reflects the fact that copyright structures to this point have been based on the 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 a major rationale for copyright. By potentially significantly limiting borrowing and reinterpretation, 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 the compensation aspects of copyright, particularly in cases of post-mortem artistic legacies. This separation would also involve moving in the direction of a liability-based standard in copyright that permits borrowing other than in instances of unfair use, in contrast to current standards that significantly limit borrowing except in limited instances such as fair use.
Keywords: Musical Composition, Copyright, George Gershwin, Copyright, Heirs, Control v. Compensation, African American Musical Tradition, American Musical Tradition, Sampling / Borrowing, European Classical Tradition, Sociocultural Factors
JEL Classification: K11
Suggested Citation: Suggested Citation
Arewa, Olufunmilayo, Copyright on Catfish Row: Musical Borrowing, Porgy and Bess, and Unfair Use. Rutgers Law Journal, Vol. 37, No. 2, Winter 2006; Case Legal Studies Research Paper No. 05-3; Northwestern Public Law Research Paper No. 667385. Available at SSRN: https://ssrn.com/abstract=667385 or http://dx.doi.org/10.2139/ssrn.667385