Gershwin reinventions and copyright law

Hi all,

I have a very specific, slightly pedantic question. Would productions like Nice Work If You Can Get It or Crazy For You affect the status of the copyrights held by the Gershwin estate? Usually a song remains protected for 70 years (up to 120 in more modern deals), but I believe that the Gershwin catalogue remains protected - does the existence of these reinventions reup the copyright as they are now protected in a different artistic context than the original show? (IE I've Got Rhythm is now protected by Crazy For You instead of Girl Crazy)

Google is failing me

Here is my understanding:

With music, there are two things that can be copyrighted: the composition itself (i.e. the arrangement), and a performance of it.

The rights holder can produce a new arrangement, or license new performances, and those each have their own copyright dates that start when they are created. But the original arrangement's expiration remains the same, and it cannot be extended (unless Congress changes the law and extends it).

Here is a hypothetical example: Rhapsody in Blue entered the public domain in 2020. If it had been included in a musical in 2015, it might have had a new arrangement that would have had a new copyright. Performances of the song (and the show itself) would have new copyrights. But the original arrangement would still have gone into the public domain in 2020.

The bottom line is copyright can't be extended. The rightsholder can create a new work based off the original that would have a new copyright, but the original creation's copyright expiration date would remain.

fashionguru_23 said: "ctorres23 said: "

The bottom line is copyright can't be extended. The rightsholder can create a new workbased off the originalthat would have a new copyright, but the original creation's copyright expiration date would remain."

So, ctorres23: I'm assuming that if (for example) The Gershwin estate, were to only allow the Broadway production of "Porgy and Bess" from 2011 to be the only production available to license, they could keep receiving royalties until that copyright expires?"

Caveat: I'm not that familiar with the details of Porgy and Bess, so I'm a little bit out of my element here, but I'll answer as best I can.

Looking at Wikipedia, it looks like the original production premiered in 1935, which means it will be public domain on Jan 1, 2031. Whatever version of the show premiered in 1935 will go into the public domain then, and there is no way to extend the copyright for that version. That means the song arrangements, the book, etc.

Now, it looks like the 2011 version has a new book adaptation, which makes the collective show a new work. So that particular version will have a new copyright that will expire in 95 years. If the songs were also newly arranged, depending on how substantively different they are from the originals, the copyrights on the new arrangements will also expire in 95 years.

However, the original production from 1935 will still expire on Jan 1, 2031, and after that you could freely create derivative works assuming they are based on the original songs/arrangements and book. At that point the Gershwin Estate could not stop you from producing the 1935 version, even though the 2011 version is still copyrighted.

ctorres has pretty much nailed this, but just to put a ribbon on it.

There are two separate type of copyright that can apply to a song. The composer's copyright, which has been around forever, has had different lengths associated with it. This can get quite confusing, so it's best to check the specific song.

Two facts are that songs and other works from 1924 entered the public domain last year. These include "Rhapsody in Blue." The copyright was supposed to expire in in 2000 after 70 years, but Congress tacked on another 20 years, leading to last year's final expiration.

The copyright that allows one who performs or more commonly records a song to collect a royalty when that song is played on the radio was not created until 1971 by Congress. This was to allow the recording artist and the record label that represented him or her to get paid as their former source of revenue, a cut of the sales of records and CDs, began to shrink.(Oddly enough, through some political misdeeds no doubt, only streaming digital broadcasters have to pay the performance royalty. Traditional AM/FM analog over the air stations pay the performers nothing.)

So "I Got Rhythm" will not be in the Public Domain for a few years. When the songs are in the public domain, someone who mounts a revival of Crazy for You would have to license the show but not the songs.

I think I've made this more confusing. For songs written after 1981 it is very simple: Public Domain 70 years after the death of the last of the composers. Unless Congress changes it again.

That's far too broad a question to expect a meaningful answer here. If you are interested, I would start with this page (free) from the copyright office. You could also start with many primers on copyright, like that included in this book.

I work at a college library, and my job position is 90% of sharing copyrighted information with patrons and other libraries. Every three years, my employer sends me to a two-day seminar on copyrighted and licensed works. Some attendees find it boring, though I find it very educational and fascinating. The guy who runs it is a copyright attorney who seems to know 'everything' about copyright laws, as he's represented both sides for the past 20 years. My next seminar is scheduled in March, but that depends on the pandemic status. (The seminars are usually held in the Boston, MA area).

Anyhow, this attorney has released a number of of ePubs which covers the information he lectures on at these seminars. I will try to locate his name and the info for you - if you're interested, you can either buy directly from his site or borrow from your library if they have them available.

ctorres23 said: "Here is my understanding:

With music, there are two things that can be copyrighted: the composition itself (i.e. the arrangement), and a performance of it.

The rights holder can produce a new arrangement, or license new performances, and those each have their own copyright dates that start when they are created. But the original arrangement's expiration remains the same, and it cannot be extended (unless Congress changes the law and extends it).

Here is a hypothetical example: Rhapsody in Blue entered the public domain in 2020. If it had been included in a musical in 2015, it might have had a new arrangement that would have had a new copyright. Performances of the song (and the show itself) would have new copyrights. But the original arrangement would still have gone into the public domain in 2020.

The bottom line is copyright can't be extended. The rightsholder can create a new workbased off the originalthat would have a new copyright, but the original creation's copyright expiration date would remain."

Is this why Disney is hell bent on remaking every single piece of ip they have?

ctorres23 said: "fashionguru_23 said: "ctorres23 said: "

The bottom line is copyright can't be extended. The rightsholder can create a new workbased off the originalthat would have a new copyright, but the original creation's copyright expiration date would remain."

So, ctorres23: I'm assuming that if (for example) The Gershwin estate, were to only allow the Broadway production of "Porgy and Bess" from 2011 to be the only production available to license, they could keep receiving royalties until that copyright expires?"


Caveat: I'm not that familiar with the details of Porgy and Bess, so I'm a little bit out of my element here, but I'll answer as best I can.

Looking at Wikipedia, it looks like the original production premiered in 1935, which means it will be public domain on Jan 1, 2031. Whatever version of the show premiered in 1935 will go into the public domain then, and there is no way to extend the copyrightfor that version.That means the song arrangements, the book, etc.

Now, it looks like the 2011 version has a new book adaptation, which makes the collective show a new work. So that particular version will have a new copyright that will expire in 95 years. If the songs were also newly arranged, depending on how substantively different they are from the originals, the copyrights on the new arrangements will also expire in 95 years.

However, the original production from 1935 will still expire on Jan 1, 2031, and after that you could freely create derivative works assuming they are based on the original songs/arrangements and book. At that point the Gershwin Estate could not stop you from producing the 1935 version, even though the 2011 version is still copyrighted."

Just asking this because I'm curious, even though I know you are saying you aren't the Porgy and Bess expert. But if the stipulations are based on performance, then does that mean, since the complete score of Porgy and Bess was not performed onstage until 1976, the complete score will not be in the public domain until 2070. Anyone know?

ctorres23 said: "As far as I know, when the first performance of a copyrighted work occurred does not affect or extend the expiration date of the original copyrighted material. If that performance was recorded, then the recording's copyright would not expire until 2070, but the sheet music (or however the original score was recorded) would still become public domain sometime in the 2030s.

(Also, apparently my account was deleted? I have no idea why. I took a break from this site and then it was gone. I re-registered. If that's not kosher, hit me with the banhammer.)"

Thanks!