The heirs of George and Ira Gershwin, creators of “I Got Rhythm” and many other standards that helped define the grand tradition of American popular song, have fallen badly out of step over who gets how much from the lucrative pot of royalties still being generated 72 years after George’s death ended songwriting’s greatest brother act.
The dispute -- over how to divide foreign royalties -- is spelled out in lawsuits in separate Los Angeles courts. In a Superior Court case that could be titled “Let’s Call the Whole Thing Off,” the trust that controls lyricist Ira Gershwin’s estate is suing Warner/Chappell Music, one of the giants of song publishing. Ira’s nephew and trustee, Michael Strunsky, accuses the publisher of favoring George Gershwin’s side of the family at Ira’s side’s expense, and wants to sever ties with the company that has administered the multimillion-dollar catalog for more than 60 years.
Warner/Chappell, in turn, portrays itself as caught helplessly between dueling Gershwin factions. The publisher has thrown up its hands and filed its own suit, asking a federal judge to step in and resolve who should get what from foreign royalties generated by the huge trove of songs the Gershwin brothers created between the early 1920s and 1937, when George died of a brain tumor at age 38. Their hits include “ ‘S Wonderful,” “Embraceable You,” “Someone to Watch Over Me,” “They Can’t Take That Away From Me,” “Let’s Call the Whole Thing Off” and, with novelist DuBose Heyward sharing credit on the lyrics, the songs from the opera “Porgy and Bess.”
The contentiousness in court stands in contrast to one of the most harmonious creative partnerships imaginable, notes Howard Pollack, author of “George Gershwin: His Life and Work.” The Gershwin brothers “worked very well together and were extremely close and supportive,” the University of Houston music professor said. “I don’t recall any instance of friction over [money] or anything else” -- apart from a single illuminating spat. In 1932, Ira was awarded the Pulitzer Prize in drama for his lyrics to the musical “Of Thee I Sing,” along with librettists George S. Kaufman and Morrie Ryskind. George Gershwin, who wrote the music, was snubbed by the Pulitzers, and older brother Ira wanted to boycott the ceremony in protest -- until George forced him to go.
“That’s about as dramatic as the relationship between those two got,” Pollack said.
In another recent biography, “George Gershwin: An Intimate Portrait,” Walter Rimler notes that the brothers spent not only their childhood but nearly all their adult lives together as housemates in New York and Los Angeles or, at most, across-the-street neighbors. The arrangement enabled them to run song ideas by each other when inspiration struck.
Ira’s creative output dwindled after his brother’s death; Pollack’s book cites Michael Feinstein’s account of discovering, upon being hired by Ira in the late 1970s, that “Ira’s home had become a veritable shrine to his brother’s memory, and that he talked to George in his sleep, carrying on conversations, ‘filled with anger, centering around Ira’s desire not to stay here on earth, and George’s insistence that he stay.’ ”
Point of disagreement
The fact that Ira Gershwin outlived his brother by 46 years, dying in 1983 at age 86, is at the core of the lawsuits.
At stake are foreign royalties that, extrapolating from partial information in the federal case, come to about $200,000 a year. In all, the Gershwin catalog appears to generate about $8 million a year in royalties, based on the public tax returns of two charitable trusts fed by Ira’s share of the earnings.
Songwriters, or their estates, earn royalties from each recording of their work that’s sold; they also collect on live performances, radio or Web broadcasts, sales of sheet music and use of a song in films, television and advertising.
In the United States, where they share jointly in the proceeds of their teamwork, there’s no dispute; both George and Ira’s estates will divide American earnings until the songs gradually enter the public domain, with the last copyrights due to expire in 2032. Here, copyrights for songs published before 1978 run out 95 years after their initial appearance.
But, as noted in the lawsuits filed in June and July, it’s different in the European Union and other territories. There, lyricists’ and composers’ copyrights are separate -- and in Europe they expire 70 years after a songwriter’s death. The suit filed by Ira’s side says that George’s earning power vanished in the European Union in 2007, his music entering the public domain, while royalties from Ira’s lyrics continue to flow.
While the two sides of the family haven’t sued each other directly, the court cases allude to an impasse between them over what to do about this overseas disparity. On one side is Ira’s nephew Strunsky, who controls royalties from his uncle’s work that primarily benefit the Library of Congress -- repository of George and Ira Gershwin’s papers -- and a Jewish charity in the Bay Area. On the other are George’s five heirs, the children of the songwriters’ younger brother and sister. Neither George nor Ira Gershwin had children.
According to the Strunsky suit, Warner/Chappell earns more from its deal with George’s heirs, so the publisher, while obligated to treat both sides equally, had a motive to favor George heirs’ interests. One example, Strunsky alleges, was an attempt to switch the song credits in the United Kingdom to “words and music by Ira and George Gershwin,” incorrectly conflating their separate contributions as lyricist and composer so George’s side wouldn’t lose out. The publisher tried for a similar switch in other foreign countries but failed, Strunsky alleges. A spokeswoman for Warner Music Group, parent of Warner/Chappell, declined to comment.
Strunsky, who wouldn’t comment on the suits or whether they reflect broader discord between the two sides of the family, seeks punitive damages against Warner/Chappell, saying it has an “irreconcilable conflict” while it represents both George’s and Ira’s estates.
There’s no evidence that the Gershwin legacy has been a chronic family battleground, say biographers Pollack and Walter Rimler.
“We’ve been able to conduct business over the years pretty reasonably,” said Robert Kimball, artistic advisor to Ira Gershwin’s estate since 1982. He declined to comment further.
Immediately after George’s death, Ira and his mother, Rose Gershwin, briefly tangled legally over who would control his estate. Rose won; but when she died in 1948 and left a bigger share to the two younger siblings than to Ira, the lyricist contested her will, Pollack writes, and the dispute was “amicably resolved between the siblings.”
A family member speaks
Of the songwriters’ heirs, only Marc Gershwin, the son of younger brother Arthur, was willing to comment on the relationship between the two sides of the family. He said the lawsuits don’t betoken any hard feelings.
“I don’t think anybody has lost any sleep about this thing. It’s procedural, and no one is particularly bothered by it,” he said, adding that this is the first litigation stemming from a disagreement between the two estates.
Other than that, Gershwin said, the family members get along well, usually meeting at events related to their forebears’ musical legacy. The most recent get-together, he said, was at a White House celebration in February, when Stevie Wonder received the annual Library of Congress Gershwin Prize for Popular Song, a medal bearing the Gershwin brothers’ likenesses. The team that helped define American popular song may be writing a posthumous, albeit discordant new chapter in law because of the copyright issues raised by the longevity of their songbook, and the nearly half-century between their deaths.
“I’m not aware of a previous case like this one,” said Lawrence Iser, the veteran intellectual property attorney who’s representing Strunsky. “There aren’t many catalogs like the Gershwin brothers’ catalog.”