How Taylor Swift’s Re-Recordings Expose the Pitfalls of Intellectual Property Law in the Music Industry
By now you’ve probably heard about mega-star Taylor Swift re-recording her old albums. At the end of 2021, Swift released Red (Taylor’s Version), a re-recording of her 2012 album, Red. This followed the April release of “Taylor’s Version” of her 2008 album, Fearless. Now why would a globally-known music artist take the time to re-record her already-recorded music? The answer can be found in the incredibly complex world of intellectual property law – and the issues that led to Swift’s undertaking are not only affecting artists of her stature.
First, it’s important to understand that a single song can have two distinct copyright holders. The first, and perhaps most obvious, is the holder of the “composition rights,” the rights that belong to the individual who created the song itself. This is comprised of the notes that are played and the words that are sung. Copyright law automatically bestows ownership rights of the composition with the artist. One could easily assume that the artist would also hold the copyright of the recording of said song, but this is not always the case. The recording is actually deemed a separate “intellectual property” under copyright law - and therefore is covered by a separate copyright, known as the “masters rights,” which, more often than not, is held by someone other than the recording artist.
In addition to these considerations under copyright law, Swift and other artists must consider the power these laws have when put into writing under a contract. The scope of their ownership can be shaped or limited by an agreement. At times, this is achieved through what is called a “work for hire” clause. The ramifications of such agreements can be incredibly long-lasting, as ownership by an individual artist lasts for their lifetime plus 70 years, and in the instance of a “work for hire” agreement, that copyright ownership could last either 95 or 120 years, depending on the circumstances.
In 2005, Taylor Swift signed her six-album deal with Nashville-based label, Big Machine Records. The contract stipulated that Big Machine would own the master recordings of Swift’s work. Her contract with Big Machine Records was so broad, in fact, that she was actually forbidden from re-recording any of the works contained within those masters for a period of years. So, when that contract ended in 2018 and Swift moved to another record label, she retained the copyrights to the compositions she had made under her contract with Big Machine, but not the rights to the original recordings, or “masters”, which comprised her first six albums. In 2019, Big Machine was sold to music manager Scooter Braun, an acquisition that included Swift’s masters. Braun later sold Swift’s back-catalog to Shamrock Capital, a private investment company.
Swift claims that the sale of her masters occurred without her knowledge, which (though completely legal) inspired her to take control of her own body of work by completely re-recording her first six albums. By producing her own recordings, Swift will then hold both the composition rights and the masters rights to “Taylor’s Version” of her old albums, allowing her to profit from sales and streaming. As she releases “Taylor’s Version” of each album, she depreciates the value of her original masters, held by Shamrock, and is now able to secure some of the profits from her own work. This was a savvy move on Swift’s part, thanks to her massive, loyal fanbase. Accordingly, there is speculation that sales of Taylor’s re-releases could very well outperform the original albums.
What does this mean for the vast majority of people who are, in fact, not Taylor Swift?
While very few ever achieve the level of notoriety that Taylor has, many artists are impacted by similar contract and copyright issues, simply because they do not have the bargaining power or resources when signing early record deals. In the instance that a song or album sells millions of copies (at least in Swift’s case), a recording studio will experience a windfall, simply by having control over the master and selling records and/or licensing the music to TV, film, radio stations, etc. However, the artists’ only hope of making money from their ownership of the composition, is to reproduce that composition (again and again) through live performances.
Though Swift is not the first artist to re-record her music for these reasons, talk surrounding her new releases of old albums may signal a shift in how power, wealth, and ownership are distributed in the ever-shifting music industry. Artists are becoming increasingly aware of the harmful side-effects of not owning their masters and are pushing for contracts that would grant them more comprehensive rights to their own works.
Either way, Taylor’s got a fan in me.