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January 16, 2024 Feature

Taylor Swift: Music Icon and Copyright Gamesman?

Ashley N. Klein

©2024. Published in Landslide, Vol. 16, No. 2, December/January 2024, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Taylor Swift, the pop music icon known around the world for her skillful songwriting and brilliant breakup anthems, continues to change how music is distributed and consumed by the public. In her latest venture to level the playing ground for artists and creators, Swift has set out to rerecord her album collection—a time-consuming move in the midst of writing new songs and preparing for and performing The Eras Tour.

Copyright law is the bedrock of the music industry, and Swift’s move to rerecord her album collection can teach us a thing or two about the intersection of copyright law and the law of contracts.

How You Get the . . . Music Copyright

A piece of music generally involves two copyrights: (1) the copyright to the musical composition itself, which generally belongs to the songwriter; and (2) the copyright of the master recording, which belongs to the performer. The owner of the copyright of the musical composition has exclusive rights to reproduce the work, distribute copies of the work, perform the work publicly, make a derivative work, and display the work publicly. However, the owner of the master recording also has rights, which typically include the ability to sell songs and albums, as well as to license the recordings.

While copyright law dictates ownership rights by law, in practice, the ownership of these rights is largely governed by contract. For example, ownership over recorded music and related copyrights depends on the contract between the label and the artist, but the industry standard where record labels are involved typically gives ownership of the master recording to the label and ownership of the musical composition to the songwriter.

Sparks Fly with Swift’s Record Deals

Taylor Swift’s first record deal was a development deal with RCA Records when she was 13, followed by a publishing contract with Sony/ATV in 2004. Arguably her most famous deal was the record deal she signed in 2005, when she was 15, with Big Machine Records. The next year, in 2006, she released her first single, “Tim McGraw,” followed by her debut self-titled album, Taylor Swift. Swift went on to release five other albums with Big Machine, Fearless, Speak Now, Red, 1989, and Reputation, before she told Big Machine they were never ever getting back together.

Swift’s contract with Big Machine gave the label ownership of all of her masters recorded between 2006 and 2018. After the contract expired in 2018, Swift said she “asked, pleaded for a chance to own [her] work,” but Big Machine refused and gave her “an opportunity to sign back up to Big Machine Records and ‘earn’ one album back at a time.” Swift “walked away because [she] knew once [she] signed that contract, Scott Borchetta [founder of Big Machine] would sell the label.”

Instead, Swift signed with Universal Music Group’s Republic Records in 2018. Her contract with Republic gives her ownership of her masters, making Lover the first album that belongs to her, and giving her ownership of every album that followed: Folklore, Evermore, Fearless (Taylor’s Version), Red (Taylor’s Version), Midnights, Speak Now (Taylor’s Version), and 1989 (Taylor’s Version).

You Belong with Me: Why Swift Is Allowed to Rerecord Her Masters

Although Swift’s contracts are not publicly available, based on her statements, her contract with Big Machine prevented her from rerecording any of her first six albums until November 2020. Once her rerecording clause expired, Swift’s position as owner of the copyright in the musical composition conferred the ability to record exact replicas of her original albums. The copyright rights in a sound recording “do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.” For this reason, record labels employ contractual measures to prevent an artist from undercutting the label’s profitability by rerecording their music. Because Swift owns the copyright rights in the underlying composition, she can essentially cover her songs without having to touch the masters.

By rerecording her music, Swift effectively created a market alternative for productions wishing to use her songs; and since she holds the copyright rights to both the sound recording and the musical composition of “Taylor’s Version,” she has full control over licensing rights. Swift’s rerecorded versions have begun to appear in commercials and on television, with a snippet of Love Story (Taylor’s Version) appearing in one of Ryan Reynolds’s commercials and This Love (Taylor’s Version) released as a single to appear in the show The Summer I Turned Pretty.

Why Is Swift Rerecording Her Masters? Bad Blood.

Swift’s reasoning for rerecording her master catalog is multifaceted. While Swift has a reputation for speaking out against actions that hurt artists, she also takes great pride in her work.

Karma: Artists Deserve Ownership

Swift has repeatedly shaken her head at music industry practices that harm artists, and she continues to use her platform to advocate for artists’ rights. For example, Swift pulled her entire catalog from Spotify shortly after the release of 1989 to protest Spotify’s streaming structure, and did not return her music to Spotify until 2017 before releasing Reputation. Swift felt that returning profits to artists was not achieved by Spotify as Spotify offered free on-demand streaming.

Swift is once again speaking out against industry practices by rerecording her masters, partially because of her belief that artists should own their work. Upon the release of Fearless (Taylor’s Version), Swift said, “artists should own their own work for so many reasons, but the most screamingly obvious one is that the artist is the only one who really *knows* that body of work.” Additionally, owning their own work gives artists full control over “how their final artistic works should be released and distributed” and “owning . . . masters is . . . extremely advantageous from a financial aspect as well.”

Better Than Revenge: The Benefits of “Taylor’s Version”

When Swift joined Republic in 2018, she went from an estimated 10%–15% in royalties with Big Machine to a royalty rate on new music of 50% or more. Therefore, all of the music released since switching labels, including “Taylor’s Version,” generate significantly more revenue for Swift than her albums under her contract with Big Machine. Because Swift has such a dedicated fan base and a sizeable music catalog, she has the opportunity to make significant profits from “Taylor’s Version,” all while diverting money from the original recordings.

Swift has also benefited from radio stations pledging to only play “Taylor’s Version” moving forward, and Swift’s rerecorded songs are outperforming their original counterparts on streaming services, going viral on TikTok, and landing lucrative licensing deals. Over the first year following the “Taylor’s Version” release, “Fearless (Taylor’s Version) totaled 722.7 million on-demand U.S. streams . . . while Fearless earned 296.8 million on-demand U.S. streams over the same time period.” It is safe to say rerecording Fearless, and the albums that followed, was another mastermind move by Swift.

The popularity of “Taylor’s Version” has not been without backlash, as major labels have overhauled their standard contracts to require new artists to wait 10, 15, or even 30 years to rerecord music releases. While mega-artists like Swift have more to leverage, smaller artists may pay the price of rerecording restrictions because they simply have less negotiation leverage and music labels have less motivation to give in on restrictions that would benefit their label. Unfortunately, Swift’s altruistic motive to bring light to the music industry’s standard practice of prohibiting rerecording for five to seven years appears to be backfiring against the very artists she professes to advocate for.

End Game

Like many artists, Swift’s original record deal with Big Machine gave control over the master recordings of her first six albums to the label rather than the artist. However, as the artist, Swift owned the copyright to the musical composition, so once the rerecording clause in her contract with Big Machine expired, she exercised the right to rerecord her music. Going forward, all of Swift’s new music belongs to her, as her record deal with Republic gives her the copyright rights to her masters. Ultimately, Swift’s experience is a cautionary tale for artists, especially as music labels increase the length of their rerecording clauses to combat other artists following in Swift’s footsteps.

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    Ashley N. Klein

    Morris, Manning & Martin, LLP

    Ashley N. Klein is an associate at Morris, Manning & Martin, LLP in Atlanta, Georgia, where she focuses her practice on copyright and trademark matters.

     

    The author thanks Haley Phillips, a 3L law student at Emory University, for her research assistance and passion for Taylor Swift.