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Seeing Red over the State of Copyright Law

Meredith Rose

Seeing Red over the State of Copyright Law

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What can Taylor Swift's ongoing project to re-record her albums teach us about music copyright, licensing, and the state of the industry? Quite a lot, actually!

The underlying composition and the actual recorded track are two different things. Taylor's plan to re-record songs that she had already recorded and released has everything to do with how the rights to the original recordings (also known as "masters") were handled.

"Masters" is an old term in the industry. In the pre-digital era, the "master" referred to the high-quality physical tape (or vinyl record) from which all later versions of a track were reproduced. Whoever controlled the master controlled its later reproduction.

Nowadays, we don't really use physical master copies anymore. "Masters" is instead used colloquially to refer to the legal right that allows you to control the reproduction, distribution, and public performance of a work—that is, controlling the copyright in the recording.

In a vacuum, copyright law gives masters rights to the artist herself as the "author" of the recording. In practice, though, every record label contract contains a clause in which the artist grants the label an exclusive and total license, taking it out of the artist's hands.

Masters Battles Are Nothing New

Swift's contract licensed out full control of the masters for her first 6 albums to her record label, Big Machine. She apparently spent years trying to buy those rights back from the label, with no success.

But, because the record industry and venture capital are a match made in heaven (or hell), Big Machine was bought for $300M in 2018 by a venture capital group run by Scooter Braun. Swift now had to negotiate with a gigantic venture capital group, and talks broke down.

Seems weird that the artist would have to go through all these hoops just to control the art they made, right? Well, yes, but this is the beast of the modern pop music industry; contracts are bad, venture capital is king, and leverage is always with the label.

If Swift—who is, without exaggeration, one of the biggest powerhouse pop stars of an entire generation—can't get her own masters back, who could? Turns out, almost nobody. Prince very famously managed it through a war of attrition (but I'll let other attorneys tell that story).

The Last Time the Law Was Changed

Why hasn't Congress fixed this? Well, they tried.

In the 1970s, Congress created what is called a "termination right." That right says that, 35 years after you hand the label a license to your work, you—as the recording artist—can come and just . . . end that license.

This is, basically, a way to reclaim your copyright as an artist. It's a huge deal!

Or at least, it should be.

(Cue the thematically ominous music.)

The system that Congress created was littered with procedural hurdles, tight timing requirements for the artist (can't file too soon, can't file too late), and "work for hire" exceptions that the music industry has abused.

Over the years, courts have piled on, gutting the termination right and making it more or less unusable to anyone without a very aggressive lawyer and a LOT of willpower and money.

And even then it doesn't always work; Billy Joel couldn't reclaim his masters.

Everything That Needs Changed

How do we fix this? A couple of ways, and thank you for caring enough to ask.

For current artists, it's a question of reforming the industry from the inside. That's a big lift and not one I'm well-placed to describe. But you can get more information from folks like the Future of Music Coalition, who are deep in the trenches helping musicians fight for better contract terms.

For legacy artists? First and foremost: listen to them. Especially listen to the stories of BIPOC, female, and marginalized artists who still struggle under oppressive contracts.

Third, tell Congress to fix the Termination Right. That starts with asking the Copyright Office to do a full, comprehensive review of the many ways the implementation of the termination right has failed artists.

Finally, get educated! This blog from my former colleague Dylan Gilbert on Public Knowledge is a fantastic place to start and gets into the ways that musicians want to use the termination right but often can't.

What Taylor Swift is doing is, frankly, awesome as hell. But I hope we can use this as a moment to focus on musicians with fewer zeroes on their balance sheet and less name recognition, who are exploited by this industry and don't have the platform or resources to do what she does.