Copyright Background of Taylor Swift’s Masters Dispute
In 2013, Taylor Swift signed a thirteen-year recording contract with Big Machine Records. [1] In that time, Swift recorded 6 Studio Albums: Taylor Swift, Fearless, Speak Now, Red, 1989, and Reputation. [2] After Swift’s contract with Big Machine Records expired, in 2018, Big Machine Records was sold to Scooter Braun, in 2020. [3] As a result, Braun controlled Big Machine Records assets, including the master rights to Swifts discography. [4] Braun then sold the rights to Swift’s masters to an investment company, Shamrock Holdings. [5] Swift expressed her disapproval and rejected an equity partnership offered by Shamrock Holdings. [6] With no way to control the masters to her music, Swift concocted a clever plan and regained control of her music.
Copyright law and Music
The copyright of a song is broken up into two distinct parts, the sound recording (the master) and the musical composition. [7] Master recordings have been described as “recording of sound, without or with visual images, which is used or useful in the recording, production or manufacture of records”. [8] The musical composition is the right to the music behind the song e.g., the melody, words, and sheet music. [9] Swift owned the rights to the underlying composition because she was the original songwriter to her discography. [10]
Application to Swift
Since Swift owned the underlying compositions of her music and her contract that prohibited re-recordings expired, Swift was able to freely re-record her original discography without any legal repercussions. With her iconic Taylor’s Version recordings, Swift now has full control over the re-recording master and their underlying composition rights. While Swift does not control the master’s to the original discography, her re-recorded discography is more popular than the original and is fully in her control. Previously, if Swift wanted to license her music, the final decision would be up to the master’s owner. Now, Swift can ink any deal she wants and thus retains control over her artistry. Taylor Swift’s dispute has now raised the question, do songs still need two distinct copyrights?
The Work for Hire Doctrine and Record Labels
Before the internet, artists relied heavily on record labels to promote and distribute music. [11] As such, record deals often gave record labels a majority, if not full, control over master. Moreover, record deals are structured so that anything produced during the tenure of the deal is considered a work for hire. Under the work for hire doctrine “the employer or other person for whom the work was prepared is considered the author…and…owns all of the rights comprised in the copyright.” [12] Record labels do this to compensate for the financial risk of promoting a new artist. [13] As such, control over any recordings made by an artist, under a record deal, is given to the label. With control over the masters, record labels can license recordings the way they want and try to recoup the money spent on artists. [14]
An Idea for Modernizing Musical Copyright
Now, with the accessibility of the internet and social media, an artist can essentially promote their own music with minimal record label involvement, consequently diminishing the need for record labels. [15] Thus, instead of distinguishing between master and composition rights, a song should be given a single copyright, so that artist have more control over their music. With this new method, artists will be able to fairly negotiate ownership. If an artist truly believes that they will require extensive label involvement, then they can offer a higher percentage control over their copyright, and vice versa. This way each party can be fairly compensated for their work.
If this methodology is adopted, labels will retain less control over the music industry and therefore produce less profits. Sadly, labels will likely lobby to prevent this from occurring, as they donate considerable amounts to political parties. [16] There is also another problem with this methodology. There are multitudes of business and jobs whose function is based on two distinct copyrights. Therefore, adopting such a policy would require an entire upheaval of the structure of the music industry. While a singular copyright may never come to fruition, artists still have a possible methodology for bypassing label control. If there are no contractual prohibitions on rerecording and the artist owns the composition rights to their music, then they can rerecord their music and retain full control over their art. However, after Taylor Swift’s re-recordings, labels have begun to re-negotiate and create stricter policies on their contracts. [17] These policies would elongate re-recording provisions and thus make it harder for artists to re-record their music and gain control over their masters.
[1] Alex Finnis, Taylor Swift masters: The controversy around Scooter Braun selling the right to her old music explained, I NEWSPAPER (Nov. 17, 2020, 12:36 PM), https://inews.co.uk/culture/music/taylor-swift-masters-scooter-braun-selling-rights-music-rerecording-row-explained -76241.
[2] Taylor Swift Discography, ALL MUSIC, https://www.allmusic.com/artist/taylor-swift-mn0000472102/discography (last visited Oct. 13, 2023).
[3] See Nicholas Hautman, Taylor Swift’s Fallout With Big Machine Records, Scooter Braun and Scott Borchetta: Everything we Know, US WEEKLY (Oct. 21, 2022), https://www.usmagazine.com/celebrity-news/pictures/taylor-swift-big-machine-records-fallout-everything-we-know.
[4] Hautman, supra note 3.
[5] Hautman, supra note 3.
[6] taylorswift, TUMBLR, https://taylorswift.tumblr.com/post/185958366550/for-years-i-asked-pleaded-for-a-chance-to-own-my (last visited Oct. 13, 2023).
[7] 6 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 30.03 (Matthew Bender, Rev. Ed.) (“Copyright ownership of the physical embodiment of the performance of a musical composition…is distinct from the ownership of the copyright in the musical composition itself.”).
[8] See F.B.T. Prods., LLC v. Aftermath Recs., 621 F.3d 958, 962 (9th Cir. 2010) (Stating the definition of master recordings in a contract for Marshall Mathers, also known as, Eminem).
[9] Kyle Kim, We Compared ‘Taylor’s Version’ Songs With the Original Taylor Swift Albums, THE WALL ST. J. (Nov. 12, 2021, 10:49 AM), https://www.wsj.com/articles/we-compared-taylors-version-songs-with-the-original-taylor-swift-albums-116363836 01.
[10] Neil Shah, Taylor Swift Releases New ‘Fearless’ Album, Reclaiming Her Back Catalog, THE WALL ST. J. (Apr. 9, 2021, 1:18 AM), https://www.wsj.com/articles/taylor-swift-releases-new-fearless-album-reclaiming-her-back-catalog-11617945524.
[11] Rhea Rao, Explained: Why Taylor Swift is re–recording her studio albums, and what it says about copyright battles with mega music labels, FIRSTPOST (Nov. 16, 2021), https://www.firstpost.com/entertainment/explained-why-taylor-swift-is-re-recording-her-studio-albums-and-what-it- says-about-copyright-battles-with-mega-music-labels-10138211.html.
[12] Scott T. Okamoto, Musical Sound Recordings as Works Made for Hire: Money for Nothing and Tracks for Free, 37 UNIV. OF S.F. L. REV. 783, 789(2003) (Discussing why labels retain control over master recordings); 17 U.S.C § 201(b) (West 2001).
[13] Id. at 791
[14] Id.at 791-92
[15] Shah, supra note 10.
[16] Recorded Music & Music Production: Lobbying, OPEN SECRETS, 2022, https://www.opensecrets.org/industries/lobbying.php?ind=C2600 (LAST VISITED Nov. 21, 2023).
[17] Monica Mercuri, Why Record Labels Are Upset With Taylor Swift’s Success, FORBES (Nov. 3, 2023, 2:20 pm), https://www.forbes.com/sites/monicamercuri/2023/11/03/why-record-labels-are-upset-with-taylor-swifts-success/?sh =62fa15f35933.