Explained: Why Taylor Swift is re-recording her studio albums, and what it says about copyright battles with mega music labels
Taylor Swift’s defence and course of action in her copyright battle against the music label is not water tight. However, her fight is a vital reminder of caution to young artists who often falter in protecting themselves from critical clauses while signing record deals.
In 2019, widely acclaimed singer-songwriter Taylor Swift announced her intention to re-record her first six studio albums (released between 2006 to 2017), that were initially produced by Big Machine Records, an independent record label headquartered in Nashville, US. Swift’s reason for committing to this Herculean task of re-recording almost 108 songs, plus the addition of unreleased “vault tracks”? A quest towards reclaiming the songs sung on her first six albums. In order to make sense of what ensues in 2021, it is important to rewind to June 2005.
At 15 years of age, Swift signed a six-album record deal with Big Machine Records, then owned by Scott Borchetta. Through this deal, Swift effectively gave Big Machine Records full ownership of the masters (i.e. the official recording of a song) of all the music on her forthcoming albums, including videos and album art, licensing them to use it in any way they wished. That left Swift with no control over how, when, and to whom these rights could be sold.
This is why in 2019, when Scooter Braun, manager of Ithaca Holdings, bought Big Machine Records for $300 million, he correspondingly acquired the masters in Swift’s six albums. Swift had no say, even revealing that she was treacherously given no notice of the transaction. Her masters were sold once again in November 2020 to a private equity firm called Shamrock Holdings. Until now, Swift’s attempts to reacquire her masters has not been successful.
Considering that Swift has written, played, and sung each of the songs on these six albums, it is natural to expect that she would exercise full ownership of them. Unfortunately, this is not the way most record deals operate. The usual outcome is that budding artists sign off ownership of their recordings in exchange for monetary support and encouragement from record labels. Record labels promote such deals as a result of the risk taken in the vast amounts of money and time they invest in (usually) young and unknown talent. Swift’s case was no different.
Ideally, once the rights for music are sold, the artist is often helpless. However, Swift’s case is unique as she is a part of the small group of artists, who apart from singing their songs, also play a crucial part in writing them. Thus, having written every single song released in her six albums, she continues to retain the “sync rights” of her music in her legal arsenal.
This is why in a move possibly unprecedented by Ithaca Holdings and Shamrock Holdings, Swift was able to block the use of her songs on all projects which required a "synchronisation license." This license is also the reason why Swift is legally permitted to re-record her masters without being sued for infringement of copyright, albeit for her songs, by Shamrock Holdings. In addition to this synchronisation license, what proves advantageous to Swift is that the clause, barring her from re-recording her songs in her 2005 Agreement with Big Machine Records, has also reportedly expired.
At this juncture, it is pertinent to understand how the copyright of a song works. The copyright laws of the US, which are applicable in the current case, provide for two kinds of music rights. First being "masters rights" and second, "publishing rights" or "sync rights." As briefly explained above, masters rights enable licensees to use the recording of a song. Sync rights, on the other hand, are vital when using music along with a moving image, such as in films and games. Sync rights also include the rights to music compositions. Thus, to legally utilise a song, the producer of a tv show or advertisement would require distinct permissions from both, the holders of sync rights and master rights.
To take an example, for Swift’s music to be played in the background of a movie, a producer would require two licenses to play the recording. First, from Ithaca Holdings considering they have ownership of the masters; and second, from Taylor Swift, considering that the sound played will have to be synced with the moving images of the movie, a process that will require a synchronisation license, a license Swift continues to own. Thus, it would not be incorrect to assume that this practise caused immense economic damage to Ithaca Holdings (who reportedly purchased her masters for a whopping $140 million), greatly limiting their usage of her songs.
Since her 2015 deal with Big Machine Records, Swift has developed a robust "IP Portfolio." She has exercised her rights not only to trademark album titles and famous phrases ('This Sick Beat' and 'Shake It Off'), a practise most celebrated artists follow; but has also trademarked other key elements that form an integral part of her brand and personality, such as amusingly, the names of her three famous cats. Swift has fought massive legal battles, such as with Apple Music in 2015, rallying for the protection of artists’ rights to fair compensation for their work. In 2018, Swift also signed a deal with Universal Music Group. As per this deal, she will continue to own all her masters moving forward.
In March 2021, she released her re-recorded “Taylor’s version” of her first album Fearless. It contains 20 previously released tracks, and seven unreleased tracks. As of April 2021, the album has reportedly sold 500,000 copies worldwide. Her album Red - Taylor’s Version recently released on 12 November, and was given a five-star review by Rolling Stone.
Re-recording her albums means that she will be creating new masters, those that she will have full ownership of. This move, in no way, guarantees that the original versions of her albums, those owned by Shamrock Holdings, will cease to exist. It also does not mean that her relationship with Scooter, Braun, and Shamrock Holdings is out of the woods. Shamrock Holdings will continue to own, use, and earn revenue on these songs through streaming platforms and sampling, amongst many other uses that do not require synchronisation licenses. Further, in the case that Swift declines the use of her re-recorded music, individuals are open to approach Shamrock Holdings for the use of her masters. However, what the re-recorded albums have achieved, and will continue to achieve, as admitted by Swift, is “diminish the value” of her old masters.
It is undisputed that legally, Swift’s defence and course of action in this particular case is not water tight. However, her fight against Braun and Borchetta are vital reminders of caution to young artists who often falter in protecting themselves from critical clauses while signing record deals. Looking at the music scenario from an Indian lens too, in 2020, India saw a 34.1 percent growth in independent artists. In a country that boasts of music associated mostly with films, especially Bollywood, it has been refreshing to watch the rise of new homegrown talent.
While this huddle of independent artists continues to flourish and accelerate their careers by collaborating with renowned record labels, it is pertinent for them to recognise that whilst the pie must be shared, they should not be left rummaging for the crumbs.
It is thus in this background of growing young artists that Swift’s battles gain even more prominence. They create dialogue and awareness around the importance of legally safeguarding one’s art. Additionally, they call for record labels to ensure equitable deals structured on mutual respect and security. Swift’s actions hopefully signal the start of a new era, wherein whilst dealing even with upcoming artists who lack negotiation power, record labels will remain cognisant of the fact that their business function ultimately because of the artists themselves. Their relationship is that of skin and bone, one being rendered useless without the other. This move could also inspire powerful artists to restructure and renegotiate their own contracts by leveraging their fame, in turn forcing record labels to grant artists greater control over their work.
Long story short, Swift’s re-recordings mark the fortification of a recurring message that she has advocated to young artists throughout her incredible music career, “You deserve to own the art you make."
Rhea Rao is a final year law student studying at Government Law College, Mumbai.
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