Artists and IP Scholars are all looking at one thing: Taylor Swift

by Ben Delaney

The first time I heard the name Taylor Swift, she had just released her 2008 blockbuster album Fearless and the first hit from that album, “Love Story,” was just hitting the airwaves. While the angst of my much younger self was turned off from the pop star, these days I eagerly await the re-release of Fearless. This is because the upcoming re-release is, in some sense, showcasing a “quirk” of the U.S. copyright system with relation to the music business. This article will briefly examine Swift’s battles with music ownership, and the possible implications her battle has on the music industry.

In the United States, copyrights to music are split between the music composition (the written material) and the sound recording (the original audio file). When Swift signed her first contract with the record label, Big Machine Records (BMR), in 2005, she owned her music compositions, while BMR owned the sound recordings of her first six albums. This type of deal is quite common, albeit controversial. After the release of her sixth album, 2017’s Reputation, she signed with Republic Records, a subsidiary of Universal Music Group. Under this new deal, she owns both her music compositions and her sound recordings released by Republic.

Since joining the new label, she has actively voiced a desire to buy back the sound recordings owned by her former label. This desire was further compounded by the news that BMR was sold to a third party and a long-time Swift enemy: Scooter Braun, who would later go on to sell it again in November 2020 – but not to Swift. Now, while legal experts agree that Swift is unable to sue Braun to get her masters back (before he would eventually sell them again), the fascinating part is how Swift is choosing to “reclaim” her masters.

A standard provision in recording agreements is a re-recording restriction, meaning the artist cannot create new sound recordings to circumvent the label. This restriction typically lasts either 5 years from the commercial release of a recording, or 3 years after the delivery of the last album in the contract. Swift has indicated that this restriction no longer applies to her, as her contract with BMR contained the latter option. So, as of November 2020, three years have passed since the release of her last album with BMR, Reputation. However, instead of fighting with the owners of her older sound recordings, she has decided to simply re-record them, thereby creating new sound recordings that she will own as per her contract with Republic, which are based on music compositions that she already owns as part of her original deal with BMR.

Music industry lawyers have weighed in on Swift’s decision, with one in particular opining that it would not necessarily be a problem for Swift due to her popularity, but that she will cut into income streams from BMR, operating as its direct competitor. Ultimately, while there are the inevitable downsides, the expectation is that the re-release of Swift’s earlier albums will be smash hits that are loved by millions.

Also important to note is that, while it remains uncommon for an artist to re-record old music and create new sound recordings, Swift is hardly the first artist to adopt such an approach. Musicians from across time and genres have successfully done this, from The Everly Brothers in the 50’s and 60’s, to rock bands like Def Leppard, and more contemporary artists like Jojo have all re-recorded material to own new masters. What is important about Swift’s story is the sheer influence she has over the contemporary media landscape. The re-releases may not make as much of an impact as when they were first released, but it will have given Swift exactly what she wants, i.e., total ownership of her music. The aspiration is that, moving forward, Swift’s battle encourages artists, and those who work with artists, to think more critically about rights to an artist’s work and avenues they can take to better control their work to their benefit. Combining this with the type of unique talent that is found every day around the world will hopefully produce a richer ecosystem of popular arts.