Saaman Moghadam
Last week, Taylor Swift released Red (Taylor’s Version), a rerecording of her 2012 studio album, Red. It is the second in what will presumably be a six-album series of rerecordings of her early work—and part of a roundabout attempt to regain ownership of her back catalogue. To understand the significance of Swift’s decision to create entirely new recordings of these songs, we must understand both the tricky way in which music copyright functions and the transactional history of Swift’s musical output.
There are two forms of ownership behind any piece of recorded music—ownership of the musical work (i.e., the words, melody, and composition) and ownership of the sound recording itself.[1] Typically, the holder of the copyright in the musical work is the composer of the work, though a music publisher may purchase the copyright from the composer and exercise that right.[2] The copyright in the sound recording may be held by the recording artist, background musicians, and/or the record label.[3] However, it isn’t uncommon for ownership of the sound recording to go entirely to the label.[4]
From 2005 to 2018, Taylor Swift was signed to Big Machine Records, an independent record label.[5] Under the terms of their contract, Big Machine owned the masters—the original recordings from which all other copies, such as the versions that are streaming on platforms like Spotify, are derived—of Swift’s songs.[6] In 2019, Ithaca Holdings, Scooter Braun’s holding company, acquired Big Machine Records, giving Braun ownership of all of the sound recordings produced under the contract between Swift and Big Machine.[7] In 2020, Braun sold the master recordings to the investment firm Shamrock Capital Advisors LLC.[8] The takeaway: Taylor Swift does not, and never did, own the master recordings for any of the six albums she released through Big Machine.
In November of 2020, however, a key restriction in Swift’s original contract with Big Machine Records, preventing her from rerecording any of those songs, expired.[9] At this point, she announced her intention to do just that—rerecord the songs from those first six albums and take back ownership of those songs.[10]
To be clear, Swift still doesn’t own the sound recordings used in the original versions of her albums—those continue to belong to Shamrock Capital Advisors. But under her current deal with Republic Records and Universal Music Group, she will own the masters of everything she records, going forward.[11] And since she also has the copyright to most of the underlying musical works in her back catalogue, she effectively has complete ownership of the new versions of these tracks.[12]
Why is this so important? For one thing, someone wanting to use a Taylor Swift song in a film or television show would have to get approval from both the owner of the musical work and the owner of the sound recording—either one of those parties has the power to deny the request.[13] Therefore, Swift could theoretically deny all requests to use the original versions of the songs and only grant licenses to the rerecorded versions. This, in turn, could potentially diminish the value of those original masters significantly.
Swift’s workaround has been an undeniable personal success—the rerecorded songs are streaming in higher numbers than their original counterparts and are already landing the artist licensing deals.[14] But labels have begun to adapt accordingly. In recent agreements, Universal, Swift’s own label, has been extending the duration of the term during which its artists are restricted from producing such rerecordings.[15]
Still, Swift’s gambit has encouraged other artists to take control of their masters or otherwise rerecord their songs; it’s a notable moment in the ever-evolving relationship between artists and the industry in which they operate.[16]
[1] Kyle Kim, We Compared ‘Taylor’s Version’ Songs With the Original Taylor Swift Albums (November 12, 2021), https://www.wsj.com/articles/we-compared-taylors-version-songs-with-the-original-taylor-swift-albums-11636383601.
[2] Brian T. Yeh, Copyright Licensing in Music Distribution, Reproduction, and Public Performance (CRS Report No. RL33631) (September 22, 2015), https://sgp.fas.org/crs/misc/RL33631.pdf.
[3] Id.
[4] Emma Lord, Taylor Swift May Have Changed The Music Industry — Again (Aug. 27, 2019), https://www.bustle.com/p/taylor-swifts-feud-with-scooter-braun-may-have-changed-the-music-industry-18538527.
[5] Raisa Bruner, Here’s Why Taylor Swift Is Re-Releasing Her Old Albums (March 25, 2021), https://time.com/5949979/why-taylor-swift-is-rerecording-old-albums/.
[6] Id.
[7] Jem Aswad, Taylor Swift’s Masters, Scooter Braun’s ‘Bullying’: Inside the Big Machine-Ithaca Deal (June 30, 2019), https://variety.com/2019/music/news/taylor-swifts-masters-scooter-brauns-bullying-inside-the-big-machine-ithaca-holdings-deal-1203256640/.
[8] Anne Steele, Taylor Swift’s Early Music Catalog Changes Hands Again (November 16, 2020), https://www.wsj.com/articles/taylor-swifts-early-music-catalog-changes-hands-again-11605582712.
[9] Kyle Kim, We Compared ‘Taylor’s Version’ Songs With the Original Taylor Swift Albums (November 12, 2021), https://www.wsj.com/articles/we-compared-taylors-version-songs-with-the-original-taylor-swift-albums-11636383601.
[10] Shannon Carlin, Taylor Swift Just Revealed When She'll Re-Record Her First 5 Albums (August 22, 2019), https://www.bustle.com/p/taylor-swift-revealed-when-shell-re-record-her-old-albums-its-sooner-than-you-think-video-18689552.
[11] Id.
[12] David Clark, Seeing “Red”: Taylor Swift and the Dueling Copyrights in a Song (November 18, 2019), https://www.genericfairuse.com/2019/11/18/seeing-red-taylor-swift-and-the-dueling-copyrights-in-a-song/.
[13] Kyle Kim, We Compared ‘Taylor’s Version’ Songs With the Original Taylor Swift Albums (November 12, 2021), https://www.wsj.com/articles/we-compared-taylors-version-songs-with-the-original-taylor-swift-albums-11636383601.
[14] Anne Steele, As Taylor Swift Rerecorded Her ‘Red’ Album, Universal Reworked Contracts (November 12, 2021), https://www.wsj.com/articles/as-taylor-swift-rerecorded-her-red-album-universal-reworked-contracts-11636741201.
[15] Id.
[16] Id.