ACIPR Logo

Alliance Center for
Intellectual Property Rights


RE-RECORDING AND RECLAMATION OF COPYRIGHTS BY ARTISTS: THE CASE OF TAYLOR SWIFT

January 3, 2024

*Ms. Maitreyi Choalla

INTRODUCTION

Revisions to music contracts, particularly the "re-recording restriction clause," were reportedly considered by several big record labels, including those like Sony Music Entertainment and Universal Music Group. The well-known pop artist Taylor Swift continues to re-record her previous album songs, which has given reason for concern about the devaluation of original music. Her calculated approach is thought to have prompted other musicians who work independently to think about re-recording their albums to take back master song ownership.

Intellectual Property Law in the Music Industry

Recording Contracts

A recording contract or a record deal is a contract governing the relationship between an artist and a record label concerning ownership, production, distribution, and promotion. They often contain a ‘re-recording restriction’ clause that species the artists' re-recording rights after the record label's contract terminates, which protects the heavy investments made by record labels. These contracts also specify a certain waiting period, prior to which these artists cannot re-record their music once they leave that record label. Further, they may also include a clause to restrict re-recording if they are significantly like the master song versions. Contractual dynamics in the music industry can be traced back to CBS Songs Ltd vs Amstrad Consumer Electronics Plc, where artists were to retain ownership of their work as independent contractors of recording labels who solely exercise a distribution licence.

Copyrights of music

A copyright is granted protection once a creative work is expressed tangibly- song lyricization and music recording, which are assignable by the owner or creator. While song lyrics are a literary work, music composition is a musical work; recording is a master recording work. The ownership of this music is dependent on contractual or employment agreements between artists and record labels. Currently, as per Copyright laws in the United States, to lawfully use a song, one requires permission from those holding the Master rights, the authority over the final recorded song, as well as publishing rights, the right in underlying compositions, like lyrics or the melody of the song, which the creator usually holds.

Taylor Swift's Re-Recording Journey

Upcoming artists make record deals with giant labels for financial support. During her career’s early stages, she signed contracts with Big Machine Records that granted the latter full ownership of her master recordings on all her work, which could be further sold to anyone. She could not acquire her masters back, and they were sold off to Ithaca Holdings and subsequently to Shamrock Holdings. This leaves an artist who has put in the labour to write, compose, play, and sing a song in a dire, helpless situation.

The situation worked in Taylor Swift’s favour, as she could retain synchronization rights and permission required to sync music with visual media. These rights over underlying compositions gave her the authority to block usage of her songs by media productions and lawfully re-recording her master songs without constituting a copyright infringement from Shamrock holdings. Further, her prescribed waiting period as per the ‘re-recording restriction’ clause in the record label with Big Machine Records had also expired. Due to this, she could successfully release re-recorded versions of her albums- Fearless in April 2021, Red in November 2021, Speak Now in July 2023 and 1989 in October 2023 as per the mechanisms given under Section 115(A)(2) of the US Copyright Act, 1976. By releasing these re-recording albums, she created new master songs with full control and ownership rights over them. While Taylor may not have acquired ownership of her original songs, encouraging her huge fanbase to listen to her re-recorded master songs essentially aims to devalue those original master recordings owned and controlled by Shamrock Holding.

Indian Perspectives on Safeguarding Copyrights

The question remains if it is lawful for Indian artists to re-record their master songs to regain control and ownership over them as Taylor Swift did. The answer to this remains in Section 14(e) of the Copyrights Act, 1957. Under this provision, exclusive economic rights are granted to the copyright owner of a sound recording; this includes the right to a commercial licence, the right to assign the copyright, the right to communicate it to the public, and the right to create any sound recording encompassing it. However, the term copyright owner, in such a case, would typically imply a recording label, whose consent is required to be obtained by the artist for the purposes of re-recording. Further, a cover version or a new recording of a previously recorded song with a slight change of style can also be made under Section 31C of the Copyrights Act, 1957, but even this necessitates obtaining permission from the original copyright owners also mandates statutory licensing.

It is, thus, clearly evident that Indian artists need permission from the recording labels to re-record their master songs or even make cover versions of them. In the Bollywood-on-Indian music industry scenario, with artists having no rights over underlying compositions, it places the artist as a weaker party, creating an imbalance in the contractual relationship entered with these big profit-making recording labels.

Implications for Artists Globally

This act of re-recording original music songs by artists can have several legal implications for the music business. Taylor’s experience shows that upcoming independent artists need to carefully assess their re-recording rights in their contracts with record labels. These rights extend to both master recording and publishing rights and must be negotiated separately. It, however, for the most part, also depends on the copyright laws existing in the artists’ respective jurisdictions. Music artists shall ensure that they do not re-record their album songs if their domestic laws mandate authorization, as it would lead to infringement to original rights holders. Further, re-recording involves much expense and labour, artists need to carefully weigh in such complexities.

Conclusion

Taylor Swift's decision to re-record her earlier albums reflects a growing trend among artists to assert greater control over their creative works and financial destinies. This case is pivotal in the ongoing conversation about artists' rights and the power dynamics between musicians and record labels. Taylor Swift's journey highlights the importance of advocating for artists' rights in the face of evolving technological landscapes and changing consumption patterns. As the music industry continues to transform, it is crucial for artists to navigate these changes while safeguarding their creative legacies.

This showcases the legal considerations that dictate the association between record labels and artists and the importance of intellectual property law to the entertainment sector. Considering evolving global standards and the significance of India's involvement in this matter, it is also vital to consider the obstacles faced by Indian vocalists and the necessity of reassessing domestic copyright regulations. Hence, by analysing the legal considerations that impacted Taylor Swift's decision and the aforementioned background information concerning master recording rights, it is feasible to suggest a potential course of action for musicians in India and around the world who face comparable challenges. This would require persistently advocating for modifications in copyright legislation, negotiating and revising terms with record labels, investigating alternative distribution models, and, most importantly, cultivating a significant and dedicated fan following.

References:
  1. Chris Castle, Re-Recording Restrictions: A Glossary Of Industry Terms, Hypebot, https://www.hypebot.com/hypebot/2019/08/re-recording-restrictions-a-glossary-of-industry-terms.html (last visited Dec 4, 2023).
  2. Ashurst, Reclaiming Copyright Ownership: Why Taylor Swift Doesn’t Need Romeo to Save Her, Lexology, https://www.lexology.com/library/detail.aspx?g=4c0bf60e-66b0-4f70-ac02-ccf264f84816 (last visited Dec 4, 2023).
  3. Anthony Pericolo, Bad Blood© with Taylor Swift’s Album Re-Recording, Harvard Journal of Law & Technology, https://jolt.law.harvard.edu/digest/bad-blood-with-taylor-swifts-album-re-recording (last visited Dec 4, 2023).
  4. Melissa Torres, Copyright Law (Taylor’s Version), | Washington Journal of Law, Technology & Arts, https://wjlta.com/2023/03/07/copyright-law-taylors-version/ (last visited Dec 4, 2023).
  5. Rhea Rao, Explained: Why Taylor Swift Is Re-Recording Her Studio Albums, and What It Says about Copyright Battles with Mega Music Labels, Firstpost, 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 (last visited Dec 4, 2023).
  6. 17 U.S. Code § 115 - Scope of exclusive rights in nondramatic musical works: Compulsory license for making and distributing phonorecords | U.S. Code | US Law, https://www.law.cornell.edu/uscode/text/17/115 (last visited Dec 4, 2023).
  7. 14. Meaning of copyright., India Code: Section Details, https://www.indiacode.nic.in/show-data?actid=AC_CEN_9_30_00006_195714_1517807321712&orderno=14 (last visited Dec 4, 2023).
  8. 31C. Statutory licence for cover versions., India Code: Section Details, https://www.indiacode.nic.in/show-data?actid=AC_CEN_9_30_00006_195714_1517807321712&orderno=37 (last visited Dec 4, 2023).
Author:

* Ms. Maitreyi Choalla
4th year Law Student, Gujarat National Law School.

Disclaimer: The opinions expressed in the article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of the Alliance Centre for Intellectual Property Rights (ACIPR) and the Centre does not assume any responsibility or liability for the same.