By: Evan Mason
How important are the contracts you enter into as a minor? For most, these might include agreements for mobile phone applications or licensing a computer for school. For a fifteen-year-old Taylor Swift, it was signing on to the Big Machine Records for six studio albums, all of which would become multimillion sellers. However, when Swift inked her deal with the label’s founder, she relinquished control over the recordings of her music, along with the rights to license the music, album art, and accompanying videos, paving the way for a public dispute that changed the way the music industry functions regarding artist/record label relations.
Under the Federal Copyright Act of 1976, music copyright is made up of two parts. The first is the composition of the music itself, the aspects that make the song unique, including lyrics and melodies. For example, when you sing or hum a song by your favorite artist, you’re replicating the composition, a copyright the artist always has rights to as it is their original thoughts and ideas. The other copyright component is the master. This is the recorded performance of the work and copies that are distributed to the public and listened to across streaming platforms like Spotify, Apple Music, or YouTube and is usually controlled by the record label. Record deals also typically include clauses that prohibit rerecording for several years to protect their investment. From a practical standpoint, Swift only owned the compositions of her earlier albums while turning over master rights to Big Machine Records.
Shortly after Swift signed her deal with Big Machine Records, the label was sold to Scooter Braun’s company, Ithaca Holdings. The sale included master rights to all six of Swift’s albums. Swift had attempted to buy her sound recordings back from Big Machine Records before the sale but was unwilling to do so at the expense of signing another lengthy contract with the label. When Ithaca Holdings sold the masters to investment fund, Shamrock Holdings, Swift announced she would rerecord her catalogue with Universal Music Group as the sole owner of the masters and composition rights.
For many, the question is why was control over Swift’s masters so important. In the case of Swift, Big Machine Records had the exclusive rights to reproduce, prepare, distribute, and publicly perform Swift’s previous sound recordings. In 2019, Swift announced that she was being blocked from performing any songs from her old albums by Big Machine Records. In addition to master rights, synchronization rights were fiercely contested under her existing record deal structure. Synchronization refers to the use of a song in movies, television shows, video games, commercials, and other visual media. However, before a song can be synched with visuals, both the owners of the master and composition rights must approve or give “clearance.”
The rerecording restriction in Swift’s original deal expired in November of 2020, giving her the green light to invest her time and energy into rerecording her previous discography. However, the legality was unclear to many listeners and fans. Swift’s ability to rerecord comes from §114(b) of the Copyright Act, which states: “The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.” This provision allows Swift to recreate her previous songs without infringing on Big Machine’s copyright, as long as she makes a new recording of each song. To this extent, Swift has been releasing these albums with a “(Taylor’s Version)” annotation at the end to avoid trademark issues of releasing a song with the exact same name and indicate it truly is a new recording.
According to Billboard, since its release, Fearless (Taylor’s Version) has earned over three times as many album units as the originals. Similarly, Red (Taylor’s Version) has achieved 2.86 billion on-demand song streams, while the original Red has earned 476.48 million, exemplifying the immense financial success Swift has received because of owning all the copyright to her work. Swift was also able to redirect all the royalties associated with the licensing of her new work. As the owner of the composition and master, Swift could unilaterally deny or approve the use of her songs in visual media and require they only use the new versions, as the originals would also require approval from Shamrock Holdings.
The battle that Swift underwent with Big Machine Records, while being in the public eye and the most well-known, is not unique to her. The unequal bargaining power and constant struggle between artists and record labels is a reality of many young artists. Speaking out on this issue worked well for Taylor Swift due to her international prestige, but for others, the fear of lost opportunities and damage to their reputation is a considerable problem as the need for exposure looms and highlights the need for effective counsel in this space.
Transactional lawyers in this space must be willing to represent their clients zealously in order to protect their intellectual property rights. Counsel for artists should strive to negotiate contracts where the artist may retain ownership of their master recordings through reversion clauses in contracts. This would ensure master rights could revert to the artists after a specific number of years or if certain profit benchmarks are met. This gives the artist long-term control over their recordings, which could prevent the need to divulge tremendous resources into rerecording their own works, reclaiming their music from the labels. Swift was prevented from rerecording her albums for several years because of a standard clause in her record deal. This restriction allowed to the label to control her previous recordings long after the deal ended. Lawyers should negotiate to shorten the scope of rerecording restrictions, allowing their clients to produce new versions of their work earlier. Swift’s public dispute highlights the importance of the role of intellectual property and transactional lawyers operating within the music industry, because you never know which client may turn out to be the next Taylor Swift.
Student Bio: Evan Mason is a second-year law student at Suffolk University Law School. He is a staff member for the Journal of High Technology Law. Evan received a Bachelor of Arts degree in Political Science from the University of Florida in 2023.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
Photo Credits:
“Taylor Swift 2 – 2019 by Glenn Francis (cropped) 3” by Toglenn (Glenn Francis) is licensed under CC BY-SA 4.0.
“Scooter Braun Interview 2020” by Ashley Graham is licensed under CC BY 3.0.
