If you are a pop fan, it would not be news that in the past year, singer Taylor Swift has been re-recording her old albums and re-releasing them by adding “(Taylor’s Version)” to the song titles. The addendum to the title indicates that it is a new version of an old song that she re-recorded. While many speculated this was a move to make more money, the reason runs deep into the concepts of copyright and the moral rights of artists in Intellectual Property.
When a musician writes a song and composes a tune to it, the song is protected under copyright and the artist is conferred certain rights as the copyright holder. A “musical composition copyright” protects the lyrics and notations of instrumentals used in a song. The artist also owns “master rights” over the song. Master rights refer to the rights including the right to reproduce, distribute, collect royalties, make the recording available and perform the final recorded version of the song or the “master” track. In a nutshell, a master track can be called the first-ever original version of a song. In addition to master rights, the artist has publishing rights that include publishing and distributing the song on various platforms; economic rights that allow the artist to make a profit from their song and moral rights that include the right to be credited for the usage of their work and not use or alter the work in a way that is prejudicial to the artist.
The artist can now choose to give away a few of these rights to a record label. This is called licensing. The main question that would arise is why would artists choose to give away a few of their rights to a song that they created for a company. A big record label deal would mean more exposure, collaborations with famous artists, more royalties over the sale of their songs and better marketing. Sacrificing certain rights would be the price to pay for fame.
But most of the time, big record labels look for an opportunity to make money. This coupled with the lack of legal awareness and representation of budding artists leads to biased record deals that put the artists in an unfavourable position so much so that they lose the ownership of the very song that they have created. This is exactly what happened in the Taylor Swift case.
As a young teenager who was just starting out, Taylor Swift signed a deal with the Big Machine record label under which she recorded six albums. As per the contract, she signed her master rights to the label in exchange for monetary consideration and resources to produce her albums. Her contract with the label was expiring in 2018 and she wanted to renew the contract with Big Machine provided they gave her the ownership of her six albums and the master rights of all future albums she would record in the future. However, the album counter-offered with the term that Swift could “earn” each of her old albums one at a time for every new album she would make under the label which was unacceptable to Swift. Taylor Swift left the label in 2018, leaving behind her master tracks with the label in perpetuity due to the initial contractual clause, after which the Big Machine record label was sold to Scooter Braun, a record executive who in turn sold the label to Shamrock Holdings, inclusive of Swift’s albums. But why is it important to own the master track? Owning master rights would give more freedom to license it to any platform the artist wants and make more royalties in contrast with the label owning the master track and taking away a huge chunk of the profits the song makes. Owning an artist’s catalogue would add to the reputation of the label and the label would also get a say in when the songs of an artist should get released. There also have been instances wherein the record label has stopped artists from releasing songs as well.
If another company is legally owning Swift’s songs, then how did Taylor Swift re-record it? While signing the initial contract, a clause suggested that Taylor Swift owned the musical composition copyright which covers the lyrics, beats and notations of instrumentals. She also had publishing rights over the songs she wrote. However, she could not re-record using this copyright until 5 years after the release of the song or 2 years after the expiration of her contract in 2018.
Furthermore, §106 of the Copyright Act, of 1957, followed in the United States bestows exclusive rights in copyrighted works that the owner of a copyright has the exclusive rights to do or authorise reproduction of work, derivative works, distribute copies, perform the work publicly and transfer the ownership or sell the work. § 114(b) of the Act deals with the scope of exclusive rights in sound recordings and states that the exclusive rights mentioned in §106, especially the derivative work are limited to works in which “the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality.” Under this section of the Act, augmented by the aforementioned contractual clause Taylor Swift could re-record new tracks as she had the musical composition copyright with altered quality in her songs and re-release it being the complete owner of the re-recorded tracks.
Taylor Swift has not been the only artist who has re-recorded songs to reclaim rights over her songs. The Everly Brothers, The Beatles, Prince and Frank Sinatra too have indulged in legal battles to own their master tracks. This practice of re-recording songs to reclaim rights over a person’s creation is not uncommon in the Hollywood music industry. This phenomenon concerning the monstrosity of record labels that look forward to exploiting young talents shakes and causes a travesty of the very course of Intellectual Property Rights that seeks to protect the artist and his or her creation. Ensuring that artists understand the legal implications of contracts concerning their copyrights becomes imperative. Having a balanced contract that ensures the rights and interests of both parties are well-balanced is the key to achieving harmony in issues relating to copyright assignment or licensing.
Authored by: Ms. Chinmayee Hegde
Penultimate year law student at PES university.
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