(Source)
Taylor Swift is often thought of for her descriptive lyrics, thought-provoking music, and elaborate concerts. However, Swift also has a substantive impact on legal scholarship in the music law world. When the artist entered a dispute with the owner of the master recordings for six of her albums, it sparked conversation and controversy among producers, artists, and lawyers in the music industry. For signed artists, the master recording of their songs usually belong to their record label, as the label finances the creation of the song. In 2019, after a disadvantageous switch of ownership at her label, Swift attempted to buy back the rights to her masters, to have full financial and legal control of her songs. The label, Big Machine Records, refused to sell her the rights.
In retaliation, Swift decided to re-record the albums that Big Machine Records owns. In solidarity with the artist, many of her fans choose to listen to the new versions of the albums instead of the original ones. The artist makes millions of dollars off of these re-recorded albums a month. In response, record producers are pushing for contracts to forbid artists from re-recording for up to thirty years, and some artists are even prohibited to re-record indefinitely. On one hand, record labels use their foothold in the industry to invest time in new artists by developing, marketing, and distributing their work. It is justified that they feel entitled to the profitability of that work. However, an artist’s choice to re-record may bring something new to the original work, and therefore, this new work may have new benefits to society.
To understand this dispute, it is important to understand which party owns the right to re-record a song. Every song that is recorded has two copyrights attached to it. The first is the publishing rights, which belong to the music composer (often the artist herself). When the composer’s sheet music is used in a song that is released to the public, the composer has the exclusive right to make records from the composition. This license results in royalties for the composer, which may be negotiated with the record company.
Another type of copyright that is attached to a song is a license called “the master recording rights.” The master recording rights attach when a sound recording is “fixed” in a permanent form, like an audio recording. If the author is signed to a label, the master recording rights holder is often the record label. The holder of the master recording rights can authorize or prepare a derivate work in which the actual sounds in the master sound recording are used. For example, the master recording rights holder may authorize remixes and re-arrangements of the original work. A district court in Oregon held that “sound recordings and musical compositions are separate works with their distinct copyrights.”
A re-recording of a musical work is an entirely new sound recording. A re-recording involves performing the same composition of the original song over again but recording it in a new fixed medium. This means that the only person who can control a re-recording is the publishing rights holder, which is the composer or songwriter. Record labels notoriously dislike re-recordings of songs, as they take away from royalties that record labels can earn with their sound recording. Often, when a record label is negotiating with an artist to sign them onto the label, they input provisions in the contract to stop the artist from being able to re-record songs for a fixed period. This method is employed so that labels can ensure “ that artists are maintaining exclusivity with them and are [not] from competing with the record label by re-recording.”
Typically, when a new artist signs with a label, their lack of bargaining power enables the label to use contracts to exert control over sound, style, and even lyrics from the artist. As a result, record labels typically set the terms and conditions of artist contracts in their favor, including cover art, the type of music recorded, and the profit the artist makes. Traditionally, re-recording provisions require artists to wait five to seven years from the initial release or two years after the contract expires to re-record their music. After the publicity of the Taylor Swift dispute, many record labels are using their bargaining power to increase the length of their re-recording provisions, some even lasting from thirty years to perpetuity.
However, re-recording provisions may have policy implications in the intellectual property world. A goal of IP law is the “promotion of the useful arts”. Re-recordings of musical works may be considered as furthering useful arts, as there is a lot of public satisfaction and enjoyment with re-recorded work. Since their release, Fearless (Taylor’s Version), Red (Taylor’s Version), Speak Now (Taylor’s Version) and 1989 (Taylor’s Version) have overtaken their original versions in total streams and total sales. All four of the re-recorded albums soared to the number-one spot on the Billboard 200. In December 2023, Swift’s Eras tour, which features her re-recorded albums, became the first tour in history to make one billion dollars. Musicologists have found that Swift’s re-records showcase a change in her voice through time, including a more “breathy, chest-driven singing”; this new vocal change in her re-records may have a different appeal to fans than the original albums. Fans enjoy listening to re-records, so allowing record labels to contract away re-recording rights may infringe on the promotion of useful arts.
Is this enough to ban re-recording provisions? Technically, recording labels (and artists) have the right to negotiate terms in their contracts. The constitutional freedom to contract is extremely respected in America, and states may only regulate private contacts if there is a “reasonably designed and appropriately tailored to achieve a legitimate public purpose”. The bargaining power disparity may not be enough to “shock the conscience” and render re-recording provisions void as a matter of law through unconscionability. Therefore, it is unlikely a statute will be implemented to resolve this issue (or, at least not anytime soon).
A more immediate solution might be to give more young artists resources for legal representation in contract negotiation scenarios. There should be more organizations like Volunteer Lawyers for the Arts, which provides low-income artists with pro-bono representations. These organizations should be backed with state or local funding to best support them. There are also several law schools, such as Harvard, Chapman, Vanderbilt, and Cardozo, that enable law students to provide supervised help to artists who cannot afford legal representation. These clinical programs should be better publicized in the music industry. With all of these organizations well-positioned to represent low-income artists, there is sure to be less bad blood in the industry when it comes to re-recording provisions.
Suggested Citation: Shaina Zargari, Better Than Revenge: The Rise of Re-Recording Provisions in Artists’ Contracts, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Oct. 25, 2024), https://jlpp.org/better-than-revenge-the-rise-of-re-recording-provisions-in-artists-contracts/.
