(Hypebot) — Taylor Swift’s recent release of a compilation of her re-recorded songs has done much more than make her fans happy.
A guest post by Emilia James of Berklee College of Music: The Music Business Journal
Taylor Swift is a household name that has been making headlines and breaking records in the music industry for over fifteen years. As an artist, she has moved seamlessly across genres and constantly reinvented herself and her work, but not without controversy. In her teenage years, constant headlines revolved around Swift’s love life and ex-boyfriends. However, the biggest headlines involving Swift and another man started in 2019 when Scooter Braun’s Ithaca Holdings acquired Big Machine Label Group, and subsequently Swift’s entire discography of master recordings.[i] After much public disdain from both parties and music industry figures picking sides with either Swift or Braun, Swift decided to take an unprecedented move. She vowed to re-record her six-album discography purchased by Ithaca Holdings.
On November 12, 2021, Taylor Swift released the highly anticipated Red (Taylor’s Version). This was the second re-release of a previous album, the first being Fearless (Taylor’s Version), released on April 9, 2021. Upon release, Red (Taylor’s Version) broke the record on Spotify for the most-streamed album by a female in one day.[ii] In addition, the album also led to Swift breaking the record for most-streamed female in a single day.[iii] Why does this matter for the broader music industry, and not just devoted fans excited for never before heard vault tracks and a public forum for bashing Jake Gyllenhaal? Swift’s move to re-record her music to own her master’s makes way for artist empowerment public support of artist rights of ownership, and it holds significance regarding copyright law.
Negotiating Interests And Empowering Songwriters
When an artist signs with a record label, they typically must agree to sign over copyright ownership of their albums to the record label as part of the deal. The record label will commercially exploit the album in exchange for copyright ownership, and an artist will receive royalties from it. An artist cannot gauge the commercial success value of their work when negotiating their contract, making it possible for an artist to agree to royalties that are potentially lower than what they deserve. If their work proves to be a hit that stands the test of time, they could be missing out on a lot of the profits from the sound recordings of their work. Most recording contracts, including Taylor Swift’s, have a clause that states for a period of time (typically five years)[iv] artists cannot make new recordings of the songs featured on the sound recordings or master’s held by the label once they leave. However, Swift’s major success with her re-recordings can now empower artists to negotiate with record labels. For example, when discussing royalties, if an artist does not feel like they are getting what they deserve, they could use Swift’s example as a bargaining chip to increase royalties. Wouldn’t the record label rather pay a higher artist royalty rate for the duration, instead of one day having the value of their recordings greatly diminished due to new recordings? In Swift’s case, she makes her new recordings incredibly enticing as she has released multiple “Vault Tracks” of songs that were considered for the original albums but did not make the final cut.
Getting Fans (And the General Public) Engaged
It is impossible to deny the power Swift holds with public opinion. With such a massive fanbase of “Swifties,” they will endlessly defend her on social media platforms and beyond if she puts out a rallying cry. This power has helped bring public awareness of artist ownership and the struggle many successful artists have in owning their work. Like Swift, Sir Paul McCartney famously tried to purchase the Beatles’ catalog several times but lost out to higher bidders. The general public does not know the ends and outs of the music industry and common language and terms of a record deal. Therefore, it is reasonable to assume they are not aware that artists do not own all their work nor receive the highest level of compensation for it. Swift’s public broadcasting of this issue has helped educate the general music consumer on industry practices. When speaking on this issue, Swift stated, “When I stood up and talked about this, I saw many fans saying, ‘Wait, the creators of this work do not own their work, ever?’ I spent ten years of my life trying rigorously to purchase my masters outright and was then denied that opportunity, and I just don’t want that to happen to another artist if I can help it.”[v] There have been several artists who have successfully gained ownership of their master recordings. Jay-Z, Rihanna, U2, LL Cool J, and Frank Ocean are among some of the notable artists who have openly gained ownership of their master’s and support other artists’ efforts to do so.[vi] They have shown they are willing to pay a significant sum to obtain this level of control of their work.
Weighing the Possibilities
With Swift’s level of success in her first two re-recordings, a valid question is posed: Would the copyright owners of the original albums have made more money by selling Swift’s catalog to her outright? The original albums are still making money, but will the profits Swift is receiving from the new recordings outweigh what could have been made by selling to Swift all along? Only time will answer this question. It is reasonable to assume Braun had this same question because just as Swift was beginning the re-recording process, his Ithaca Holdings sold Swift’s catalog to Shamrock Capitol, an investing firm.[vii] Early numbers demonstrate the diminishing value of her original recordings compared to the new ones. The first re-recorded single released was her smash hit “Love Story.” When “Love Story (Taylor’s Version)” was released, it had 10,000 downloads in the first 24 hours, while the original version was downloaded only 200 times in that same period.[viii] As a writer of every song in her catalog, Swift holds the upper hand in earning income from licensing her music, as she can deny any request made to license the old versions of her songs. In an interview with Billboard, Swift said, “Thankfully, there’s power in writing your music. Every week, we get a dozen synch requests to use ‘Shake It Off’ in some advertisement or ‘Blank Space’ in some movie trailer, and we say no to every single one of them.”[ix] The owners of her original recordings stand to lose a lot of potential licensing deals if Swift continues only to license the new recordings.
Potential Impact on US Copyright Laws
Swift’s journey of re-recording and releasing new versions of her old albums could potentially impact the significance of a particular section of US copyright law. The Copyright Act states, “In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination….”[x] This termination right can be enacted at any time during the five-year window of thirty-five years to forty years after the transfer of the assignment.[xi] Once the termination takes effect, “all rights under this title that were covered by the terminated grants revert to the author, authors, and other persons owning termination interests…”[xii] The termination right holds little significance for some artists because their music is not steadily earning income thirty-five years after its release. Some artists may not even be living this long after releasing their music. (The termination right can also be enacted by an artist’s heir that could stand to benefit from this income.[xiii]) However, like the Beatles, for an artist of Swift’s level of success, their catalog could be making considerable money even this long after its release. Suppose Swift’s path of re-recording becomes more commonplace with successful artists. In that case, it will decrease the significance of the termination right because the value of the new sound recordings will most likely outweigh that of the old ones. When the time comes to terminate the transfer of copyright of the original album’s sound recordings, it will not be as crucial of a moment for an artist because they have already been profiting off the re-recorded albums.
In conclusion, whether a fan of Swift or not, it is impossible to deny the impact she has made and will continue to make in the music industry. In addition, NYU’s prestigious Clive Davis Institute recently launched its first-ever academic course on Taylor Swift, further demonstrating her significance to the music industry.[xiv] Her unprecedented plight of re-recording her old discography has the power to both break records and break glass ceilings.