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Battle of the Masters: Rerecording Issues in Copyright

Written By: Laura Odujinrin[1]

Earlier this week, musician Taylor Swift released a rerecorded single from her 2008 sophomore album, Fearless.[2] The rerecorded song is part of a new album, aptly named, Fearless: Taylor’s Version, and it will be just one of many rerecorded albums that Swift plans to release, giving Swift a new set of master recordings that she will own the full copyright to and have control over.[3] This move raises a few legal questions. Why doesn’t Swift already own the copyright to the master recordings of songs she wrote and composed, and how is she able to rerecord and release nearly identical versions of old records without breaching copyright?

Music’s Two Copyrights

Songs have two copyrights: a “musical composition,” which includes the music composition and lyrics, and a “sound recording,” which is the recorded version of the song, also known as the master recording.[4] The two copyrights are often held by different entities. The musical composition copyright is held by the person(s) who primarily wrote the lyrics and music,[5] and the sound recording is often held by the record label.[6] As a result, the two copyrights function independently, and permission from both the owner of the musical composition copyright and the sound recording copyright is required to license a song.[7] In Swift’s case, as the primary writer of her songs, she owns the musical composition copyright, and her previous music label, Big Machine, owns the sound recording copyright.[8] This means that any third party seeking to license a song from one of Swift’s first six albums recorded while she was signed with Big Machine needs permission from both Swift and Big Machine to do so.

Rerecording Copyrighted Music

Recording contracts typically include rerecording clauses, which “almost always restrict artists from rerecording musical compositions embodied on the label’s recordings for a number of years after the expiration of the recording agreement.”[9] Often, “rerecording those songs is prohibited until ‘the later of two years following the expiration of the agreement or five years after the commercial release.’”[10] Once the rerecording clause has expired, the artist is free to record new covers of their original songs. These new songs, like their original counterparts, will have a musical composition copyright and a sound recording copyright. Swift, as the primary writer of her songs and owner of the musical composition copyright, can fairly easily begin rerecording all of her old albums and creating a second set of master recordings of which she will own the sound recording copyright.

The Battle of the Masters

What happens when there are two nearly identical master recordings? From a licensing standpoint, Swift would be able to refuse to grant the musical composition copyright unless the licensee uses her new master recordings. This would mean that any television show, commercial, or movie, for example, would only be able to license the second set of master recordings, making the first set significantly less valuable.[11] On streaming sites, both versions will be available, and “while Swift can’t do anything to take the original [master recordings] off the sales and streaming market, what she can do is push the original versions down in rankings and search results as the new versions are embraced by her fans.”

The Future of Music Copyright

Swift joins a small group of artists who have rerecorded their songs to take back control of their masters. After Prince and Def Leopard rerecorded some of their previous hits, the recording industry was quick to react, making rerecord clauses standard in recording contracts.[13] It is unclear how the music industry will react once all of Swift’s rerecorded albums are released, but with money, creativity, and ownership at stake, both artists and labels will fight to protect their rights to music copyright.

 

[1] Laura Odujinrin is a 2022 J.D. Candidate at the University of San Francisco School of Law.

[2] Chris Willman, Taylor Swift Sets ‘Fearless: Taylor’s Version’ as First in Her Series of Full-Album Do-Overs, Variety (Feb. 11, 2021), https://variety.com/2021/music/news/taylor-swift-fearless-love-story-re-record-big-machine-albums-good-morning-america-1234905692/ [https://perma.cc/78SD-Q4U8].

[3] Id.

[4] U.S. Copy. Off., Copyright Registration of Musical Compositions and Sound Recordings 1, Circ. 56A (2020), https://www.copyright.gov/circs/circ56a.pdf [https://perma.cc/RB4M-ADQY].

[5]Id.

[6] Frank Pallotta, Why Taylor Swift is Rerecording Her Songs, CNN (Feb. 11, 2021), https://www.cnn.com/2021/02/11/media/taylor-swift-fearless-rerecord/index.html [https://perma.cc/9FB5-QGX5].

[7] Travis M. Andrews, Can Taylor Swift Really Rerecord Her Entire Music Catalogue?, The Washington Post (Aug. 22, 2019), https://www.washingtonpost.com/arts-entertainment/2019/08/22/can-taylor-swift-really-rerecord-her-entire-music-catalogue/ [https://perma.cc/XYK9-F2GG].

[8] Willman, supra note 2.

[9] Brittany Spanos, Can Taylor Swift Re-Record Her Old Albums? Should She?, Rolling Stone (Aug. 22, 2019), https://www.rollingstone.com/pro/news/can-taylor-swift-re-record-her-old-albums-should-she-875296/ [https://perma.cc/7RNS-CQEE].

[10] Id.

[11] Id; Andrews, supra note 7.

[12] Willman, supra note 2.

[13] Jen Aswad & Shirley Halperin, When Could Taylor Swift Re-Record Her Big Machine Songs? It’s Complicated, Variety (Aug. 21, 2019), https://variety.com/2019/music/news/taylor-swift-scooter-braun-re-record-big-machine-songs-explained-1203309904/ [https://perma.cc/XWL5-FXTG].

 

 

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