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Owning Your Sound: Lessons from Taylor Swift's Master Rights Battle
July 25th, 2024
In relation to a recorded musical performance, there are three things that can be protected by copyright:
- the lyrics
- the music (musical notes in sequence)
- the recording of the performance of the lyrics and music (in the studio or in concert)
As the US Copyright Office explains,
The copyright owner of a musical work has the rights to make and distribute copies of it, publicly perform or display it, and make derivative works from it (including interpolations, remixes, or even videos using the musical work). Anyone else who wants to do these things must either get a license from the copyright owner, use a statutory license, or have an exemption apply, like fair use. A statutory license is created by operation of law, not by contract. With a statutory license, a copyright owner cannot say “no” to uses of their work, as long as the licensee complies with applicable legal requirements.
As Songtrust explains,
A compulsory license is a clause in copyright law that grants anyone permission to use your work in certain circumstances. They must be issued for cable television broadcasts, jukeboxes, PBS programming, and, most common, for digital and physical sound recording releases. The latter is considered a compulsory mechanical license. It means musicians can re-record any song that has already been commercially released without specific permission from the composition rightsholder.
In other words, if you wanted to record your version of “Bills, Bills, Bills” — or any other commercial release, for that matter — you would not need explicit permission from Destiny’s Child’s publisher so long as they were paid the statutory mechanical rate for each copy sold of your cover song. The statutory rate for physical and download releases in the U.S. is 9.1¢ per song, or 1.75¢ per minute of playing time — whichever is greater. Digital streaming services (like Spotify or Apple Music) operate on a blanket license basis for mechanical royalties.
The copyright for the musical work is normally owned by the composer/songwriter. However, the recorder performance (called the “master”) is usually controlled by the record label that released the song or album.
If a recording was self-released, then normally the artist (singer-songwriter) owns the rights to the master. Even though musical works and recordings of those works are separate works under copyright law, the artist may be able to register them for copyright protection together on a single application with a single filing fee if the copyright owner of the sound recording and musical work are the same.
When recorded music is played in public – for example, at a café or bar or sporting event or as part of a movie soundtrack -- all of the rights holders are paid (or should be).
Most music licensing in the US is handled by ASCAP (the American Society of Composers, Authors and Publishers) and BMI (Broadcast Music Inc.). Since the rights holders for music will belong to only one of these licensing organizations (or one of the smaller ones), businesses will usually need to pay licensing fees to each organization.
Businesses that fail to pay for music licenses can be subject to fines and even lawsuits for copyright infringement since the right to publicly perform music is one of the copyright holder's exclusive rights.
(This assumes that the musical work is still under copyright. Info about when music enters the public domain is here.)
The licensing organizations then pass on a share of the license fees to the various owners of the works, which can include multiple authors.
In 2005, Taylor Swift (then 16) signed with the Big Machine record label. By the time she parted ways with the company in 2018 she’d become a global superstar, with fans so enthusiastic that their dancing at concerts can trigger earthquake readings miles away from the venue.
Swift recorded six albums for Big Machine, all of which sold in the millions. Soon after she left, the company was acquired by Scooter Braun, who Swift called a “bully and a manipulator.”
(Braun was the manager for Kanye West, who grabbed the mic from then-19-year-old Swift at her 2009 MTV Music Awards speech and said Beyoncé should have won. Swift accused Braun of collaborating with West and Justin Bieber (another client of his) to bully her on social media. West also made sexual references to Swift in a song.)
Swift posted a message on her Tumblr account about the sale of Big Machine:
For years I asked, pleaded for a chance to own my work. Instead I was given an opportunity to sign back up to Big Machine Records and ‘earn’ one album back at a time, one for every new one I turned in. I walked away because I knew once I signed that contract, Scott Borchetta would sell the label, thereby selling me and my future. I had to make the excruciating choice to leave behind my past. Music I wrote on my bedroom floor and videos I dreamed up and paid for from the money I earned playing in bars, then clubs, then arenas, then stadiums.
Swift entered into a new contract with Universal Music Group that allowed her to own the masters for the albums she produced. She then set out to re-record new versions of her old albums – versions that she would own. These “new” albums were released as “Taylor’s Versions.”
The first of the “Taylor’s Versions” was released after Swift had been out of contract with Big Machine for three years, since until then she was legally required not to re-record any of her previous material released via the company.
Braun sold Big Machine to Shamrock Holdings for a reported $300 to $420 million (sources vary). Shamrock still owns the rights to sell the original versions of the albums, but they’re now less valuable since the new versions are available.
In response, music labels are now trying to prohibit artists from re-recording for 20 to 30 years rather than just two or three.
Categories: Copyright