Marin Bennerotte
As Taylor Swift fans watched the Grammys in early February, many expected an announcement of the re-release of her “Reputation” album, originally released in 2017.[1] While Swift did not announce this re-release at the Grammys, when “Reputation” does become available to the public, it will be Swift’s fifth re-recorded album since 2021.[2] The basics of copyright law shed light on Swift’s decision to re-record songs from her albums released between 2006 and 2017.[3]
Copyright law is governed by federal statutory law.[4] This law provides for ownership of certain “tangible medium[s] of expression,” known as a layer of copyright.[5] When it comes to copyright of a song, there is more than one layer.[6] Typically, there are three layers of copyright involved in a song.[7] The first layer is the song lyrics.[8] The copyright ownership for the song lyrics is typically assigned to the individuals who wrote the lyrics unless a contract or employment status modifies this general rule.[9] The second layer is the musical composition.[10] The musical composition is the “sound, melody and rhythm” of the work.[11] Generally, the copyright ownership for musical compositions is assigned to the individuals who created the music.[12] Again, this general rule is subject to contract or employment status.[13] The final layer of copyright in songs is the sound recording.[14] This sound recording is known in the music industry as the master recording.[15] The copyright owner for the master recording is most often the producer, employed by a specific record label.[16]
These three layers of copyright explain why Swift has chosen, and been able, to re-record her original six studio albums. As an accredited songwriter on all songs from her first six albums, Swift maintained the rights to the first two layers of copyright—the song lyrics and the musical composition. Since Swift maintained these rights, she has been able to perform her music live without infringement, as we have seen her do throughout the course of her global tour. Additionally, because she maintained these rights, she has been able to utilize the same lyrics and musical composition in her re-records.
However, since the copyright owner for her master recordings was Big Machine Records, Swift does not have copyright interests in the third layer of copyright, the master recordings.[17] Big Machine Records originally came to own the master recordings from a thirteen-year record label contract with Swift entered into in 2005.[18] This contract included a re-record clause, typical in the industry.[19] This clause established that Swift would be unable to re-record her songs until 2020, two years after the original contract would expire.[20] While Big Machine Records originally had the rights to the master recordings, they later sold the rights to a music manager in the industry, Scooter Braun.[21] In 2020, Braun then sold the rights to a private equity firm, Shamrock Holdings,[22] owned by the Disney estate, which continues to hold ownership rights to the master recordings today.[23]
Since the re-record clause expired in 2020, Swift has released four re-records of the albums she initially recorded with Big Machine Records: “Fearless,” “Red,” “Speak Now” and “1989.”[24] These re-recordings have achieved massive levels of success, with the four re-recording catalogs estimated to be worth over three million dollars combined.[25] However, the success of Swift’s re-records has caused a change in the music industry. The industry is currently adapting its record label contracts to ensure musicians will not be able to legally re-record this quickly in the future.[26] Specifically, while waiting periods for re-recording used to be between five to seven years after the original release date, these new contracts plan to disallow re-recording before the thirty-year mark.[27] This would make it more difficult for artists to achieve the level of success that Swift has had with her re-recordings. Artists in the music industry should plan to carefully negotiate these record label contracts to maintain some control over their master recordings.
[1] Esther Sun et al., With new album announcement, Taylor Swift fans are in shambles over the ‘Reputation’ rerecording, Today (Feb. 4, 2024), https://www.today.com/popculture/music/reputation-taylors-version-rcna101580.
[2] Naomi Centrella, (Taylor’s Version): Explaining Taylor Swift’s Re-Recordings Under the Copyright Law, Fitzpatrick, Lentz, & Bubba (Oct. 27, 2023), https://www.flblaw.com/taylors-version-explaining-taylor-swifts-re-recordings-under-the-copyright-law.
[3] Id.
[4] Robert Brauneis & Roger E. Schecter, Copyright: A Contemporary Approach 5 (2012).
[5] Id. at 7.
[6] See e.g., Kellech Smith, Reclaiming copyright ownership: Why Taylor Swift doesn’t need Romeo to save her, Ashurst (Aug. 30, 2023), https://www.ashurst.com/en/insights/reclaiming-copyright-ownership-why-taylor-swift-doesnt-need-romeo-to-save-her/; 17 U.S.C. § 101 (2010).
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Smith, supra note 6.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Brendan Morrow, Why Taylor Swift keeps releasing all those re-recorded albums, The Week (May 10, 2023), https://theweek.com/taylor-swift/1013413/why-taylor-swift-keeps-releasing-all-those-re-recorded-albums.
[18] Taylor Swift vs The Big Machine: what’s this copyright fight really about?, iClaw (Apr. 3, 2022), https://iclaw.com/taylor-swift-vs-the-big-machine.
[19] Morrow, supra note 17.
[20] Centrella, supra note 2.
[21] Morrow, supra note 17.
[22] Id.
[23] Tim Ingham, Why Did Shamrock Capital Spend $300 Million on Old Taylor Swift Albums?, Rolling Stone (Nov. 17, 2020), https://www.rollingstone.com/pro/features/why-taylor-swift-scooter-braun-shamrock-1091742/.
[24] Morrow, supra note 14.
[25] Sam Lansky, The Poet Laureate of Pop Culture, Time Magazine (Dec. 6, 2023), https://www.everand.com/article/692717365/The-Poet-Laureate-Of-Pop-Culture.
[26] Monique Davis, Taylor Swift’s success in re-recording her albums causes major record labels to change their contracts for future music artists, USC Annenberg Media (Oct. 31, 2023), https://www.uscannenbergmedia.com/2023/10/31/taylor-swifts-success-in-re-recording-her-albums-causes-major-record-labels-to-change-their-contracts-for-future-music-artists/.
[27] Id.
