Exposing the "folklore" of Re-recording Clauses (taylor's Version)

• Publication year: 2022

Exposing the "Folklore" of Re-recording Clauses (Taylor's Version)

Justin Tilghman
University of Georgia School of Law

[Page 402]

EXPOSING THE "FOLKLORE" OF RE-RECORDING CLAUSES (TAYLOR'S VERSION)

Justin Tilghman^*

[Page 403]

TABLE OF CONTENTS

I. Introduction...........................................................................................404

II. Background.............................................................................................404

A. Now we Got Bad Blood..............................................................404
B. Different Dance, But it is Really the Same Song...........407
C. Creator's Rights............................................................................408
D. Re-recording Clauses: "You Belong with Me" . . . at Least for a Few Years...............................................................................410

III. Analysis......................................................................................................411

A. A History in Creator's Rights..................................................411
B. Re-recording Clauses Disinventivizes Creation............413
C. Practical Implications of Re-recording............................415

IV. Conclusion................................................................................................417

[Page 404]

I. INTRODUCTION

Many artists believe that their significance, power, or notoriety comes from how many GRAMMY awards they have won or how well their album sales do the first week. However, very few artists recognize that the true power comes in the form of owning the rights to their master recordings. Given how difficult it is to achieve commercial success as an independent artist, many artists will turn to major record companies to help with their music production and distribution. This help, however, is not unconditional. The artist will sign over the master recording rights to the song or album to the record company to support the artist's album. Whoever owns the rights to a master recording is free to appropriate and license the recording to third parties for large sums of money and exclude others from using the recording without authorization.

Unfortunately, many artists only get a fraction of the profits, despite it being their creation. Singer Taylor Swift has taken significant issue with this "trade" between artists and record companies. Most notably, Swift was involved in a highly publicized fight to get the master recording rights for her entire catalog from music executive Scooter Braun. After fruitless attempts to buy back her masters, Swift decided to re-record her entire catalog. Swift attempted to create a new master's recording separate from that of the original master recordings owned by Braun. She can only do this once her re-recording clause expires. This clause prohibits an artist from re-recording their own songs for a designated period of time. This Note explores when re-recording clauses go too far and, in effect, violate the public policy the Framers had in mind when drafting the 'Useful Art Clauses'.

II. BACKGROUND

A. NOW WE GOT BAD BLOOD

In today's music industry, how artists are measured in success is rudimentary, that is, rudimentary in the sense that an artist is viewed as "successful" based, for the most part, on their tangible accomplishments. For instance, when some artists win an award at the GRAMMYs, they reached the "pinnacle" of success. Indeed, those artists make a five-pound grammium alloy statue¹ their "end goal".² On the other hand, an artist may base their success on how big their house is, how many cars they have, or how many expensive pieces of jewelry

[Page 405]

they own.³ In a song titled Success, by record executive Shawn Carter, also known as "Jay-Z", Carter questions what it means to be successful in the music industry.⁴ Carter doubts that the number of cars he has or his purchase of expensive champagne will ever truly make him successful; yet, a majority of the artists in today's music industry find solace knowing that once they have obtained those tangible accomplishments, they have "made it".⁵

A minority of artists like Carter, however, focus less on tangible items to measure their success or impact in the music industry. Most notably in that compact group is GRAMMY Award-winning recording artist Taylor Swift. Known for hits like Shake it Off⁶ and Bad Blood⁷ , Swift is making a public display of a struggle that many artists throughout the years have dealt with.⁸ In 2005, teenage Swift entered into a 13-year contract with Big Machine Records, a country music record label founded by Scott Borchetta.⁹ The contract stipulated that in exchange for a cash advance and help with producing Swift's music, Big Machine Records would own the master recording rights¹⁰ to Swift's first six albums.¹¹ At the time that the young Swift signed the contract, she likely had no idea what a master recording was or its significance because of her lack of experience in dealing with major recording labels.¹²

[Page 406]

In 2019, Swift became embroiled into a fight with record executive, Scooter Braun, to obtain the master recording rights to the first six albums she made while signed to Big Machine Records.¹³ This fight began when Borchetta and Swift were unable to reach a deal to renew Swift's contract, causing Swift to leave the record label.¹⁴ Swift leaving, however, did not mean that her master recording rights left with her. In 2019, Big Machine Records was purchased by Braun for reportedly $300 million.¹⁵ Along with acquiring the record label, Braun also acquired Swift's master recording rights.¹⁶ In 2020, Braun sold Big Machine and Swift's master recordings to Shamrock Holdings, an American private equity firm owned by the Disney estate, for reportedly $300 million.¹⁷ Before the sale to Shamrock Swift attempted to buy her master recording rights from Braun directly.¹⁸ Braun gave Swift the option to buy back her master recording rights, but she would be required to sign a non-disclosure agreement, preventing her from saying anything negative about Braun in public.¹⁹ Swift refused and blasted Braun on social media.²⁰ She said that she had no idea that Braun, whom she described as an "incessant, manipulative bully[]" would be purchasing Big Machine.²¹ She also stated "[e]ssentially, [her] musical legacy is about to lie in the hands of someone who tried to dismantle it."²²

Faced with being unable to obtain her master recording rights, Swift has chartered a different path to obtain the benefits that come with owning the rights to a master recording. In 2019, Swift announced that she would be re-recording the previous six albums she recorded while under Big Machine Records with her new record label Universal Music Group.²³ Swift's contract with Universal Music Group provides that she will be able to own the master recording rights of the re-recorded versions of her previous albums.²⁴ Swift urges that her decision to re-record her albums is not for money, but instead to move the needle in the

[Page 407]

direction of artists rather than the recording label in terms of ownership and ownership rights of the music.²⁵

B. DIFFERENT DANCE, BUT IT IS REALLY THE SAME SONG

Swift is certainly not the first artist to make the decision to re-record her own songs. Other singers, like Prince and JoJo, have also re-recorded their catalogs to control the rights to their music.²⁶ The act of re-recording, however, begs the question of whether an artist re-recording their previous album violates the copyrights of the record label. Concededly, Swift is a professional and can sing notes or reach certain pitches that very few in the general public can. Despite this fact, Swift's ability to change the melody or the beat of a re-recorded version to avoid infringing on the record labels version is unlikely. The question is: does an artist re-recording their song, regardless of how similar it is to the original version, constitute copyright infringement? If there is no infringement, then what rights do record labels have in protecting their investments? The battle between artists and recording labels has been a back-and-forth one.²⁷ Swift's endeavor could put a huge win in the column for artists by giving artists the control in their own creations, even if it was not the first version of the creation.

This Note analyzes whether an artist can re-record their own catalogue without infringing on the original master recordings owned by a record label or some other entity. This Note argues that Congress' intention in passing the Copyright Act was to prevent master recording owners from extending their rights in their recordings beyond the sounds fixed in the actual recording.

This Note then argues that the contractual measures that recording labels have in place are not enforceable against artists and cannot prevent artists from re-recording their music for a set duration of time. Part II discusses the two separate copyrights within a musical work as well as what is considered infringement of a copyrighted musical work under the Copyright Act. Part III discusses the contractual method record labels use to protect their interest in an artists' original master recording by restricting an artists' ability to re-record their own music for a designated period. Part III also argues that the Copyright Act does not extend an owner's rights in a master recording to re-recordings of that master recording and proposes that re-recording clauses in contracts are void ab initio in the interest of the public. Finally, Part IV will discuss the practical implications and

[Page 408]

difficulties that some artists will face when attempting to re-record their own music.

C. CREATOR'S RIGHTS

A copyright owner has certain exclusive rights within its work to do and authorize certain things.²⁸ These rights include (1) the ability to reproduce the copyrighted work in copies; (2) prepare derivative works of the copyrighted...