We Compared ‘Taylor’s Version’ Songs With the Original Taylor Swift Albums

From The Wall Street Journal:

Recording nearly identical covers of her first six albums is the latest step in Ms. Swift’s legal tussle to control her back catalog. In addition to the “Wildest Dreams” rerecording, she has released “Fearless (Taylor’s Version),” and “Red (Taylor’s Version)” was released on Nov. 12.

Ms. Swift was unable to buy the master recordings of her first studio albums from her original label, Big Machine Records. Ownership of the recordings have changed hands twice against Ms. Swift’s wishes. The first time, when they were sold in 2019, she described it as her worst-case scenario. The second time, the rights were sold to investment firm Shamrock Capital Advisors LLC in the fall of 2020. Both times, Ms. Swift said, the deals happened without her knowledge.

“Everyone’s talking about Taylor Swift getting her masters back, but there’s nothing for her to get back because she never owned them in the first place,” said Tonya Butler, a professor and chair of the Music Business/Management Department at Berklee College of Music.

Yet Ms. Swift does exert some ownership over her music. How? It boils down to music copyright and longstanding deal-making in the industry:

  1. Any music recording you listen to comes with two distinct types of ownership, according to U.S. copyright law: one that covers the specific sound recording (also referred to as owning the master), and the other which covers the musical work (sometimes described as owning the composition or publishing).
  2. Owning the musical work covers the publishing side: the words, melody and underlying composition. Songwriters or publishers usually own this type of music copyright
  3. Owning the sound recording means owning the master recording. Owning the masters allows you to control, for example, how a master is duplicated and distributed across digital and physical formats.

Ms. Swift has tried to, but doesn’t, own the masters of her first six albums. Shamrock Capital does.

Her solution: Make a new recording that sounds almost exactly like the first one.

When Ms. Swift signed a new recording contract with Universal’s Republic Records in 2018, part of the deal was that she would own 100% of any recordings she makes during the length of their contract.

By rerecording—technically she is covering her own song—she is creating a new sound recording copyright that she fully owns.

The same idea applies to any other artist who records “Wildest Dreams.”

For instance, singer-songwriter Ryan Adams released a “1989” cover album in 2015. His own label, Pax Americana Recording, controls the recording’s copyright. But Ms. Swift and the other owners of the publishing side receive royalties through various revenue streams, including when a digital or physical copy of his recording is reproduced such as on vinyl or Spotify. The owners on the publishing side would also get paid if Mr. Adams played their song in concert.

In November 2020, her rerecording restriction, a key term in Ms. Swift’s original contract, expired and opened up the opportunity to return to the studio. Rerecording restrictions—agreements between an artist and label that stipulate the artist can’t rerecord a song for a certain period—are standard.

“Regardless of the reasons why she’s rerecording, whether it’s spite or good business, the fact she is bringing to attention the rerecording restriction agreement alone makes the whole controversy valuable,” Prof. Butler, who previously worked as an entertainment attorney and record company executive, said.

In April, Ms. Swift released “Fearless (Taylor’s Version),” an album containing 25 tracks, 19 of which are rerecordings from the 2009 platinum edition of “Fearless.” Around the time of the release, Ms. Swift said she intended for the recorded lyrics, melody and instrumental arrangements to have little difference.

The business rationale for why she is rerecording identical sounding versions is clear. If someone wants to use her song in their TV show, movie, game or commercial, they would need the approval of both the person who owns the recording and the owner of the publishing. They would also need to pay a fee to obtain a license.

If someone requested to use the original “Love Story” in a movie trailer, having Shamrock Capital’s approval alone wouldn’t be enough since Ms. Swift owns the publishing side. She could deny the request unless they used her rerecorded version, which Shamrock Capital doesn’t own.

Link to the rest at The Wall Street Journal (Should be a free link. If not, PG apologizes for the paywall, but hasn’t figured out a way around it.)

PG notes that the original WSJ article is heavily formatted in a manner that may make understanding the OP easier. There are also segments of both the original and the newly-released recordings of Ms. Swift performing her songs embedded in the WSJ article.

Having spent a long time looking at various types of contracts, PG suspects the language separating ownership of the master recording from the musical work was devised by an attorney for a recording company some time ago and the talent agent representing the singer/songwriter didn’t read or didn’t understand the language.

Back in the day when vinyl audio records (78, 45 and 33⅓ rpm – you’ll understand this if you’re over a certain age) were the only way to duplicate and distribute musical recordings to listeners, whoever owned the physical master controlled who could manufacture (“press”) the records by limiting who had a chance to use the master.

Over time, this type of provision became “standard” in the music business and agents didn’t try to get it changed or inform their clients about its implications.

The technology change that took place and has established today’s recording status quo is that exact copies of musical performances recorded digitally can be easily created and distributed electronically. Ms. Swift doesn’t need any music publisher or record duplication factories or warehouses or physical retail stores any more. She can work through various digital streaming services (or even afford to create one herself) and earn a great deal more money than she was receiving from her former music publisher.

Alert readers will note similarities in the digital disruption of the music recording business and the book business.

Authors who have dealt with traditional publishers will find book equivalents to the language Ms. Swift managed to circumvent in their publishing agreements.

Without disclosing any details, PG has helped more than one author who signed a publishing agreement years ago to regain some rights to self-publish their own books. He has sometimes been surprised at how seldom some publishers review the provisions of their own publishing agreements.

17 thoughts on “We Compared ‘Taylor’s Version’ Songs With the Original Taylor Swift Albums”

  1. “Having spent a long time looking at various types of contracts, PG suspects the language separating ownership of the master recording from the musical work was devised by an attorney for a recording company some time ago and the talent agent representing the singer/songwriter didn’t read or didn’t understand the language.”

    You could be right–obviously, you have far, far, far more experience in legal matters than I. But I suspect Swift’s attorney was fully aware of the language and that the label’s response to an unsigned 19-year-old wanting to own her own masters would be to laugh and tell her to take the deal or leave it, an attitude shared by every other label.

    I could of course be wrong.

    • Good point, Scott.

      Many a one-sided contract has been signed because the other side was lacking in significant bargaining power.

  2. It’s more complicated than PG says, thanks (in part) to a 1908 Supreme Court opinion on player pianos. The tl;dr version is that sound recordings (as distinct from compositions) were not protected under federal copyright law until 1972, and not completely until the 1976 Act came into effect in 1978. (Don’t worry, there’s more head-spinning goofiness hiding in this, too.) This is set the turntable, so to speak, for the contracting shenanigans that PG rightly suspects; the quibble is that those shenanigans occurred a century ago and ossified so that “the industry” won’t do business any other way. And the industry has all of the most-expensive lawyers, so it doesn’t matter how carefully the artist’s rep reads things — they’re nonnegotiable.

    So it both is and isn’t about the contracts. It is, because the contracts (not copyright law) are the source of the problem. It isn’t, because those particular terms are not negotiable. The less said about the errors and unintended consequences of United States v. ASCAP, the better…

    • All the more reason for someone like Swift to do her own recordings and keep all the money.

      I’m trying to think of the last time I saw a music store. Can’t remember back that far.

  3. I wonder if those “singer preferred” versions are all fully rerecorded or perhaps a few shortcuts were (quietly) used. One assumes the former as the latter (working off Tidal versions of the originals, for example) might open a can of worms. My curiosity arises from her claim that the rerecordings are meant to be (nearly) identical to the original sessions. Given how heavily processed today’s commercial music is, there’s a lot of settings involved. They’re probably documented but in most cases of rerecordings an effort is made to distinguish the sessions. Given her hold over the fanbase, she could easily say the older version was never her intent, instead of trying to copy it.

    (That’s how writers doing author-preferred releases do it. Usually with good reason. Philip José Farmer’s TWO HAWKS FROM TERRA being the most eggregious case I’m familiar with.)

    Anyway, rerecording was a lot more common back in the 60’s and 70’s because of the transition from monophonic to stereo and the attempt to move to “QUADRAPHONIC” surround sound and again, the intent was to highlight the differences in the releases.

    Makes it clear her goal is more spiteful than artistic. At least she is openly spiteful. Points for honesty, I suppose.

    • I’m guessing that if Swift was using a loophole in the contract, everybody made certain that her recording was firmly within that loophole.

      Among many other things, I’m no expert on sound recording technology, but if the post-processing was done from new Swift recordings, I’m guessing that a computer analysis of the original could identify the settings for post-processing pretty accurately.

      I’ll also bet that the new recordings have some unique sounds (perhaps unnoticeable to anyone without a golden ear) that are not part of the original recording to provide insurance against claims that she just tweaked the original masters.

      • What I’m thinking is that a lot of acts keep studio recordings for “live” appearances. Some are full recordings for lip syncing, others are just the musical accompainment. Both being distinct from the commercial master.
        The latter would be useful for a quickie rerecording as opposed to doing one from scratch. Of course, she can easily afford a clean room effort ($$$) but a full album production takes a significant time investment from a lot of people.

        She would have to be really…motivated… to go full clean sheet.

    • I would probably say “vengeful,” not “spiteful.” I’m not a fan of hers, but from what I know of the story – she has reason. The investors are also rather stupid – they now hold an essentially worthless asset. Should have negotiated in good faith, but they apparently thought she was just another powerless creator, that they could push around with impunity.

    • Felix,

      Usually with good reason. Philip José Farmer’s TWO HAWKS FROM TERRA being the most eggregious case I’m familiar with.

      Do you know where that was discussed. I’d like to track down the essay/article.

      Thanks…

      • I’m working off my memory of his introduction to the 1979 rerelease.
        He’re’s the closest I found online:

        http://www.philipjosefarmer.com/

        ——–

        “Farmer’s novel The Gate of Time was first published in 1966. It was restored and revised for publication in 1979, as Two Hawks from Earth.

        Farmer wrote a brief foreword with the new publication:
        «This novel was first published in 1966 and then in 1971 (actually 1970) as The Gate of Time. That was not my title. I have no idea why the editors changed it, since this is not a time travel tale, and their title certainly was misleading. So I have restored the original, Two Hawks From Earth.
        The editors of that house also rewrote a scene to bowdlerize it. This was done without my knowledge, and so I have restored that scene.
        Also, I have added ten thousand words. These include some chapters which go beyond the original ending.
        –Philip José Farmer
        January 1979

        —–

        He was being diplomatic.
        IIRC, the “bowdlerized” part was a multiracial romantic scene. Other stuff was excised, presumably to meet word count. It’s been ages since I last read it and even longer the first release but TWO HAWKS is a more nuanced story than GATES. Better cover on my version: VALLEJO.

        Farmer’s early works were not well treated.
        His GREEN ODDYSSEY ended up in tbe public domain because somebody neglected to renew tbe copyright. Which, since it a really good SF Adventure novel, is great for readers but not his pocketbook.(Andre Norton also lost a couple stories that way.)
        Not much respect for SF in those days.

        (BTW, I just found out there is a “sequel”, apparently authorized. MZN OF WAR, by Heidi Ruby Miller. Of course I’ll have to read it. Sigh.)

    • If I recall, Gordon Lightfoot re-recorded a lot of his early United Artists material when he moved to Warner/Reprise in the early 1970s. Partly it might have been to take advantage of advances in technology (and larger recording budgets) but I always assumed the main reason was that W/R wanted to market their own versions of the songs.

      • It’s even uglier than that: It was the only way either Lightfoot or the label could get copyright or performance-right protection, for the same reason as the 1954–55 version of The Lord of the Rings is actually in the public domain — UA had violated the Manufacturing Clause of the 1909 Act by importing too many copies produced overseas. The UA recordings were technically public domain from 1968 onward (if I recall correctly, and my recollection is a bit hazy and may be off on a couple of details in this particular instance) for that reason.

        Let’s just say that the management of UA wasn’t the sharpest pencils in the box, and hadn’t been from day one, and leave it at that. Worse, they kept insisting that managerial pencils could be used effectively (and permanently) on any writing surface. Application of “hedge-fund financing” to the Taylor Swift situation that inspired PG’s piece is left to the lurid imagination of horror-film fans everywhereNo! Don’t look under the bed!, who will come up withI told you not to look there some pretty entertaining conspiracy theories… that will prove less outlandish than “the truth” when someone uncovers it a decade or more from now by burrowing throughDefinitely don’t look in the company archives! old paperwork.

        • Old paperwork that says she offered to buy tbe masters at market price would be my kneejerk. Not all “investors” own pencil sharpeners.
          And some are still believers in the bigger fool theory.

          • Felix, I told you not to look under the bed. And definitely — definitely — don’t feed the gremlinshedge-fund investors after midnight.

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