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:
- 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).
- Owning the musical work covers the publishing side: the words, melody and underlying composition. Songwriters or publishers usually own this type of music copyright
- 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.