Taylor Swift’s Re-recordings Explained (Jen’s Version)

Standard album cover of 1989 (out!) next to the standard album cover of 1989 (Taylor’s Version) (in!)

Taylor Swift’s re-recording of her mega-hit album 1989 was released in October 27, 2023. 1989 (Taylor’s Version) is the fourth album Taylor has re-recorded: she released Fearless (Taylor’s Version) in 2021, Red (Taylor’s Version), also in 2021, and Speak Now (Taylor’s Version) in July of 2023.

In June of 2019, Taylor announced that she would re-record her first six albums so she can completely own her own music. [1]. With 1989 (Taylor’s Version) out now, she is more than half-way finished with her mission to re-record her first six albums that were released under Big Machine Records. 

Taylor’s decision to spend a significant amount of time re-recording already released music has many people scratching their heads. Why doesn’t she own her own music since she writes all of her music? What are “masters” and why doesn’t she have them?

Copyright law can be pretty complex, as is Taylor’s masters controversy. This article breaks down how copyright law works in the music industry, and why Taylor is re-recording her first six albums.

The Two Copyrights in Music

Copyright law protects “original works of authorship fixed in any tangible medium of expression.” [2]. Such works include, but is not limited to, literary works, (e.g., novels, comic books, and poems), paintings, photographs, movies, sculptures, and musical works. [3]. The owner of a copyright has certain exclusive rights to the copyrighted work, which includes, but is not limited to, the right to reproduce the work, the right to distribute copies of the work, the right to perform the work, and the right to create derivatives of the work. [4]. So, for example, the owner of a copyright of a novel has the right to print copies of it for sale.  The owner of a copyright of a play script has the right to perform the play for an audience.  And so forth.

Copyright protection in the music industry is particularly complex because there are actually two copyrights in recorded music. The first copyright is the copyright in the musical work, which protects the composition of the music, the lyrics and the musical notes; the second is the copyright in the sound recording, which protects the elements of original authorship in a sound recording. [5], [6]. Sound recordings are fixed in what are called “phonorecords”, which the Copyright Act defines as objects “from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” [7]. Thus, phonorecords include physical objects used to listen to sound recordings, such as CDs, cassette tapes, and vinyl albums.  [8]. However, the term phonorecords also includes digital files of music which can be played using software, such an MP3 file or WAV file. [9].

Each of the two musical copyrights has its own specific limitations and means by which the rights are administered.  Understanding the difference between them is key to understanding copyright law in the music industry, as well as understanding why Taylor is spending her time re-recording all these albums!

Taylor Swift performing at the Eras Tour in Chicago, IL, 2023. Photo by Jen Nacht.

Sound Recording Copyright & The Record Label

As Taylor would say, players gonna play play play.  Recording companies, or record labels, are key players in the music industry. Generally speaking, record labels exist to work with artists to record their music. [10]. Record labels often support artists by providing studio space, resources, and personnel to mix, produce, and promote their music. [11]. Typically, as was the case with Taylor, an artist signs a contract with a record label and is required to assign all copyright interests in the recorded music to the record label, including the “masters”. [12]. In the music industry, a master is the final mixed sound recording.  [13]. Thus, in the majority of cases, a record label owns the sound recording copyright of the masters that particular artist made while under contract with the record label. [14]. In the case of Taylor Swift, Big Machine Records owns the masters for her first six albums, Taylor Swift, Fearless, Speak Now, Red, 1989, and reputation. [15].

The value of owning the sound recording copyright of masters, especially for an extraordinarily popular artist like Taylor, cannot be understated. Said owner has the exclusive right to play the sound recording “by means of digital audio transmission.” [16]. In other words, the copyright owner of the sound recording has the ability to license, and profit, from the recorded music being played via digital audio transmission.  This includes radio and streaming transmissions on services like Spotify or Apple Music.

Standard album cover of Speak Now (out!) next to the standard album cover of Speak Now (Taylor’s Version) (in!)

Reclaiming & Remaking Masters

Even if an artist like Taylor, who owns the copyright in the musical work (as a songwriter) but not in the sound recording, is not completely out of luck.  Two options are on the table for artists like Taylor: sign a new contract to buy back or earn her masters from her record label, or, re-record her music to create new masters. 

The first option, albeit the more expensive choice, involves negotiating with the record label to buy back or earn back the masters.  [17]. Over the years, numerous popular artists have purchased their masters, some of which went for tens of millions of dollars, including Jay-Z, Rihanna, and Frank Ocean. [18]. Other artists, like Prince, earned back their masters by creating new albums for the record label in exchange for masters of the old ones.  [19].

Taylor alleges that the only option given to her by Big Machine was to earn each album back, one at a time, by producing a new album for the label.  [20]. Taylor declined the offer, expecting that one day her label would be sold “thereby selling me and my future.” [21]. Given the 11 years it took to produce the six albums under her Big Machine contract, and the Bad Blood now boiling between her and Big Machine, her choice in declining this type of offer was no surprise.

Thus, her other option to reclaim ownership over her work was to Begin Again and make new masters.  Under statute, the copyright owner of a sound recording cannot prevent the creation of another sound recording that “imitate[s] or simulate[s] those in the copyrighted sound recording”. [22]. However, some record labels try to go around this statutory limitation by creating restrictions in contracts with artists. For instance, some artists have to wait several years after their contract ends to re-record their music.  [23]. Generally speaking, most contracts restrict re-recordings within two years from the end of the contract or five years from commercial release.  [24]. While unconfirmed, Taylor’s re-recording restriction reportedly ended in 2020, which is two years after her contract ended with Big Machine record. [25].

The B and C Stages at Taylor Swift’s Reputation Stadium Tour in Chicago, IL, 2017. Photo by Jen Nacht.

Sync Rights

By re-recording her music, Taylor creates new masters and becomes the copyright owner of both copyrights: the copyright in her musical work and the copyright in her sound recording.  By securing the copyright in the sound recording, Taylor will have the exclusive right to license her re-recorded albums for digital audio transmission.  Additionally, the new masters will give Taylor full control over synchronization rights, also known as “sync rights.”  [26]. Sync rights are the rights to use an artist’s music (“sync”) with a visual media, e.g., movies, TV shows, commercials, video games, etc. [27]. When a licensee wants to use recorded music in visual media, they must obtain approval from both the owner of the sound recording and the owner of the musical composition.  [28]. Long story short, by re-recording her old music, Taylor will have full control of how her music will be used in other forms of media. 

Taylor Swift performing at the Eras Tour in Chicago, IL, 2023. Photo by Jen Nacht.

Conclusion

Taylor Swift is re-recording her old albums to create new masters.  This will give her full control to license and profit from digital audio transmissions of her music, and her creative control in licensing her music in visual media.  Presently, Taylor owns the masters to the albums she made since signing to Republic Records, which includes Lover, folklore, evermore, Fearless (Taylor’s Version), Red (Taylor’s Version), Midnights, Speak Now (Taylor’s Version), and 1989 (Taylor’s Version). The albums she has left to re-record are Taylor Swift (her self-titled debut album) and reputation.  The triumph of her re-recorded albums cannot be understated, her re-recorded albums have broken numerous streaming records, earned her grammy nominations, and grammy wins. [29], [30]. One could say her continued success is Better Than Revenge.

An earlier version of this article was originally published on Moraru & Nacht LLC’s website on August 18, 2023.

Sources

[1] “Taylor Swift wants to re-record her old hits after ownership row.” BBC News. 22 August 2019. <https://www.bbc.com/news/entertainment-arts-49432817>.

[2] 17 U.S. Code § 102(a).

[3] Id.

[4] 17 U.S. Code § 106.

[5] 17 U.S. Code § 102(a).

[6] Cohen et al. Copyright in a Global Information Economy, Third Ed. Wolters Kluwer, 2010, pp. 436-468.

[7] 17 U.S. Code § 101.

[8] Cohen, supra note 6 at pp. 436-468.

[9] Id.

[10] Id.

[11] Id.

[12] Sodomsky. “Taylor Swift’s Music Ownership Controversy With Scooter Braun: What It Means and Why It Matters.” Pitchfork. 01 July 2019. <https://pitchfork.com/news/taylor-swifts-music-ownership-controversy-with-scooter-braun-what-it-means-and-why-it-matters/>.

[13] Id.

[14] Id.

[15] BBC News, supra note 1.

[16] 17 U.S. Code § 106(6).

[17] Sodomsky, supra note 12.

[18] Id.

[19] Newman. “Inside Prince’s Career-Long Battle to Master His Artistic Destiny.” Billboard. 28 April 2016. <https://www.billboard.com/music/features/prince-battle-to-control-career-artist-rights-7348551/>.

[20] Sodomsky, supra note 12.

[21] Id.

[22] 17 U.S. Code § 114(b).

[23] Spanos. “Can Taylor Swift Re-Record Her Old Albums? Should She?” Rolling Stone. 22 August 2019. <https://www.rollingstone.com/pro/news/can-taylor-swift-re-record-her-old-albums-should-she-875296/>.

[24] Id.

[25] Brighouse. “Look what you made her do: why is Taylor Swift re-recording her albums?” Mancunian Matters. 21 May 2021. <https://www.mancunianmatters.co.uk/entertainment/21052021-look-what-you-made-her-do-why-is-taylor-swift-re-recording-her-albums/>.

[26] Leadsinger, Inc. v. BMG Music Publishing, 512 F.3d 522, 527 (9th Cir. 2008).

[27] Id.

[28] Id.

[29] Lipzhutz. “7 Key Stats Proving That Taylor Swift’s First Two ‘Taylor’s Version’ Re-Recordings Have Been Dominant” Billboard. 06 July 2023. https://www.billboard.com/lists/taylor-swift-taylors-version-stats-chart-numbers/.

[30] Greenberg. “Taylor Swift: Grammy nomination for Song of the Year is ‘momentous and surreal.’” Hot Press. 16 November 2022 <https://www.hotpress.com/culture/taylor-swift-grammy-nomination-for-song-of-the-year-is-momentous-and-surreal-22938767>.