Ask Dr. Copyright

Dear Doc:

Since literally everyone in the Universe is talking about Taylor Swift, I figured that you might want to, as well. So have at it!



Dear TK:

The Doc will, unlike literally everyone in the Universe, refrain from peppering his response with the titles of Ms. Swift’s songs, and will instead, stick to the copyright issues pertinent to her career and success. Right away, you can tell that the Doc is an erudite and well-informed expert who does not pander to popular fashion.

Taylor Swift copyright

If you have not been living in a cave, you probably know that Taylor Swift has spent the past few years recording and releasing “Taylor’s Version” editions of her early albums. These efforts have included additional songs from her “vault” that were not part of the original efforts, alongside re-recordings of her songs from the original albums. In undertaking this effort, she is countering the way in which record companies and private equity firms treat musical artists.

Early in her career, Taylor Swift, like most musical artists, sought a “record deal” with a “major label”. These deals usually transfer the copyright to recorded music to the record company, which pays for studio time, production costs, backing musicians, and the like. In the case of her early albums, this is what Taylor did at age Fifteen when she was Innocent, and her record label, Scott Borchetta’s Big Machine Label Group, ended up owning the recordings, Forever and Always.

In music copyright, there are many separable rights: the recording itself, the score, the lyrics, the arrangement, and so forth. Each of these rights may be separately owned, and Taylor transferred the rights to her recordings to her record company but kept (as is now customary) all of the other rights. Under copyright law, titles (of songs and of albums) are not copyrightable, and the record company thus can’t own those.

Years after she recorded her albums and became the biggest thing in music since Mozart, Taylor’s record company sold the copyrights to her records to a private equity company, Ithaca Holdings, headed by a fellow named “Scooter” Braun. Ms. Swift had a dislike for Braun and some of his clients, and reacted negatively to the news that her “master recordings” had been sold to his company. (Braun reportedly paid $300 million for the rights, and Ms. Swift was not legally entitled to any of that.) (Note that the Doc did not say that there was Bad Blood between the parties!)

This is where things get interesting, in a copyright sense. Taylor Swift decided to Begin Again and to kill the value of what Scooter bought. How? Well, remember that she had sold the rights to the recordings, but still owned the copyrights to the music, lyrics, arrangements, etc. She just went into a studio, hired her own musicians and production staff, and made new recordings of each of the old songs!  To each song title, she added the words “Taylor’s Version.” Her fans immediately started listening to and buying the new versions, and, more importantly, staying away from those owned by Scooter. To many, this strategy seemed Better Than Revenge.

Of course, now being infinitely more famous, as well as more experienced, Ms. Swift negotiated a deal with her new record label that gives her full ownership over her music. This End Game probably gave her Closure. But, Is It Over Now?  Has Karma exacted its revenge on Braun, or will he just Shake It Off?

There are, of course, many more messy details, allegations, and denials, which are recited here and here.

The Doc always marvels at how the music industry has created a contractual and legal mess from copyrights and generates so many cases that go to court and get more publicity. Moreover, only music has such a Byzantine set of rights, contractual customs, and interlocking companies, rights management organizations, and hangers-on. Taylor’s Version is just the latest chapter in that evolving soap opera.

Have a question about copyright (or any other intellectual property)? Give the attorneys at LW&H a call. They can unravel a Gordian knot (even if it isn’t named after Berry Gordy!)

Until next month,

The “Doc”

P.S. – The Doc apologizes for succumbing to the popular trend of inserting Taylor Swift song titles into this article. 

— Lawrence A. Husick, Esq.