Why Taylor’s Versions Don’t Break Copyright Law
Taylor Swift has re-released a bunch of her old songs, and they sound pretty much the same. Isn’t this a copyright problem?
This short answer: almost certainly, no. But here’s the story that explains why.
(Disclaimer: Not legal advice. Act on what was written in this post at your own risk.)
Back when she wasn’t the superstar we know of today, Taylor Swift recorded a bunch of songs. These would later become some of the greatest hits of all time.
Now, copyright protects creative things, and Taylor Swift’s songs are very creative things. That means that, in a different timeline, she would have been the owner of the copyrights over her songs.
But here’s the catch. Swift did a bunch of recordings with a record label (big music company, lots of powerful connections, if you don’t work with them there’s no chance people will know who you are). And just like how you can sell your phone to a friend, you can sell your copyrights to big companies. Swift basically did that, because that’s what big music companies want from small artists.
The thing is, copyright sees “sound recordings” and “musical compositions” as pretty different things. Musical compositions are the notes and elements that can be put together to make a song. Sound recordings are… literally what they say they are.
So if you sing a song based on an arrangement of musical elements, you’re performing a musical composition. If you record that performance, that’s a sound recording.
The record label kept the sound recording copyrights of Swift’s older songs. That makes sense, because sound recordings are where the money’s at. They get played on the radio, sold in stores, and streamed on online music services. The musical composition copyrights are not worth as much, so it didn’t matter if they stayed with Swift.
At least, they didn’t matter until 2018, because Swift is now one of the most popular artists in the world. Now, as Swift kept the musical composition copyrights to her old songs, she’s free to re-perform her music and re-record it. This time, she doesn’t need to sell those copyrights to anyone anymore—she’s big enough to distribute the recordings herself.
What this probably means is, Swift hasn’t infringed anyone’s copyrights. She hasn’t copied any part of the original sound recordings; she’s re-performed and re-recorded her own musical compositions.
And yet again, copyright law’s wonderful shenanigans leaves us wondering why it was all so technical in the first place.
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References:
On the difference between sound recording and musical composition copyrights, see Newton v Diamond, 388 F (3d) 1189 at 1193 (9th Cir 2004).
On Taylor Swift’s story, see the many reports on it, for example: https://www.lexology.com/library/detail.aspx?g=1fee55b4-2575-4978-87eb-bb38d8838e62 ; https://americansongwriter.com/songwriter-u-what-can-we-learn-about-copyrights-contracts-from-taylor-swift/ ; https://www.vox.com/culture/22278732/taylor-swift-re-recording-fearless-love-story-master-rights-scooter-braun .
The legalese version…
Copyright law sees “sound recordings” and “musical compositions” as different types of works. In the context of commercially-available popular songs, sound recording copyrights protect unique musical performances which are recorded in any form, while musical composition copyrights protect the combination of musical elements (such as melody, rhythm and harmony) which form the music.
Swift was the author of various songs, which were extremely commercially successful. While authorial copyrights generally vest in authors by default (there are exceptions for works made in the course of employment and commissioned works), this position can be altered by contract. In Swift’s case, she signed a contract with her original record label to assign the sound recording copyrights (“master recordings”) of her original songs to them, while the musical composition copyrights were to be vested in her. Sound recording copyrights can only be infringed by actually copying the audio which constitutes the sound recording (and there is some controversy over whether this is subject to a de minimis requirement, see the Bridgeport (6th Cir 2005) case and cf. the Ciccone (9th Cir 2016) case). Therefore, by re-performing the musical composition and re-recording it, Swift could not have infringed the sound recording copyrights of her original record label (at least, based on US law).
It may be noted that sound recording copyrights occupy a somewhat disputed status. On one hand, they are not classified as “authorial works”, and the consequence of that is that they do not have a requirement of originality for copyright to subsist in them. In cases involving non-authorial works, the general rule regarding first ownership is to follow the money; in Swift’s case, it didn’t matter, because the position was decided by contract. However, sound recordings are subject to an originality requirement in the US, because Congress intentionally did not draw a distinction between authorial and non-authorial works (and sound recordings were specifically mentioned in that regard). The position may be different in other jurisdictions.