Copyright Law: Why Ryan Adams Was Able to Rerecord a Taylor Swift Album Before Taylor Swift Could

Image sources: – Flikr MeltedHeadaches: Gillette Stadium – Foxboro, Massachusetts
June 5, 2010; and Flikr Julio Enriquez: Ryan Adams ::: Red Rocks ::: 06.14.18

Recently, Taylor Swift’s fans welcomed another newly recorded version of one of her previous albums, Red (Taylor’s Version). It’s a remarkable achievement, not because she’s the first to artist to rerecord albums in their entirety, but probably the first where’s this much demand from fans. The (Taylor’s Version) albums might ultimately become known as the definitive albums, and the previously recorded versions could be afterthoughts.

This post is about the copyright and contractual issues that led to Swift rerecording her albums in their entirety. Why did Swift have to wait to rerecord the albums, and why could Ryan Adams do it before she could? Is it because of copyright law? Well, yes and no.

As is always the case with copyright and any legal aspects of the music industry, I’ll be summarizing and simplifying. Otherwise, I could write a book on this. Assume asterisks are everywhere.

There are two separate copyrights in a record: the sound recording and the compositions.

The sound recording is the recorded performance of the music. The authors of the sound recording are typically the singers and musicians who perform, regardless of who wrote the songs.

When a recording artist signs with a record label, the common industry practice is that the artist assigns the copyrights in the sound recordings to the label “in perpetuity.” The contract will also state the sound recordings are “works for hire”, which means that the record company is the statutory “author”. I wrote previously about how the “work for hire” designation jeopardizes artists’ rights to terminate these assignments under the Copyright Act, and how it’s just plain wrong.

These sound recordings copyrights are often referred to, contractually and colloquially, as the “masters”. That can get confusing, because “masters” also what we call the tangible, physical recordings from which subsequent copies are made. Recording contracts often blur the two definitions, something I’ve been known to get on a soapbox and warn about.

The authors of the compositions, what the Copyright Act calls “music works”, are the songwriters. Those copyrights are typically not assigned to the record company. If the artist is the songwriter, they don’t have to assign the copyrights, but they often assign rights separately to a publisher. In fact, the record company must pay for use of the compositions. It’s called a mechanical royalty and there’s a statutory rate, but artists get a really bad deal on this. That’s because of the “controlled composition” clause, which will have to be discussed in another post because it gets mathematically complicated.

Once the recorded versions of these songs have been released, anybody else is permitted to cover them. The Copyright Act, 17 U.S.C. § 115, allows anyone to record their version of the song under a compulsory license. The songwriter or publisher cannot refuse authorization or negotiate the rate.

In fact, under 17 U.S.C. § 114, if someone has a license to cover a song, they are permitted to sound exactly someone else’s recording so long as they independently create it.

The compulsory license is why Taylor Swift was able to record her own version of Earth, Wind & Fire’s “September.” Every time that song was performed, on the radio or stream or live, the songwriter/publisher’s royalties went directly to Albert McKay, Allee Willis, Maurice White, or their estates or publishers.

It’s also why Ryan Adams was able to record his version of every song on Taylor Swift’s 1989 album, notwithstanding an apparent lack of demand.

Swift had a very public and ugly falling out with her label Big Machine, and she tried to buy her “masters” back from the company. She’s financially successful enough that she should have been able to do that. But the label sold to a venture capital firm run by Scooter Braun, a man she’s accused of bullying her when she was a teenager. The talks fell through, and Swift couldn’t buy back her masters – the physical recordings or the sound recording copyrights.

Swift signed with a new label [MJ2] that gave her control of her masters, but she had no control over what happened with her previous albums.

So if copyright law didn’t prevent Swift from rerecording her songs, and sounding exactly like the original songs, what did?

Her contract with Big Machine.

It’s common for a recording contract to restrict the artist from rerecording their own songs, for a defined period of time. The record company doesn’t want the artist to release a competing version of its album.

Remember, copyright law doesn’t prohibit Swift from rerecording those songs, whether or not she wrote them. So if she released those rerecorded albums too early, she wouldn’t be infringing any copyright. But she would be breaching her contract.

Now she’s released from that contractual restriction. She can rerecord the material on her original albums, and she won’t need any authorization from the firm that owns the masters on those originals. At least, so long as she doesn’t use any part of those recordings. The newly recorded versions will compete with the originals in the marketplace. Swift is in the unique position where her new versions at a high demand. And, perhaps for to personal satisfaction, nobody associated with her previous record company makes a dime from any sale or stream or the newly recorded versions.

But what about those masters she assigned to Big Machine, now owned by someone else? Those were assigned, most likely for the life of the copyright. And the contract probably deemed those recordings works for hire. But that’s not the end of it, because the Copyright Act gives artists the right to get those copyrights back, even if they were assigned “in perpetuity”. I wrote about that right, and the many complications involved, in this post.

In short, Taylor Swift was already a wildly successful artist before she began to rerecord these albums, but she’s done a lot that other artists can learn from.

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Mark Jaffe

Mark focuses on the needs of start-up businesses and creative professionals, from the inception of their companies and throughout each phase of their development. He advises clients regarding their copyrights, trademarks, right of publicity, advertising, brand protection, the Digital Millennium Copyright Act, regulatory compliance, labor law, and service contracts. Mark also litigates on behalf of his clients when the need arises. Mark is licensed in New York and California.

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