Rusty Close and Austin Padgett discuss why Taylor Swift re-recorded her original six albums and explain the distinction between publishing rights and master recording rights.
In this episode, Rusty Close and Austin Padgett discuss why Taylor Swift re-recorded her original six albums. They explain the distinction between publishing rights and master recording rights, noting that Swift owned the publishing rights but not the master recordings. When her original label was sold, Swift decided to re-record her albums to regain a measure of control over her music. This strategic move highlights the complexities of music copyright and artist leverage in the industry.
No Infringement Intended is your go-to podcast for exploring the fascinating intersection of intellectual property and pop culture. Join hosts Rusty and Austin as they delve into the IP issues that shape the world around us. From Taylor Swift's re-recording of her music to the murky legalities of fan fiction, this podcast offers insightful discussions that both educate and entertain. Tune in for a fresh perspective on how IP influences the media and personalities you love.
No Infringement Intended Podcast — Why Did Taylor Swift Re-record Her Albums?
Hosts: Rusty Close and Austin Padgett
Recorded: October 3, 2024
Date Aired: November 14, 2024
Austin Padgett:
Hey folks. Welcome to No Infringement Intended, the IP podcast from Troutman Pepper. You've got myself, Austin Padgett, and my colleague Rusty Close here for our very first episode.
Rusty Close:
Austin, we both have pre-teenage daughters. How much Taylor Swift content is there going on in your house?
Austin Padgett:
How to phrase this? More than desired. But no, my daughter, I think knows probably half the catalog. She's not a Swiftie, so to speak, but we know the songs. I think they're ubiquitous in the culture these days. How about you?
Rusty Close:
Well, I think you're probably doing a better job of maybe keeping the music out of your house and introducing them to music that's more our speed. But both of my daughters, 12 and 9, refer to themselves as Swifties, write Taylor Swift type content on their notebooks and often their arms, so it's something that we see quite frequently. Have you ever heard your daughter talk about, she heard that Taylor Swift is re-recording her albums and she wants to listen to Taylor's version?
Austin Padgett:
We have had that discussion at the dinner table one time, which was thrown back in my face in that I have bought the same album at multiple times as well, I don't know if that's come back at you.
Rusty Close:
No, I think theirs is more from a streaming perspective and seeing there's one version of Shake It Off, and then there's Taylor's version of Shake It Off, and then that gets the discussions going at school with the other 12-year-olds and 9-year-olds, and it raises the question that we're going to talk about today which is, why on earth did Taylor Swift go back and re-record her original albums?
Austin Padgett:
Fair question.
Rusty Close:
So as a little bit of background, right, Taylor Swift signed a six-album deal with the record label Big Machine when she was 15 years old, label out of Nashville. She recorded those six albums. Can you name all of them or any of them?
Austin Padgett:
I know one is Fearless.
Rusty Close:
There you go. There you go. Five more to go.
Austin Padgett:
I'm guessing there's a Taylor Swift in there, a self-titled?
Rusty Close:
Bingo, first album.
Austin Padgett:
Okay. After that I'm Fear, is that one of them?
Rusty Close:
Fearless.
Austin Padgett:
I already said that one, didn't I?
Rusty Close:
Yeah, so she didn't have Fear and Fearless.
Austin Padgett:
Fearless, right, she's covering all aspects of the fear spectrum.
Rusty Close:
That could be a two-album, two sides kind of thing. So Taylor Swift, Fearless, Speak Now, Red, 1989, and Reputation.
Austin Padgett:
1989, that's the other one that I've kind of known about more than the others. Yeah, for sure.
Rusty Close:
You're saying that's more at the top of your personal list of Taylor Swift?
Austin Padgett:
Right? It's full of bangers.
Rusty Close:
Yeah, absolutely. You tell me if this is common, but as part of her cash advance, she agrees to give the masters to those first six albums to the record label.
Austin Padgett:
Yeah, for sure. I mean, the scope and the length of a record deal varies, of course, but usually the record label's going to walk away with the masters, and we can talk about what that is in a little bit.
Rusty Close:
Well, let's do that. So when somebody says that the record label gets the masters, what are the concepts that go into what a recording artist will own? They're writing their own songs, maybe they're writing the music, maybe they've got a co-writer, but then you've got this sort of finished product, and how do we group those things up?
Austin Padgett:
This is the important concept, like 101 when you come to talk about music copyright stuff. And when I say people are often confused by, what I mean is I've been confused by this, and so this is the way that I've come up with thinking about it. Because you'll hear people talk about, oh, so-and-so has the publishing rights or so-and-so has the other rights. In music there are so many types of rights, that you'll lose yourself in how they're getting carved up every which way. The way I think about it is works. So even backing up further to copyright 101 before we get to music copyright, the work is what is protected by copyright. So as soon as you as an artist come up with something and put it down in what they call tangible form, you've created a copyrighted work that can be protected. In music that's coming up with the song, let's say.
And so when my heart has been broken, I come up with all my breakup songs and I write down the lyrics, and I write down the chords above them, what I've strummed out on my guitar, that's what is going to be referred to as the publishing rights. That's the essence, the song itself is being captured there, and the copyright in that work is what we're talking about.
Then there's a separate copyright that's related, but it's entirely separate from the view of copyright law, and that is the copyright in the master recording. So the master recording is the first ever full-fledged recording of this song. You go to a studio typically, and you have all sorts of musicians and maybe some producers, lots of participation in creating the master recording. Usually, your label is footing the bill for that. Those are the master recording rights. And the master recording is a separate work because it's an embodiment of that song that you created sitting on your bed after your heartbreak. So, you've got the publishing rights or the song itself, and then you have the master recordings or the recorded version of that song.
Rusty Close:
So it's kind of two buckets, it sounds like. It's the thing you sat down and put down on paper. Maybe it's just the lyrics themselves, maybe it's the lyrics and sort of the instrumentation, the notes and what that's going to look like. But then you have this totally separate thing where you've gone into a studio, maybe you've got a backing band, there's the recording, the production, and all of that, but that physical, or digital in this age, end product, that's a separate bucket of rights.
Austin Padgett:
That's right. And so when you have a recorded song that gets played, both rights are getting triggered in that event. There are other events, for example, if you and I started our Taylor Swift cover band, we can talk about the name of that band later. We wouldn't be playing the recording, so we don't need those rights, but what we'd need to have is some sort of access, and that's probably a future episode. How do you get access to cover those songs, whether to record them or to play them live, but you don't need the rights to the master recording, not using that particular work.
Rusty Close:
In a live performance.
Austin Padgett:
Right.
Rusty Close:
Yeah, I mean, our cover band episode is certainly forthcoming, so everybody stay tuned for that. This structure of Taylor Swift signing a contract when she's 15, giving away the publishing to the record label, and I think giving it away is probably a strong characterization, but my understanding is that's an entirely conventional thing that happens in the music industry.
Austin Padgett:
Oh, for sure. And it's not necessarily giving it away in the sense that she doesn't get anything out of it. I mean, your typical record deals going to have, you're going to assign us these rights in the master recording that is created. A lot of times you'll keep your publishing rights, so the rights in the songs themselves, because if you're the singer and songwriter, we've got to pay you twice out of that. So you're going to get your royalties as a songwriter, and then we're going to come up with some royalty scheme in the agreement itself that says, okay, for every X number of records we sell, you get something. And that can be a percentage, it can be based on other types of things, and it might escalate, you might get more as you sell more, all those sorts of things.
So the economics of the record deal are a little separate. There's going to be some sort of incentive there, but at an early age, before you've recorded anything, you're not going to have the same leverage to get as much as you could get later when you're negotiating your second record deal.
Rusty Close:
It doesn't sound like Taylor Swift at 15 was taken advantage of in any way by the music industry, more or less than anyone else would've been at that early stage in their career.
Austin Padgett:
Yeah, I mean, we don't know the particulars of that agreement, but it certainly sounds like it was kind of a standard, you assign to your label these rights, and you're going to go out there and produce a number of records. We'll cash in on them, we'll pay you your percentage, and then there's a term to the agreement. Sometimes there are options, so we don't really know all of the terms, but we've gotten a really good sense that at least Taylor Swift was not happy about how the structure was set out.
Rusty Close:
So let's talk about that. She records the six albums, ostensibly she has a good relationship with Big Machine for many years. I think it's lucrative for the label and for Taylor Swift, and I think for her dad, who I think owned a piece of Big Machine, but something happens, right? And a dispute arises. At a high level, Scott Borchetta, who owned the label, decides to sell the label, which includes the master recordings of her first six albums, and he sells them in 2019 to Scooter Braun for $300 million. Do you know anything about Scooter Braun?
Austin Padgett:
Tell me more, tell me more, Rusty.
Rusty Close:
I think the first thing that should come to mind is Justin Bieber.
Austin Padgett:
Yes.
Rusty Close:
I think Scooter Braun is most well-known for discovering Justin Bieber on YouTube at an early age. So Scooter Braun, he's involved in the music business in some sort of way, particularly through his relationship with Justin Bieber, and eventually I think he becomes the manager for Kanye West, and that's sort of where the trouble begins. Taylor Swift has a history with Kanye West. People might remember, she was accepting an award, Kanye West comes onto the stage, interrupts her, it becomes a big to-do. Then Kanye West records a song that refers to Taylor, and it just becomes bad blood between everyone. On the one hand, Taylor Swift wants to own her master recordings, which I think is understandable for any artist, but on the other hand, her record label was sold to someone who she specifically would not want to own those recordings.
Austin Padgett:
That's right.
Rusty Close:
Therein lies the big problem. It wasn't necessarily that she didn't own her master recordings. That's kind of understandable, it's a business decision. She really seemed to disagree with Scott Borchetta's decision to sell them to Scooter Braun, of all people. So I think that gets us to the point where she's thinking, "Okay, well, I don't own my masters, which I really wish I did. I really don't want him to own them. And what sort of recourse do I have?" You said earlier we got the master recordings on one side, we got the publishing on the other side. No question that she owns the publishing. So what does she decide to do?
Austin Padgett:
She starts up her own Taylor Swift cover band, in a way.
Rusty Close:
I mean, in some ways I think that's sort of correct, right?
Austin Padgett:
Yeah. I mean, absent an agreement otherwise, she could have, right? Because during this whole time period, you and I could start our Taylor Swift cover band and record those songs and sell them, and there's not anything anyone could do about them, as long as we followed the rules and paid what we need to pay. That's a special provision of the Copyright Act that's really worth its own episode. However, it seems that Taylor Swift could not do that because there's some sort of clause in her agreement with Big Machine that's almost like a non-competition clause to her own recordings, which makes sense.
Rusty Close:
I think what it was in the agreement was a re-recording clause, and I think the language based on various media accounts is she couldn't re-record the albums for six years. And I don't know if it's six years after their original release, or I don't know exactly what the timing was, but I think that's fair to assume based on the sort of cadence as she's re-released these albums, it's been a progression. So, okay, what's she going to do? She again doesn't want Scooter Braun to profit from her material, her master recordings, and so she makes this decision, I'm going to re-record all six of my original albums. My question is, did she have a right to do that?
Austin Padgett:
Yeah, and that's the good question, right? This is the essence of what we need to come out of this episode with, is this dual distinction between the underlying work, the song, and the rights and the copyright in the master recording. They're wholly separate. She maintained from all that it seems her publishing rights, which is not unusual, a lot of songwriters do. And so then she's able to take that work and go and re-record it.
Now, you and I know that that's somewhat more complicated because there is another work, the original master recordings that were made that exist and are owned, but it seems that there hasn't been, as far as I know, any lawsuit or complaint alleging some sort of copyright violation of those master recordings. So how that was negotiated, or whether that was a strategic decision, we just don't know the background of it. But that's the lesson of this episode is that there are two copyrights at issue, one of them in the song itself, and one in the master recording.
And from that, we're going to be able to take and go to other episodes and easily talk about the rights that flow from both of those, because that's how you have to think about. There are two works. There's the song, the Master Recording, and then there are other types of rights like the synchronization right, the right to be able to take a song and sync it up audio-visually, that's a separate right that's negotiated, and that's one that belongs more in the master recording bucket, because you need to have a recording of the song, but you also trigger the rights in the song itself, so that sort of publishing aspect as well. And if you don't understand that, you're going to get lost really quickly once you start talking about copyrights and music.
Rusty Close:
So it sounds like legally speaking, there's absolutely no reason she couldn't go and re-record these albums absent the contractual agreement that she wouldn't re-record them for six years. Now, this seems like if you follow the music industry, if you're interested in music at all, you hear countless stories of artists who signed bad record deals early in their career, and based on this, it seems to me that any artist who owns their own publishing, absent some contractual limitation, could re-record their own masters, right? Because if they wanted to get those rights back in some way, shape or form, have their own Taylor's version, what would stop them from doing the same thing?
Austin Padgett:
It's probably the marketplace, right? We're in a different marketplace than you and I grew up with early on in our lives, records, and then tapes, and then CDs, and now we're digital streaming. And I have actually bought the same record multiple times. It's usually in a different format. Though I do drive a 2004 truck that has a tape deck in it, so I'm pretty well set up to be able to roll with just about anything in any format. But there are certain things that are no longer... Things that I have in my CD collection that aren't published anymore. Someone owns the rights to those things, to those records, but they're not making really any use of them because they have no economic potential. And so that's part of the challenge here, and leverage between an industry and an artist is another aspect that will come up in a lot of other conversations that we'll have.
In the copyright aspect, there are different ways that the Copyright Act has addressed that, but absent that, a lot of times it's just the marketplace and how you deal with that. So you have an artist who is continually on fire here, and can probably resell her albums, but not only that, now has new albums where people are still trying to access her earlier songs. Perhaps a commercial wants to be shot and they want to use one of the earlier songs. Well, they need a recording of it, and now she has one to offer them that's hers, and she gets more financial benefit out of it, likely, than she would out of the previous master recording that she does not own. So that's the strange situation here, is that you have the economics of this deal, and a marketplace and distribution channels that help create disability now, where you don't necessarily need physical distribution to happen. You can go and access that and make it happen digitally now.
Rusty Close:
So it sounds like it's not that Taylor Swift came up with something that nobody had ever thought of before. I imagine they had thought about it, which is why there was a clause in her contract that said she couldn't re-record.
She was uniquely positioned with a fan base who is just rabid for anything she does. There's streaming, where our daughters can go on and see, well, okay, here's “Shake It Off” and here's “Shake It Off (Taylor's Version)”, I want to listen to that one instead. And so if you're Aerosmith and you had a bad contract early on, you could re-record Toys in the Attic, but the people who had bought Toys in the Attic may not have the appetite to rebuy it. Now, we probably did because we bought it on vinyl, and then we bought the tape, and then we bought the CD, and we probably bought a re-release at some point, but we weren't re-buying Toys in the Attic and Toys in the Attic (Aerosmith Edition). The market just didn't support that. And in Taylor Swift's case, she was a unique talent with a unique fan base that would allow for that.
Austin Padgett:
I think that's right. I'll put one pin in this for a future conversation as well in that, thinking about this leverage item inside the Copyright Act, there's this built-in provision that allows artists to claw back their rights many years after they sign some sort of transfer agreement like this. We'll talk about that later.
But you may have seen some news about, particularly bands from the 70s, because of the time that has to elapse. You have to think about bands earlier on through the 70s and the 80s right now as to when that window is open, and when it closes as to when they can come back and either take their rights back, or renegotiate their agreements to a more advantageous position with their label, with their publisher, whoever it might've been that they gave rights to later down the road.
Again, that's for a future conversation, but it goes to this theme of leverage that we're talking about, and when you sign something early on, you don't know the value of the work because it hasn't been created, and you don't know the marketplace as well, and then later down the road you see, oh, that was worth a lot more. They got such a benefit out of the deal. How can I reposition myself? And Taylor Swift found a unique way to do that, even it sounds like within the scope of her agreement, abiding by those terms, found a way to leverage her place in the marketplace and create these new versions of the songs that will live on probably past her earlier master recordings.
Rusty Close:
And I think she didn't necessarily have the leverage to buy back her masters in the way that she wanted, but she had a different kind of leverage in who she was and who her fan base was that allowed her to come up with this sort of different approach, Taylor's versions, and deal with it that way.
So if we go back to our original question, why did Taylor Swift re-record her original six albums? I think the answer is, she owned her publishing, she didn't own her master recordings. She tried to get those back, or claims she tried to get those back, but her record label was sold to Scooter Braun who she had a uniquely, let's say, contentious relationship with. She didn't want him to be able to profit from those albums in any way, shape or form. So she thought, huh, I'll re-record them, there will be two versions out there.
Most people, let's say, have already bought my original version. He's not going to benefit from that. And if they're going to buy it again or listen to it again, stream it again, if it's going to be used in a commercial, a documentary, they're going to use my version. And so she kind of cut him off at the knees. It's kind of smart. Now, all that to say, Scooter eventually sold his company to Disney, or a private equity group that was controlled by Disney, and made a ton of money. So this worked out fine for him at the end of the day, despite the online barrage of bad and nasty comments that I think he got from Taylor Swift fans.
Austin Padgett:
Oh, I'm sure.
Rusty Close:
Which I think was difficult for him and his family. I think it's worked out fine for everyone at the end of the day.
Austin Padgett:
I was real worried about it Rusty, how everyone fared. I mean-
Rusty Close:
I know, I know.
Austin Padgett:
There was almost as much drama in the situation as my 12-year-old brings home from a day in school, so.
Rusty Close:
I think that makes it pretty fitting, right? We've got drama involved in this situation. Our 12-year-olds and 9-year-olds bring plenty of drama into the house, and that puts a nice bow on this question of, why did Taylor Swift re-record her albums? I think we got to the bottom of it.
Austin Padgett:
I think so too. I think our lasting question for ourselves is, will we have the chance to re-record these episodes so that we can further monetize them in the future?
Rusty Close:
I think that makes sense. Does the firm own these recordings, right? They don't own our thoughts, but do they own these recordings? That's the question we'll be dealing with for years.
Austin Padgett:
Right. I'll get an associate putting a memo together just for us on that, but I think that brings us to the conclusion of this one.
Rusty Close:
Yeah, I hope everyone enjoyed it. I hope you'll come back and think through different types of questions that have intellectual property implications, but are also more general to the culture that we live in, and we look forward to talking to you next time.
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