Will Taylor Swift Change the Re-Record Clause?
If you streamed RED (Taylor’s Version) on Nov. 5, 2021, you helped break the Spotify record of most streams of an album by a female artist in a day. Taylor Swift made streaming history and is reshaping recording industry norms as re-record clauses in exclusive recording artist agreements change in the wake of Swift’s releases.
Swift arrived on the world musical stage 15 years ago after signing an exclusive recording contract with Big Machine Records at age 15. As with most exclusive recording agreements signed by a new artist with minimal bargaining power, Swift’s contract contained a provision limiting when she could re-record and release a different version of any song she recorded while signed to Big Machine.
Every Sound Recording Contains Two Copyrights:
When discussing music and who owns what rights, it's important to note that there are two copyrights involved in each musical recording. 17 U.S.C § 102. The copyright that attaches to the song covers the words, music, and the arrangement. Sound recordings or masters are defined as “works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work.” 17 U.S.C. § 101. The song copyright is owned by the songwriter or a music publisher who was assigned the copyright. The copyright in a particular version of a recording is owned by the artist or record label who was assigned the copyright. What this means is the music publisher will have the authority to approve licenses for use of the song. And the record label approves the uses of a specific recording of a song.
While Swift has no control over the copyright and licensing for the original sound recordings she recorded for Big Machine, she does have approval rights over the licensing of the songs she’s written. She re-recorded the songs from two of her first six albums. The first two albums — “Fearless” and “Red” — keep the original titles with the addition of “Taylor’s version” in parentheses.
Are Boiler Plate Re-record Clauses Changing?
Re-record clauses in performing artists’ contracts are typically dust-dry boilerplate, such as this:
You warrant you have the exclusive right to the services of [Named Artist] as required herein. You warrant that [Named Artist] will not perform for any Person other than Label (and neither you nor [Named Artist] will license or permit the use by any Person other than Label of [Named Artist]’s name or likeness) in connection with the recording or exploitation of any Record embodying a Composition recorded or delivered by [Named Artist] under this agreement prior to the later of (i) the date five (5) years after the date of Delivery hereunder to Label of the last Master embodying that Composition, or (ii) the date two (2) years after the expiration or termination of the term of this agreement or any subsequent agreement between Label and you or [Named Artist] or any other Person furnishing [Named Artist]’s recording services. Your agreement with the individual producer of each Master hereunder will restrict said producer from producing a Composition produced by such individual hereunder on another Master for any Person other than Label for at least two (2) years from the date of Delivery to Label of such Master.
In the draft clause above, date of “delivery” starts the clock running on the label’s re-record limitations placed on the artist. The artist signing the contract with a re-record clause has to wait five years before re-recording songs recorded while under the contract. The original label still owns the masters, but after five years an artist can establish a competing market for the music. In the past, an artist would have potentially waited decades to re-record songs because financially it did not make sense to bifurcate the purchasing audience.
Swift’s move has prompted a close examination of re-recording clauses in music contracts. Her recent contract with Universal Music Group gives her ownership of any new masters in addition to publishing rights.
You can listen to music lawyer Tamera Bennett and film attorney Gordon Firemark discuss re-record clauses at 17:25 in Episode 139 of the Entertainment Law Update Podcast.
Recording contracts are now appearing with language extending the label’s five years’ exclusivity to seven years. Other changes may include:
Clarification of recording master ownership in perpetuity
Stipulations that a re-recording of an entire album cannot appear with songs in their original order
Prohibitions against releasing a re-recording with content identical to the original (same songs, different order)
Requirements that licensing requests will first be directed to the original label
While this particular race may go to Taylor Swift, few bands or musicians have the financial resources to return to the studio to re-record old work. Swift does, and she is driven as much by her artistic passion as her financial interests.
New musicians are unlikely to get wording into their contracts giving them control or reversion rights to their masters. Their re-record rights will be limited, too. Will Swift’s action make re-recording and ownership of masters more challenging for new artists or give them a leg-up in their negotiations?
Please telephone or text my office at (972) 244-3210, or send me a message. I look forward to protecting the rights of content owners, content creators, record labels, performers, musicians, songwriters, and artists.
