Bad Blood: Taylor Swift’s Ongoing Battle with Big Machine Records Raises Questions About Re-Recording Clauses

By Delilah Cassidy.

Taylor Swift is one of the best-selling singer-songwriters of all time. At fifteen, she signed her first record deal with Big Machine Label Group (“Big Machine”) and created six albums with the label. Upon expiration, Swift signed with Universal Music Group (“UMG”). Under the UMG agreement, she owns all original sound recordings of new songs (original sound recordings are “masters”). However, about eight months after her switch, talent manager Scooter Braun purchased Big Machine, including the masters to Swift’s first six albums. Swift publicized her frustration with the deal because she was not offered the chance to buy her masters. Swift said in an August interview that she will begin re-recording her Big Machine-era songs in November 2020, the first opportunity her contract with Big Machine allows her to do so.

“You Belong with Me”: Ownership of Sound Recording Copyrights:

Copyright protects original works of authorship. In the case of pop music, there are typically three layers of protection: music, lyrics, and a sound recording thereof. As is the case with Swift’s music, different entities may own the copyright in the music, lyrics, and sound recordings. Generally, the music and lyrics copyrights are broader than the copyright in the sound recording, the latter covering only the exact recording itself. The owner of the music and lyrics copyrights is generally free to make new recordings at any time.

Copyright ownership initially vests in the author of a work. However, all creations made by employees within the scope of their employment are deemed authored by the employer and thus, automatically owned by the employer under the works made for hire doctrine. Many recording agreements require musicians to agree that all sound recordings are works made for hire thereby irrevocably granting ownership of sound recordings to the record company. Although musicians like Swift maintain the copyright to the music and lyrics, seemingly allowing them to create new recordings at any time, record label contracts often include a clause prohibiting musicians from re-recording the songs they made with the previous label for a set period of time.

“I Knew You Were Trouble:” Swift’s Re-Recording Predicament:

In October 2019, the American Music Awards (“AMA”) announced that Swift won Artist of the Decade. Swift planned to perform a medley of her hit songs at the 2019 AMAs. However, according to Swift, Braun and Big Machine argued that performing her old songs on television would be re-recording her music before November 2020. Swift also stated that Big Machine would allow the license only if Swift agreed to never re-record her music and agreed to stop making public statements about Braun. Big Machine quickly denied all of Swift’s statements and, a few days later, granted licenses to the AMAs to stream post-show and re-broadcast via agreed-upon streaming platforms.

According to reports, Big Machine did not argue that Swift could not perform on live, broadcast television. The right to publicly perform is outside of scope of any copyright right in sound recordings. Instead, Big Machine’s apparent argument was based on the contractual, non-compete-like agreement that Swift would not re-record her music until late 2020. To the extent a television network stored a copy of the AMA broadcast (e.g., for later online streaming), those copies would be new recordings of Swift’s music, according to Big Machine.

“End Game”: Dissecting Big Machine’s Alleged Argument:

This is an unusual argument. Seasoned entertainment lawyers have said they have never seen it made before. This is unusual for a variety of reasons. First, record labels generally like musicians to perform songs because doing so promotes sales of the sound recording that the label owns. Second, the argument that recording a television show for future streaming is the same as re-recording a musical work is weak. Perhaps television recordings are technically recordings, but they are not the type of recording the re-recording clause was intended to prevent. Neither Swift nor Big Machine have published the contract terms at issue which might broadly or narrowly define the actions that could constitute re-recording.

Swift stated, “I feel very strongly that sharing what is happening to me could change the awareness level for other artists and potentially help them avoid a similar fate.” Learning from Swift’s situation, musicians considering a record deal should be cognizant of the power of ownership of sound recordings. Musicians today should be aware of re-recording limitations and, where possible, narrowly tailor them to recordings made in a studio following a similar process of creating the original sound recording.