[Guest post] Navigating the high notes: Taylor Swift's copyright dispute

The IPKat is pleased to host the following guest post by Katfriend Caroline Theunis (Bar of the Province of Antwerp) on the copyright troubles of music superstar and copyright-savvy artist Taylor Swift. Here’s what Caroline writes:

Navigating the high notes: Taylor Swift's copyright dispute

by Caroline Theunis

Cardigan, IPKat-style 

Rumor suggests that Taylor Swift is gearing up to re-release her album “Reputation”. This would be the last-but-one of her project re-recording masters into “Taylor’s Versions”.

This article delves into the saga’s central copyright issues and the concept of moral rights, and compares the situation in the US to how it might have unfolded under EU law.

Background

At the young age of age 15, Swift signed her record deal with Big Machine Records (BMR), assigning the copyrights to the first six studio albums to the label. It was indeed standard industry practice to assign emerging singers’ performers’ rights to the producer, in return for financial backing.

After Swift had found herself dissatisfied with the way in which BMR had made use of its rights, she decided to re-record the albums. This would make herself a right holder to her music again, in control over where and how it was being used.

The role of US copyright law and economic rights

As a signatory to the WPPT, the US grants performers economic rights to performances which are fixed in a sound recording. This gives them control over reproductions, distribution (mainly sales), rental and on-demand availability.

Taylor being a singer-songwriter, and thus the author of the musical components from which the recordings are made, she also holds the copyrights to the lyrics, sound, melody, rhythm etc. (assuming she has them materialized in a tangible medium, a very common law-like requirement for copyright emergence in the US (Title 17, §102, (a) USCA).

The economic rights assigned to BMR concerned those to the “masters” of the albums: the first recordings of the audio performances. Control over the masters equals control over how and where the music is being reproduced, distributed and communicated to the public.

Taylor however retained the copyrights over the compositions she created, enabling her to (re-)publish the music independently.

After all, making and using new recordings similar or even nearly identical to existing ones, are not infringing any US copyrights, as per art. 17, §114 USCA:

The exclusive rights of the owner of a copyright in a sound recording [of reproduction and of making derivative works] do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.

This is explained by producers’ rights aiming to preserve financial investments in production and distribution of these products (a need internationally recognized by treaties such as the Geneva Convention and the WPPT).

To preclude Taylor prematurely re-recording, which would devalue the copyrights assigned to the label, the contract contained a “re-recording restriction” clause, having effect for a certain period of time.

After its expiration she was free to produce new recordings from her music and distribute them as she wished.

In 2020 the first recording, “Fearless”, became eligible for re-recording.

Juxtaposition: EU

The re-recording strategy could have been applied in the EU as well, since the EU approach offers a similar division between content and phonogram rights. Having implemented the WPPT through the InfoSoc Directive, the EU indeed grants phonogram producers a neighboring right which is exclusively relating to each particular phonogram [art. 2, (c); art. 3, (b)].

EU law however often provides stronger bargaining power for authors and performers, particularly through collective management organizations. The DSM Directive further reinforced their position by introducing rights to “fair remuneration” when they transfer their exclusive rights. What constitutes “fair” is left to the Member States, but they should consider the “actual or potential economic value of the rights”, taking into account the author or performer’s contribution, as suggested by recital 73. Article 19 requires that they be provided with information about the exploitation of their works at least annually, enabling them to evaluate the “economic value” of their rights and, if needed, seek re-negotiation of the contract.

Another significant divergence lies in the recognition of moral rights.

The role of moral rights

Moral rights guard the creator's personal connection to their work. They allow them to control the integrity and attribution of their creations, and are maintained even after economic rights have been transferred.

Moral rights are more robustly recognized in the civil law tradition, and only very weakly embedded in US law. The principle of the Berne Convention considering moral rights inherent to any copyright, has been explicitly excluded from US’ implementation (Berne Convention Implementation Act of 1988 [Sec. 3]).

The US only recognizes moral rights to creators of certain visual arts (through the so-called “VARA”). The moral rights to recording artists as provided by the WPPT, are only preserved if they are explicitly reserved in the producing contract.

The limited scope of moral rights in the US meant Swift’s recourse to regain control was confined to strategic use of economic rights.

Had the dispute occurred in Europe, she might have had additional legal channels to challenge decisions of BMR she disapproved of. It should be remembered however, that the application of moral rights can still vary significantly between Member States.

By way of example, the potential utility of moral rights got underscored by Taylor distancing herself from the release of “Live From Clear Channel Stripped 2008”, a live album recorded when she was 18 which she had never wanted to have released.

While national legislation would still determine the burden of proof of derogation or prejudice, comments about the ‘Stripped 2008’ situation suggest an infringement could have been accepted, considering the civil law tradition’s strong emphasis on authors’ personal autonomy and self-determination:

Swift’s music, it seems, is the one place where she can speak from the heart without stumbling, and the presence of unauthorized releases like Live From Clear Channel threatens her autonomy even there. Predictably, it doesn’t exactly live up to the presentation standards of her past work.

Both Berne rights of paternity and integrity, as well as rights of disclosure and withdrawal could have arguably made up a strong case. Again, the recognition of these rights would depend on the applicable national legislation.

An example of successful invocation of the integrity right in France - where moral rights are rigorously protected - concerned the singer-songwriter Mylène Farmer. Her publisher Universal Music released a compilation album including songs she did not approve, while she also objected to the way the songs were edited. The modifications would have distorted her work in a way that harmed her reputation and original intent in relation to the music. The court ordered cessation of the album’s sale and awarded damages for the infringement of moral rights.

Comment

The moral implications of the story do seem to be at least as important as the financial side of the battle.

Swift's assertion that being unable to purchase her masters felt like "leaving behind her past" speaks volumes about the emotional investment artists pour into their work. She firmly believes that "the value of an album is, and will continue to be, based on the amount of heart and soul an artist has bled into a body of work."

The narrative is commonly viewed as a call for artists to exercise caution when giving their signature and for producers to deal fairly, particularly with those with less bargaining power. It underscores the rationale behind including protective measures in the DSM Directive, which are designed to safeguard creators’ financial interests.

It should however not be overlooked how it also underscores the pivotal role moral rights do play in the intellectual property market, in which artists often attach great value to maintaining the essence of their artistry in the face of commercial interests.