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The Legal Provision That Could Get Taylor Swift Her Masters Back

And Why It's Important For All Artists



Introduction

At this point, most people are pretty well aware of the situation surrounding Taylor Swift and her master recordings. But, what I think fewer people know about is a legal provision in US copyright law that could actually help her get them back. In today’s video, I’m going to explain that process as well as some potential complications.


As a quick disclaimer, I am not a lawyer. This is not legal advice. This is also just an overview of all of the components because diving deep into the case law on this would make the video about a year long. I will be leaving sources linked in the description though if you want to do a deeper dive into these extremely complex issues.


And, because FRXDAY’s central focus is smaller artists, we’ve created a playlist to accompany this video of artists with under a million monthly who you might like if you like Taylor Swift.


Why Taylor Swift Doesn’t Own Her Masters

To start, I’m going to give a quick overview of the situation thus far:


In June 2019, Scooter Braun, a music manager that worked with Ariana Grande and Justin Bieber, purchased Big Machine Label Group, Taylor Swift’s former record label. Included in this deal were Taylor Swift’s master recordings for her first six albums.


Master recordings for a song are the final mix and are the source of any future copies of the song. Typically, record labels own their artists’ master recordings. Artists usually only own their own masters if they’ve either bought them back from the label at some point or if they were never signed to a label in the first place.


When Braun bought Big Machine, Taylor Swift put out a statement expressing her frustration with the situation. In it, she explained that she had tried to purchase her masters back from Big Machine but had been given unfavorable conditions, a claim which Big Machine’s founder, Scott Borchetta, denied. Because of the bad interpersonal relationship between Braun and Swift, Swift decided to re-record her old music so that she would have control over it.


Roughly a year later, Braun sold Swift’s masters to Shamrock Holdings, an investment firm owned by the Disney family. After attempting negotiations with Shamrock, Swift re-affirmed her decision to re-record her old music as Braun would still be profiting from her masters.

In response, Shamrock stated, "We made this investment because we believe in the immense value and opportunity that comes with [Swift's] work. We fully respect and support her decision and, while we hoped to formally partner, we also knew [Swift's re-recording venture] was a possible outcome that we considered.”


Since then, Swift has been releasing “Taylor’s Versions” of all of her older albums.

Now that we’ve gotten the background information on Taylor Swift’s masters dispute out of the way, let’s get into US copyright law and how Taylor Swift might be able to use it to get her masters back.


Types of Copyrights in Music

First, it’s important to understand the two types of copyrights that apply to music: musical composition copyrights and sound recording copyrights.


When we talk about musical composition copyright, we're referring to the protection of the original musical composition itself. This includes the melody, lyrics, harmony, and arrangement. Any unique musical elements that make the song what it is fall under this copyright.

When we talk about sound recording copyright, we’re discussing the actual recording of a musical composition. It covers the specific arrangement, performance, and production captured in the recording. In essence, it's about protecting a particular rendition of a song. As I mentioned before, a master is a sound recording and so it is protected under this type of copyright.


It's also important to note that the same musical composition can have multiple sound recordings by different artists or bands. Each sound recording is subject to its own copyright, separate from the copyright of the underlying musical composition. Additionally, ownership of these copyrights can differ, involving songwriters, composers, publishers, performers, and record labels, which can lead to complex legal considerations and negotiations.


When applying this concept to Taylor Swift, because she is the primary songwriter for her songs, she still owns the copyright to her musical composition. That access is what has enabled her to re-record her music. In doing so, she makes a new sound recording with a new sound recording copyright that she owns as opposed to the copyright from the original sound recording now owned by Shamrock.


Termination Rights

However, because the US government recognizes that sometimes newer artists can sign contracts that are not advantageous, there is a provision in copyright law called termination rights. These rights provide creators with the opportunity to reclaim control over their copyrighted works after a certain period of time, even if they've transferred those rights to someone else.


These termination rights usually kick in around 35 years after the initial grant of rights or 40 years after the work was created, whichever comes first. To start the termination process, the creator or their heirs must send a written notice of termination to the current rights holder within a specific timeframe. This notice formally signals the intent to terminate the grant of rights.


Once the termination process has been successful, the rights that were previously granted to another party return to the original copyright holder or their heirs. This opens up the possibility for renegotiating deals or even retaining full control over the work.


Importantly, termination rights do NOT apply to works made for hire. Works made for hire are defined as those that are either:

A. Made by an employee within the scope of employment

B. Commissioned, created under a written agreement that specifies it as a work for hire, and created for use in a motion picture, collective work, compilation, translation of a foreign work, or a supplementary work.


For category B, the work must meet all of the included criteria to be considered a work for hire.

Additionally, while not as crucially important to this discussion, it is also important to note that termination rights only apply in the US, and that the original publisher can still gain money from any derivative works (like movies) created while they owned the song.


Potential Complications

However, exercising these rights can be incredibly difficult—both because of the process that needs to be followed and because the grantees of the rights often try to fight the process. This leads us to a major potential complication:


Because termination rights do not apply to works made for hire, most record labels purposefully include “work for hire” wording about sound recordings in their contracts. But, many artists and lawyers contend that, while the work for hire wording may be included, the contracts do not meet any of the actual requirements to be considered work for hire.


Conversely, many record companies argue that albums are collective works and that, as a result, each master for a song is a contribution to a collective work. Combined with the inclusion of work for hire language and their belief that the contract is a commission, they argue sound recordings are works made for hire.


At this point though, American case law has yet to truly take a side and make a decision on this. Previous lawsuits have been settled out of court because a losing decision (and the resulting case law) would be incredibly detrimental to either side.


For the labels, it could mean the loss of all their old masters as more and more artists exercise termination rights. For the artists, it could cause a major blow to the benefits and security that termination rights currently offer. It’s also an expensive battle that many artists can’t afford—especially if the masters aren’t earning enough in the US to justify the legal expenses.


Taylor Swift’s Position

First, it’s important to know that Taylor Swift absolutely already knows about termination rights and has been deciding what to do. Her lawyer, Don Passman, is an incredibly well-respected entertainment lawyer and actually one of my linked sources.


But, I still wanted to make this video because I think it presents an interesting opportunity that many of her fans might not be aware of. It’s also an important provision to know about for artists of any size—not just the ones as successful as Taylor Swift.


Which brings us to the real question: will Taylor Swift exercise her termination rights?

And the answer is: I don’t know.


If Taylor Swift does decide to file a notice for termination, there will almost certainly be a court case. I can’t imagine any of the parties that currently control her masters voluntarily giving them over. If they were willing to, they likely would have already sold them to her because of the negative press they have received over this.


But, if any artist might be willing to see the issue played out and not accept a settlement, I think it would be Taylor Swift. She has a great team of lawyers, the money for a long and drawn out lawsuit, dedicated fans, and the strength to see the lawsuit through. Over the years, she has shown her incredible dedication to and passion for her music. If she does pursue this, I can’t see her settling.


However, she may determine she doesn’t want to file notice and deal with the resulting court case if there is work for hire language in her contract. It is possible for her to win, but it will be a long, drawn-out case with no guaranteed outcome. She’s already been willing to find unique ways to circumvent the issue, and, since all of the albums will have been re-recorded before any of them are eligible for termination, she might prefer to move on from the originals. Only time will tell.


When Each Album Could Be Terminated

If she does decide to file notice, the notification period for her early albums is coming up soon. For anyone interested, I’ve broken down the earliest date she’d be able to do that for each album. I’ve also created a more condensed infographic, which you can download through a link in the description if you want to share it.


  • Taylor Swift

    • released in 2006

    • earliest notification 2031

    • possible to revoke in 2041

  • Fearless

    • released in 2008

    • earliest notification 2033

    • possible to revoke in 2043

  • Speak Now

    • released in 2010

    • earliest notification 2035

    • possible to revoke in 2045

  • Red

    • released in 2012

    • earliest notification 2037

    • possible to revoke in 2047

  • 1989

    • released in 2014

    • earliest notification 2039

    • possible to revoke in 2049

  • Reputation

    • released in 2017

    • earliest notification 2042

    • possible to revoke in 2052


Conclusion

So that’s how Taylor Swift could use termination rights to get her masters back. If you’ve enjoyed this video, please give us a like or subscribe. I’d also love to hear your thoughts in the comments below, particularly about what you think Taylor Swift will do.


If you have any questions about anything I said, I’ll try to answer those in the comments as well. If there are a bunch of questions, I can try to make a follow up video answering them all.

And, if any copyright lawyers are watching this, hopefully I didn’t butcher my summary.


Video:

This post first appeared as a video. You can find it here:


Sources:

General Information:

Taylor Swift Re-Recording:

Taylor Swift Interviews:

Termination Rights for Sound Recordings:

Taylor Swift Music Videos:
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