Bad Blood: Taylor Swift and Artists’ Rights to Sound Recordings

Taylor Swift in 2019.

Taylor Swift in 2019.

Earlier this week, Nashville-based record label Big Machine Label Group was purchased by music industry heavyweight Scooter Braun for a reported $300 million. This acquisition includes the master tapes for all of pop megastar Taylor Swift’s six albums released to date. The Swifties, dedicated members of the musician’s loyal international fandom, have taken this particularly hard, as Braun and Swift have been at odds over the years, leading to widespread suspicion that the purchase of the masters may have been motivated in part by personal animus.

What does this purchase mean for Swift, and does she have recourse?

The term master recordings refers to the ultimate, highest quality record of an artist’s studio session. It is the base from which all production and mixing occurs to bring a final version to the masses. “Sound recordings are inevitably derivative works as they necessarily include an audible performance of a literary, musical, or dramatic work.” §8:42 Publication of Works Other Than Sound Recordings, 1 The Law of Copyright. The right to create a derivative work is part of the so-called Bundle of Rights afforded a copyright holder, and therefore in theory the exclusive right to create a derivative work belongs to the author of the underlying work. However, authors can sell or assign rights from their bundle to others, and in the music business it is common for artists to sign their rights to master recordings over to their record labels. This was the case for Swift, who signed her deal with Big Machine Label Group at age 15. Still, because Swift retains the copyright in the underlying work, Braun would be unable, for example, to license the recordings for use in a film without Swift’s permission. These limitations on Braun’s ability to exploit the masters for monetary gain may be of some comfort to Swifties everywhere.

In the two image captures immediately below from the US Copyright Office online registration database, you can see that while Swift and others own the rights to the underlying musical work “Look What You Made Me Do,” Big Machine Label Group LLC owns the right to the “Look What You Made Me Do” sound recording.

Because her contract, as is typical of record deals, apparently did not include any right to first refusal on a deal for her master recordings, nor does it appear to have required the label to allow her to match any offer, analysis by The Hollywood Reporter indicates she has no legal recourse.

Yet, Taylor Swift has to date been about as significant a force on the business side of the music industry as she has been as an artist. It is likely that a result of this highly publicized incident will be a rise in contractual language providing artists with enhanced ability to eventually purchase back their own masters from their labels. As artists have struggled for decades to find ways to regain control of their tapes, this could well prove a pivotal moment in Entertainment Law.

Besides legal rights and the ability to commercially exploit master recordings, the owner of such recordings also must tackle issues of preservation. The recent, shocking New York Times Magazine expose of the almost 200,000 master tapes lost in the 2008 Universal Studios fire explores the repercussions of leaving cultural patrimony in the hands of for-profit institutions that may not be able to ensure preservation.

Not Your Granddaddy's IP

Even beatniks have rights.

Even beatniks have rights.

Read a good book lately? If you flipped a few pages in, you probably saw a small copyright notice. Watched an episode of Shark Tank? You may have heard an inventor excitedly describe their patents, trying to start a bidding war. Planning to tune into the Super Bowl? The sheer volume of registered trademark symbols on the logos might make you light-headed before halftime.

As content consumers, we are generally familiar with the intellectual property protections available to writers, musicians, product developers, and sports leagues. But what about less mainstream creators? While some find remedy in the law, others must carve out protections elsewhere.

Consider hair. Styling is an art, and hairdos all across the country are crafted by experienced, licensed practitioners who apprenticed and studied their way behind the chair. Occasionally, a stylist will be lucky enough to create an iconic look such as the beehive, the fade, the moptop, the undercut, or the Rachel. These artists may not always be able to protect their intellectual property in the actual haircut, but they can certainly patent any technology they have invented to help you achieve that perfect look. For example the Bumpit, as seen on TV, patented since 2009.

Anyone can make a cheese cracker, but woe unto he who incurs the wrath of Pepperidge Farms by shaping that cheese cracker like a fish.

Meanwhile, in restaurants, chefs are having a moment as the internet and basic cable spread foodie particularity to every hamlet with a Main Street. Many people are surprised to discover these innovators possess few legal rights to their creations, as recipes are considered such a basic aspect of culture that they are not subject to copyright or patent. No wonder many chefs are increasingly protective of their food presentation, one creative aspect they argue they can protect, as dining rooms increasingly move to ban food photography in an attempt to safeguard their designer plating. Lawsuits regarding plating are increasingly common in America and around the world, as a chef’s unique vision can be spread from one continent to another before you can say “Instagram.”

Famous clown Emmett Kelly has been depicted on an egg, despite having been an American.

Famous clown Emmett Kelly has been depicted on an egg, despite having been an American.

In the United Kingdom, clowns have long banded together as a community to avoid redundancy in their individual face makeup design, by maintaining a privately held registry… of painted eggs. These eggs, each expertly illustrated by hand in the unique style of Britain’s most accomplished clowns, are kept on public display in an East End museum, housed inside a church. The collection is known to merrymakers worldwide simply as “The Clown’s Gallery.” An egg registry now also exists in the United States, where intellectual property rights in clown makeup are similarly unestablished. The world of clowning is relatively small, so this type of cooperative norms enforcement works more effectively than contentious, and potentially unaffordable, litigation.

Clubs such as LA's iconic The Comedy Store are sometimes said to display a special light to comics on stage when a known joke thief enters the building.

Clubs such as LA's iconic The Comedy Store are sometimes said to display a special light to comics on stage when a known joke thief enters the building.

The laughs are just as hearty, but the stakes much steeper, in the high dollar world of stand-up comedy. The guy chasing yuks at your local pub may rake in $50 on a good night, but at the top of the heap comedy generates millions every year for television executives, late night hosts, and elite comics. A top, household name professional comic might produce 20 minutes of solid material in a year. Therefore, the theft of even a single joke can represent a substantial portion of a comic’s annual output. (That George Carlin was able to churn out hour long specials year after year is part of why he will always be considered a comedy god.) A mere ten years ago, disputes over joke theft were likely to be handled almost entirely through community enforced methods such as banishment from clubs, or even getting roughed up in the parking lot. But as the monetary value of jokes continues to increase, lawsuits over joke theft are beginning to dot the landscape, and judges are holed up in their chambers contemplating the relative originality of competing Caitlyn Jenner jokes.

Mike Tyson's famous tattoo that started it all.

Mike Tyson's famous tattoo that started it all.

Finally, tattoos used to be an ultimate mark of life on the cultural fringe (one of P.T. Barnum’s “freaks” literally just had a bunch of tattoos), but these days about 1/3 of American adults sport some ink. While tattoo artists expect their work to wander the world in full public view, they are reticent to allow others to profit off their designs. In one suit that settled, the creator of Mike Tyson’s iconic tribal face tattoo sued the producers of the hit film “The Hangover 2” for precisely replicating his work, as a key plot point, without permission. As a result of this and similar actions, many celebrities who hope their distinctive ink will become part of their personal brand now seek copyright waivers from their tattoo artists as a standard part of the transaction.

Learn more about the weird world of intellectual property on the margins through these links:

Latest & Greatest – The Intellectual Property Handbook: A Practical Guide for Franchise, Business, and IP Counsel

Edited by Christopher P. Bussert and James R. Sims III  Published by American Bar Association Forum on Franchising and Section of Intellectual Property Law  KF 2979 .I4315 2016

Edited by Christopher P. Bussert and James R. Sims III

Published by American Bar Association Forum on Franchising and Section of Intellectual Property Law

KF 2979 .I4315 2016

Written for non-IP specialists, The Intellectual Property Handbook: A Practical Guide for Franchise, Business, and IP Counsel provides a substantive and practical overview of the most common intellectual property issues, including trademarks, copyrights, patents, trade secrets, cyber law, and social media issues. Besides describing the federal registration process, the authors explain basic trademark principles, everything from forms and types to the strength of the trademark and address the issues to consider when choosing a trademark. Equally important is the discussion of how to protect those rights and the types of legal actions to take to enforce those rights. In addition to highlighting domestic trademarks, the authors also cover domain names and trademarks on the Internet. Look for a discussion of the Anticybersquatting Consumer Protection Act and the Uniform Domain Name Dispute Resolution Policy adopted by the Internet Corporation for Assigned Names and Numbers.

Interested in copyright? The authors devote an entire chapter to the topic and define subject matter that is copyrightable, detail the rights granted by copyright, navigate the waters of the registration process, and address the issue of infringement.

Looking for information on patents? The authors have got you covered there as well. They explain what a patent is and what can be patented and help you with the patent application process. The authors also offer some patent protection strategies and enforcement remedies.

The chapter on trade secrets is full of useful information, such as what a trade secret is, its definitional elements, the steps to be taken to protect the trade secret, and the remedies available should the trade secret be misappropriated.

Lastly, the authors discuss data privacy and security, cloud computing, and social media and the IP concerns that may arise during the use of social networking services, including issues relating to trademark, copyright, personal information, and employee information.