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.

An Important Day in Constitutional History: Escobedo v. Illinois, 378 U.S. 478 (1964)

Escobedo - Sixth Amendment.png

During Constitutional Law Resource Month at the Harris County Law Library, we are taking a look back at a landmark Supreme Court decision, Escobedo v. Illinois, 378 U.S. 478 (1964). Tomorrow marks the 55th anniversary of the decision and its role in reinforcing our Sixth Amendment rights.

Danny Escobedo was arrested without a warrant on January 20, 1960. As the prime suspect in the shooting death of his brother-in-law, he was held for questioning for more than 18 hours. Escobedo asked repeatedly for his attorney to be present, but repeatedly, his request was denied. It was only after being indicted that Escobedo was granted access to a lawyer, violating his Fifth and Sixth Amendment rights to due process and access to counsel. The Miranda v. Arizona, 384 US 436 (1966) decision just two years later implicitly overruled Escobedo, but it was, nonetheless, an important step in the process toward ensuring a constitutional right to counsel for the criminal accused.

75th Anniversary of D-Day

Not Forgotten

Today, we remember the sacrifices of the brave men and women who served our country in World War II. On June 6, 1944, more than 150,000 troops composed of U.S. and allied forces landed on the beaches of Normandy, France to fight the forces of fascism. (see Features: D-Day). Today, 75 years later, we honor those troops who fought for the very existence of democracy across the globe.

Operation Overlord

The invasion of Normandy, named “Operation Overlord,” was the culmination of months of planning and preparation. On the morning of the invasion, General Dwight D. Eisenhower issued his “Order of the Day,” commanding commencement of the operation. The order informed troops that they were “about to embark upon the Great Crusade, toward which we have striven these many months” and that they would “accept nothing less than full Victory!”

Find more on General Eisenhower’s D-Day preparations and orders online from the Eisenhower Presidential Library.

An Optimistic Proclamation

Against the backdrop of anticipating the greatest battle in American history, President Franklin D. Roosevelt issued Proclamation 2614 on May 3, 1944, encouraging his fellow Americans to celebrate Flag Day on June 14, 1944. He did so with knowledge of the stakes of Operation Overlord and the possibilities for failure. And yet, FDR’s optimism rings loudly, even 75 years later, in this paragraph found on the Harris County Law Library shelves in 58 Stat. 1134:

Let us then display our flag proudly, knowing that it symbolizes the strong and constructive ideals—the democratic ideals—which we oppose to the evil of our enemies. Let us display our flag, and the flags of all the United Nations which fight beside us, to symbolize our joint brotherhood, our joint dedication, under God, to the cause of unity and the freedom of men.