Better Than Revenge: An Artist’s Right to Re-record 

Josie Croce, Contributing Member 2023-2024

Intellectual Property and Computer Law Journal

           

With the release of the re-recorded album 1989 (Taylor’s Version) on October 27th, 2023, Taylor Swift is now four albums into re-recording her first six studio albums.1 Swift’s re-recordings are record-breaking: Fearless (Taylor’s Version) was the first re-recorded album to ever top Billboard’s charts and performed better than the original album, when considering the streams and sales of its first year.2 Red (Taylor’s Version) doubled the success of Fearless (Taylor’s Version) from 1 million to nearly 2 million equivalent album units in its first year, and broke Spotify’s record for the most-streamed album in a day by a female artist.3 

Swift announced her decision to re-record in 2019 after her initial label, Big Machine Records, sold her sound recordings4 to Scooter Braun’s Ithaca Holdings, an investment holding company, without giving her the chance to buy them.5 With the re-recording of her albums, Swift joins other music legends who have re-recorded their music, including The Everly Brothers; Frank Sinatra, and Def Leopard.6 

Although copyright ownership of sound recordings often belongs to record labels or investment companies and not to the artists themselves, some artists reclaim creative and financial control by re-recording their music. Copyright law expressly authorizes an artist to re-record a song, even when the copyrighted musical composition and sound recording are owned by someone other than the artist.  

By re-recording, an artist can own the copyright and take control of all the rights and revenue associated with copyright ownership. Even beyond earning revenue from royalties and licensing, this sense of ownership permits artists the freedom to take command of their career and their creativity, and to reinvent works from their past. 

Copyright Law on Sound Recordings, Musical Compositions, and Re-recording 

Under copyright law, a sound recording is the “fixation of a series of sounds (e.g. a particular performance),” authored by the performer(s) and producer(s), and fixed in a phonorecord.7 The owner of the sound recording has the exclusive right to reproduce the work, prepare derivative works, distribute copies or phonorecords of the work to the public, and perform the work publicly by means of digital audio transmission.89 

On the other hand, a musical composition is the “melody, rhythm, and/or harmony expressed in a system of musical notation and accompanying words,” authored by songwriters and fixed on a copy (typically, sheet music).10 The owner of the musical composition has the exclusive right to reproduce the work, prepare derivative works, distribute copies of the work to the public, perform the work publicly, and display the work.11 

A sound recording “embodies” the musical composition, for it is the arrangement of music notes and lyrics that is being expressed as an artist records their performance and fixes that recording as a phonorecord.12 Multiple sound recordings may embody a particular musical composition; this is due to the compulsory licensing scheme authorized by § 115.13 Under § 115, anyone is entitled to make a mechanical reproduction of a copyrighted musical composition if they pay a statutory fee.14 A mechanical reproduction refers to any fixation of that musical composition in a phonorecord, including in a CD, vinyl record, or digital download.15 The mechanical reproduction may not alter “the basic melody or fundamental character” of the composition, although it may alter the musical arrangement “to the extent necessary to conform it to the style or manner of the interpretation of the performance involved,” and this is often referred to as a “cover” of a song.16 

A new, re-recorded sound recording may exactly imitate another copyrighted sound recording. Section 114(b) limits the scope of the rights of the owner of copyright in a sound recording by expressly authorizing the re-recording of a sound recording; “The exclusive rights of the owner of the copyright in a sound recording under clauses (1) [making copies] and (2)[creating derivative works] of section 106 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 a copyrighted sound recording.”17 So, a re-recording of song, or “an independent fixation of other sounds,” does not infringe on the original sound recording “even though such sounds imitate or simulate those in the copyrighted sound recording.”18 

 In essence, the compulsory license permits any artist to create a sound recording that embodies a copyrighted musical composition without obtaining permission from the owner of the copyrighted composition. Further, an artist may re-record a sound recording without infringing on the original, no matter how close the re-recording sounds to the original. In these ways, copyright law permits artists to give new life to music, despite not owning the copyright to the musical composition or the sound recording.  

Ownership of and Royalties from Sound Recordings 

When an artist signs to a record label, they typically agree to give copyright ownership of their sound recordings to the record label. As owner of the copyright, the record label has the authority to decide how the recording is to be utilized and exploited, including (1) whether to license the recording for use in films, television shows, or commercials, (2) whether the music can be performed at concerts and large public venues, and (3) how the music is to be released for sale and use on streaming platforms and through other distribution mediums.19  

 In exchange for ownership rights, the record company gives artists royalties, or a percentage of the income earned through the streaming and sale of the song.20 The main sources of royalty revenue are as follows: mechanical royalties, generated through the physical and digital reproduction of a work; performance royalties, generated through the public performance of a work; synchronization royalties, generated through licensing the work to be paired (or “synched”) with visual media like films, television, commercials, and video games.21 

Trend in Music Rights Acquisitions 

Recently, the market for buying and selling music rights has boomed; it was estimated that at least $5.05 billion was spent on catalog acquisitions in 2021.22 About half of this sum was spent acquiring rights directly from artists, songwriters, or their estates; the remainder of this sum was spent by labels and music publishers buying up other companies’ portfolios.23 Among the deals included in this estimation are Sony Music’s acquisition of the entire Bruce Springsteen catalog (for over $500 million), BMG’s acquisition of the entire Mötley Crüe catalog (for approximately $90 million), and KKR’s acquisition of Kobalt Capitol’s catalog which includes 62,000 copyrights spanning multiple genres (for approximately $1.1 billion).24 

Buying music catalogues is an attractive and reliable investment for companies like Hipgnosis Song Fund Ltd. (HSFL), Primary Wave Music, Kobalt Capital, and Lyric Capital Group.25 These companies pour massive sums of money into purchasing the copyrights to musical works and then receive the royalties from the copyrights. HSFL explains their business model as “sustainable earnings, uncorrelated to global capital markets, with sources across the spectrum of music consumption patterns made of millions of microtransactions such as streaming, physical purchase, downloading, synchronization, performance, licensing, and merchandising.26 In short, revenues from music royalties are stable, independent from market fluctuations, and have high rates of return from a multitude of sources.  

Re-recording: Financial Control 

In general, there are two main reasons an artist re-records: for financial control and for creative lead.27 By re-recording their work, artists can take ownership of their work and receive revenue from their intellectual property. 

Not only do artists receive mechanical royalties from the streaming and sale of their new re-recording, but they can also receive synchronization royalties from licensing their re-recording. Taylor Swift, after she decided to begin re-recording her works, declined many requests for synch licenses for use of her original sound recordings alongside visual media.28 She explained, “the reason I’m re-recording my music next year [in 2020] is because I do want my music to live on. I do want it to be in movies, I do want it to be in commercials. But I only want that if I own it.”29 In this way, Swift can arrange licensing deals herself, receiving the profits and cutting out the company who owns the copyright of her old works.  

Although not all re-recordings can out-perform the original versions, possessing a re-record gives artists leverage. Like Swift, other artists who own a portion of their publishing and/or have the authority to approve licensing requests can condition sync licensing on the use of the re-recording.30  

Re-recording: Creative Lead 

Beyond the financial incentive, re-recording allows artists to revisit their songs and revive them with contemporary and innovative features.  

An early example of an artist re-recording their music is Frank Sinatra, who left Capital Records in 1960 and founded his own Reprise Records.31 Sinatra was motivated by the desire to own the copyright to his sound recordings, to retain creative control of his own works, and to create a label where other talented artists could also retain creative control.32 Shortly after the founding of Reprise, he released Sinatra’s Sinatra, an album mostly comprised of re-recorded versions of his previous hit songs. Reprise Records was eventually purchased by Warner Bros. but kept its reputation as a label where artistic independence flourished.33 

Gloria Gaynor re-recorded her hit song “I Will Survive,” with each version reflecting a different period of her life and serving different audiences.34 The initial recording reflected Gaynor’s resilience as she underwent spinal surgery and the loss of her apartment; the second recording reflected Gaynor’s career conflicts with her (now ex-) husband who was also her manager.35 The second recording, revived 12 years after with contemporary beats, was intended for the new generation of women; as Gaynor explained, “I wanted to introduce it to a new generation…It had become like a family heirloom, and people were passing it down. Women were playing it for their daughters, and the daughters were playing for their friends. And so I just wanted them to have their own recording.”36   

Conclusion 

Despite the trend in music industry towards sound recording catalogs being sold/held by investment companies, copyright law protects an artist’s ability to regain some revenue and creative freedoms by re-recording. Although the financial incentives for re-recording may be limited, the creative incentives are expansive. Artists can re-record to imitate the original sound, like Sinatra, or they can re-record to create a contemporary sound, like Gaynor. Further, the experience itself is worthwhile. For Swift, re-recording the Fearless (Taylor’s Version) album was a “fulfilling” and “emotional” experience.37 

  1. Alli Rosenbloom, Taylor Swift releases ‘1989 (Taylor’s Version)’ with bonus ‘Bad Blood’ remix featuring Kendrick Lamar, Cnn (Oct. 27, 2023, 10:36 AM), https://www.cnn.com/2023/10/26/entertainment/taylor-swift-releases-1989-taylors-version/index.html ↩︎
  2. Mariah Espada, Taylor Swift is Halfway Through Her Rerecording Project. It’s Paid Off Big Time, Time (Aug. 10, 2023, 9:46 AM), https://time.com/6292599/taylor-swift-speak-now-rerecord-project/ ↩︎
  3. Espada, supra.  ↩︎
  4. The term “master recording” or “masters” is used to refer to the original sound recording and “slaves” is used to refer to subsequent copies. This derogatory terminology, rooted in American chattel slavery, is often found in music contracts throughout the industry. In this blog post, I will use the term “sound recording” to refer to the original sound recording. For further discussion, see Dina LaPolt, Why the Music Industry Must Remove the Racist Term ‘Master Recdording’ From Its Vocabulary—Now (Guest Column), Variety (Apr. 11, 2022, 12:49 PM), https://variety.com/2022/music/opinion/remove-master-recording-slave-1235230283/   ↩︎
  5. Espada, supra. ↩︎
  6. Kyle Munzenrieder, Taylor Swift’s Plan to Re-Record Her Music Isn’t Actually Uncommon, W Magazine (Nov. 17, 2020), https://www.wmagazine.com/culture/taylor-swift-re-record-frank-sinatra ↩︎
  7. United States Copyright Office, Circular 56a: Copyright Registration Of Musical Compositions And Sound Recordings (Mar. 2021), https://www.copyright.gov/circs/circ56a.pdf ↩︎
  8. In sound recordings, the owner may only distribute the phonorecord by means of digital audio transmission. See 17 USC § 114(j)(5); “a ‘digital audio transmission’ is a digital transmission as defined in section 101, that embodies the transmission of a sound recording. This term does not include the transmission of any audiovisual work.” ↩︎
  9. 17 U.S.C. § 106. ↩︎
  10. U.S. Copyright Office, supra. ↩︎
  11. 17 U.S.C. § 106. ↩︎
  12. Jeanne C. Fromer & Christopher Jon Sprigman, Copyright Law: Cases And Materials 364 (2019).  ↩︎
  13. Fromer & Sprigman, supra at 364, 366. ↩︎
  14. Fromer & Sprigman, supra at 366. Also, this compulsory license is available “only after that composition has been fixed in a phonorecord created under the authority of the owner of the copyright in the musical composition, and copies of that authorized phonorecord have been distributed to the public.” ↩︎
  15. Fromer & Sprigman, supra.  ↩︎
  16. 17 U.S.C. § 115(a)(2). ↩︎
  17. 17 U.S.C. § 114(b) (brackets and emphasis added). ↩︎
  18. 17 U.S.C. § 114(b). ↩︎
  19. Elizabeth Vulaj, Singing a Different Tune: Taylor Swift & Other Artists’ Fight for Music Ownership, Practitioner Insights Commentaries (Aug. 28, 2020), 2020 PRINDBRF 0225.  ↩︎
  20. Donald Passman, All You Need To Know About The Music Business 81-82 (10th ed. 2019).  ↩︎
  21. Donald Passman, All You Need To Know About The Music Business 215, 225, 242 (10th ed. 2019). ↩︎
  22. Murray Stassen, At Least $5 Billion Was Spent on Music Rights Acquisitions In 2021. Could 2022 Be Even Bigger?, Music Business Worldwide (Jan. 10, 2022), https://www.musicbusinessworldwide.com/at-least-5-billion-was-spent-on-music-catalog-acquisitions-in-2021-could-2022-be-even-bigger/ ↩︎
  23. Stassen, supra. ↩︎
  24. Tim Ingham, The Important Detail of Bruce Springsteen’s $500M-Plus Catalog Sale To Sony Music Group, Music Business Worldwide (Dec. 17, 2021),  https://www.musicbusinessworldwide.com/the-important-detail-of-bruce-springsteens-500m-plus-catalog-sale-to-sony-music-group/, Tim Ingham, BMG Buys Mötley Crüe Recordings Catalog For Around $90 Million, Music Business Worldwide (Nov. 30, 2021), https://www.musicbusinessworldwide.com/bmg-buys-motley-crue-recordings-catalog-for-around-90-million/, Tim Ingham, Confirmed: Kobalt Sells Catalog To New KKR Venture, Chord, for $1.1. Billion, Music Business Worldwide (Oct. 19, 2021), https://www.musicbusinessworldwide.com/confirmed-kobalt-sells-catalog-to-new-kkr-venture-chord-for-1-1-billion/  ↩︎
  25. Inês Ferreira, A Comprehensive Guide To Music Investment Funds: Exploring The World of Music Royalty Investments, Song Sleuth (Jul. 31, 2023), https://www.songsleuth.io/culture/a-guide-to-music-investment-funds-exploring-the-world-of-music-royalty-investments ↩︎
  26. Hipgnosis, https://www.hipgnosissongs.com/song-investors/our-purpose-business-model/#:~:text=Our%20Business%20Model&text=Sustainable%20earnings%2C%20uncorrelated%20to%20global,%2C%20performance%2C%20licensing%20and%20merchandising (last visited Oct. 15, 2023). ↩︎
  27. Annie Zaleski, The Rhymes And Reasons Behind Re-Recording Your Own Classics, Npr (Apr. 12, 2021), https://www.npr.org/2021/04/12/986430235/the-rhymes-and-reasons-behind-re-recording-your-own-classics#:~:text=Artists%20decide%20to%20do%20re,and%20represents%20their%20work%20creatively. ↩︎
  28. Jason Lipshutz, Billboard Woman Of The Decade Taylor Swift: ‘I Do Want My Music To Live On’ Billboard (Dec. 11, 2019), https://www.billboard.com/music/pop/taylor-swift-cover-story-interview-billboard-women-in-music-2019-8545822/amp/?__twitter_impression=true ↩︎
  29. Lipshutz, supra. ↩︎
  30. Zaleski, supra. ↩︎
  31. Zaleski, supra. ↩︎
  32. Jeff Giles, How Frank Sinatra’s Thirst For Creative Freedom Led to Reprise Records, Ultimate Classic Rock & Culture (Feb. 13, 2016), https://ultimateclassicrock.com/reprise-records-history/ ↩︎
  33. Giles, supra. ↩︎
  34. Annie Zaleski, The Rhymes And Reasons Behind Re-Recording Your Own Classics, Npr (Apr. 12, 2021), https://www.npr.org/2021/04/12/986430235/the-rhymes-and-reasons-behind-re-recording-your-own-classics#:~:text=Artists%20decide%20to%20do%20re,and%20represents%20their%20work%20creatively. ↩︎
  35. Zaleski, supra.  ↩︎
  36. Zaleski, supra. ↩︎
  37. Zaleski, supra. ↩︎

Leave a comment

Blog at WordPress.com.

Up ↑