Taylor Swift was the first 15-year-old to be bold enough to enter the country music genre in the United States and considering how competitive the music landscape has been in the digital era, she took the world by quite a storm. Taylor quickly became an online sensation, with the largest teenage fanbase across the world enchanted by her knack of storytelling and her relatable everyday girl on the bleacher’s vibe.
Owing to her young age when she entered the music industry, people were skeptical whether she will be able to survive in a genre majorly dominated by middle-aged listeners, but Scott Borchetta, a record executive at Big Machine record label (BML) saw great potential in her and decided to sign her. While the terms and conditions of her contract with BML were not the most favorable, but it still gave Swift more agency with her creative decisions than other companies. The masters of her first six albums, which were recorded with BML, were owned by the record label and not by her. In 2018, Taylor signed with Universal Music Group’s Republic Record who allowed Taylor to own the master recordings of all her music going forward. While she has actively advocated for an artist to have ownership of the work they create and her want to own rights and ownership to her own music, her contract with BML was not favorable for the same.
Taylor’s battle with BML was a classic depiction of the music industry’s imbalance of power. While Taylor had often tried to negotiate a deal with BML to gain ownership to her music, but when Borchetta decided to sell BML to Scooter Braun it became clear to Taylor that she was never ever getting back those albums. In 2019, Braun acquired BML, which essentially meant that Braun now had ownership of all six albums of Taylor Swift. Taylor felt personally attacked because she felt that she and her work, were knowingly sold by her manager to a man without her consent. Post this Taylor decided to do the next thing better than revenge, she decided to re-record all her six albums to gain back artistic and financial control over her music, the re-recorded albums were characterized by the phrase ‘Taylor’s Version’.
‘Taylor’s Version’ has enabled her to draw national attention to the unequal power dynamics within the music industry. These dynamics are perpetuated through legal structures established by record labels and music publishers to maintain their dominance. Among these mechanisms, contracts play a particularly influential role as they effectively disconnect artists from their own work. It is important to understand the legality which surrounds musical works within the US legislative landscape and whether these re-recorded versions are legal and don’t constitute a copyright infringement.
Section 101 of the US Copyright Act 1976 defines a musical work as work consisting of music, including any accompanying words, which is capable of being perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Usually, the compositional copyright is owned by the songwriters, lyricists, and composers. As Taylor Swift has written and composed all her songs, she holds this compositional copyright in the original literary work and original musical work of her music, this allows her to re-record her music. Further, sound recording is defined as a work that results from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work. A master recording is the original recording of an artist’s original work, and qualifies as a ‘sound recording’, the copyright within this usually lies with the record labels as they coerce the artists which they sign to agree to such contractual terms. Section 114 defines the scope of exclusive rights for certain digital transmissions and performances of sound recordings, outlining the statutory licenses and conditions for such transmissions. Further, Section 114(b) specifies that the exclusive right of the copyright owner is limited to the right to prepare derivative works in which the actual sounds fixed in the sound recording are rearranged, remixed, or altered in sequence or quality. This allows for the creation of new versions or adaptations of the original sound recording while preserving the rights of the copyright owner. Section 106 specifies that the rights of a sound recording copyright owner are limited to the reproduction, distribution, and preparation of derivative works of the sound recording itself. Right of public performance under Section 106(4) grants the copyright owner of a musical owner the exclusive right to publicly perform the work. It’s important to note that the exclusive rights do not extend to creating another sound recording that solely consists of independently fixed sounds, even if they imitate or simulate the copyrighted recording. While the music label does actively hold all rights related to the musical work in perpetuity, they cannot restrict artists to make another sound recording which consist of independent fixed sounds, thereby rendering Taylor’s version to be well within the legal framework. Further, her contract with BML allowed her to re-record her songs of the first five albums after 2020. Various artists in the US like Metallica, Rihanna, Frank Ocean have fought such battles to gain ownership of their master rights from their labels. While, her old masters will not cease to exist and will still be available on the internet and with Braun, her re-recorded versions will also simultaneously subsist and she will have complete ownership over them.
If a similar instance had to occur in India, the rights which will be available to an artist are listed herein. Quite like US, in India, every song originally has two copyrights, one for the composition awarded to the composers/authors, also known as Publishing Rights or Songwriter Rights and another for the song as it is recorded awarded to the person/music group responsible for recording the same, also known as Recording Rights or Master Rights. Section 17 of the Copyright Act,1957 defines the author as the first owner of the work except when the author has created the work in his course of employment under a contract of service or apprenticeship. Usually, Indian artists are engaged in contracts with record labels who publish their music. The Performance rights which exist in US were earlier not available within the Indian legislative framework, but post the 2012 amendment, Section 38 of the Indian Copyright Act, recognized “Performer’s Rights” of the Singer of a commercially recorded song for 50 years from the “beginning of the calendar year next following the year in which the performance is made”. This means that once a singer has recorded an original song, for the next 50 years everyone except the producer would require consent and will have to pay royalty to play or perform their song in public.
One provisions which extends protection to original authors of works within the Indian copyright regime which doesn’t exist in US is Section 57 of the Indian Copyright Act. These rights are Moral Rights, these part from the understanding that an author is absolved with all his rights once he has assigned the same in favor of a publisher or other persons, rather it states that an author still has a right to claim moral rights within his work even after such assignment in order to claim authorship or claim damages in situations where the author’s work is distorted, mutilated or modified which negatively affect his honor or reputation. In 2020 the Delhi High court, in the case of Jatin Das v. Union of India upheld the moral rights of the artist and restrained the defendants, who had originally hired the plaintiff, from carrying out any further distortion to the artist’s iconic art installation.
Artists in India enter into contractual agreement with music labels in order to produce, distribute and promote their music. These agreements often involve transfer or licensing the artist’s copyright to the label. It is very essential for the artist to carry out extensive due diligence before entering into such a contractual obligation in order to protect their ownership and control of their work. The ability to re-record songs, quite like the case of Taylor Swift, depends on every artists specific contractual agreement and the terms agreed to therein. If the artists have retained their right to re-record or if they are allowed to regain ownership after a stipulated time period post termination of the contract, re-recording might be possible for these artists. While record labels often influence their power and coerce artists to sign away their rights via contracts of assignment of copyright, Moral Rights within the legislative framework of India shields the Artists from facing such exploitation, this protection is not available within the US.
In the case of Mannu Bhandari v. Kala Vikas Pictures Ltd the court held that, “Section 57 overrides the terms of the contract of assignment of copyright. Therefore, the contract of assignment must be consistent with section 57. The assignee of a copyright cannot claim any rights or immunities based on the contract which are inconsistent with the provisions of section 57.”
Thus, the moral rights provisions accord extended protection to the original authors/ creators of works within the Indian landscape, this helps in ensuring that their inherent right to their creation is not exploited owing to power imbalances due to lack of financial resources. It is essential that the artists still take caution and extensively carry out their due diligence between entering into contractual agreements in relation to the creations.
Contributor: Parinika Krishnan