Rereleasing ‘Red’: On Taylor Swift’s latest album and music copyright

Cynthia Dahl, a professor at the University of Pennsylvania Carey School of Law and director of the Detkin Intellectual Property and Technology Legal Clinic, discusses music copyright and the Swift controversy.

Taylor Swift
Writer-director Taylor Swift attends a premiere for the short film “All Too Well” at AMC Lincoln Square 13 on Friday, Nov. 12, 2021, in New York. (Image: Evan Agostini/Invision/AP)

Taylor Swift rereleased and expanded her 2012 album “Red” earlier this month, delighting her fan base and setting social media alight with takes on new lyrics and scuttlebutt on the additional songs.

Swift has been rerecording her first six albums in an effort to gain ownership of her music catalog after her former label sold the original masters to music tycoon Scooter Braun. Now, iHeartRadio, the nation’s largest chain of radio stations, has said their stations will only play titles from the new “Red (Taylor’s Version)” album.

Why would a powerful artist like Swift not own her own music? Penn Today reached out to Cynthia Dahl, a professor at the University of Pennsylvania Carey School of Law and the director of the Detkin Intellectual Property and Technology Legal Clinic, to talk about music copyright and the Swift controversy.

Why did this happen to Taylor Swift? Why doesn’t she hold rights to her own music?

Music copyright licensing is a crazy world. There are two copyrights in music. The first is the rights to the composition, where somebody is the author of the words on the page and the musical score. Then you have a whole separate set of rights that are around the recording. Taylor is both a composer and a singer, so she theoretically could have two sets of rights. But especially when you are a young performance artist, a lot of those recording rights end up going to the recording studio, and that’s what happened here. The first recording of the song is called a master, and the recording house in Nashville that Taylor is at war with, called Big Machine, owned the masters to the first six Taylor Swift albums. They struck this deal when Taylor Swift was a new artist and a teenager. Taylor still owns the rights to the songs that she authored, but she does not own the rights to the sound recordings of the songs.

It’s important to note that it’s not unusual for artists to be in this position. Pretty much every recording artist is in this position. Maybe it’s a relic of the old role that recording companies used to play before there was digital distribution, and maybe it’s time for that to change.

So fast forward about 10 years. Over time, Taylor tried to get her rights to the masters back from Big Machine, but she never finished negotiating that deal. Now Big Machine sold all of those rights to Scooter Braun, who is sort of Taylor’s sworn enemy.

Why is Scooter Braun her sworn enemy?

Because Scooter Braun was the agent of Kanye West, and Kanye has been absolutely Taylor’s sworn enemy. There was the whole ‘Kanye-gate’ controversy, and Scooter Braun was passively involved in it. That’s why Taylor finds this sale especially objectionable.

How common is it for recording artists to own the masters of their music?

It has been the norm that the recording studio owns the rights to the recordings. It’s not just young artists who have this issue. The recording studio controls everything that happens with that recording. That’s the value that they have always had; they negotiate distribution, they set up album releases, they control all the different ways that the recordings are commercialized. Now with digital distribution, it’s a lot easier for an artist to record and control distribution, particularly if they’re well known.

I think the fascinating angle here is whether Taylor Swift is going to cause more artists to think hard about what they want to do when they record and whether or not they want to negotiate to control their masters because arguably the role of the recording company is shifting.

What does it mean for Swift now that there are two versions of these songs out in the world, hers and the ones that were sold?

Let’s take Spotify for example. Whenever somebody streams the old version, Scooter Braun gets some money, and Taylor also probably gets some money, but she doesn’t get all of it. Whenever anybody streams the new version, Braun doesn’t get anything. Anecdotally, I’ve read that her fans are blocking the old versions from showing up on Spotify so that they don’t mistakenly stream the old versions. They only get the new versions because they want to only support Taylor.

How does the re-released version of ‘Red’ benefit Swift?

The whole controversy has brought some attention to her, which is always a good thing if you’re Taylor Swift and you have new material to promote. But I think that she’s also using her power to bring attention and focus to this issue. Music copyright is really, really complicated, and this is only the tip of the iceberg, and one of the strange intricacies of music copyright. But I think that it’s causing people who have never thought about music copyright before to start thinking about whether the system that we’ve constructed is good for artists.

If folks decide that we really should change how music licensing works, how difficult would that be to make a reality, to unwind these entrenched ways of doing things?

Market forces may have to change some of this because we have actors here that have entrenched interests in the current system. Certain aspects to licensing have been taken up in the courts, where there’s been an interpretation of the law. For example, they’ve considered certain kinds of sound recordings and whether or not they’re covered or not under the current copyright law. So, some of it is playing out in the courts. There’s been discussion about whether or not we should legislate and change some of these realities in music copyright. So, it may play out in Congress as well, although I think Congress is a little distracted these days.

Why has this become such a big brouhaha?

Because Taylor Swift has a huge fan base and because I think people are attracted to a controversy. An artist that you love against a behemoth recording company. I mean, it was even called Big Machine. It’s a compelling story. She, unlike many, many, many musicians, does have power. She’s prolific, she’s enormously popular, and she has a very vocal fan base. And so I think it’s gotten attention simply because of the players and the juicy facts.

Who is the winner here? Is there one?

I’m often on the side of the artist, and I think the win is if we end up creating a system that works well for more people; then the whole system wins. I think that Taylor has found a solution that may or may not work for other artists, but at least she’s called attention to a system that may disadvantage certain artists, and, to the extent that the system can be changed, artists will end up ahead.