While many of us have found new (lockdown inspired) hobbies in the past two years, Taylor Swift has released no less than four studio albums. Somewhat unusually, rather than releasing new material, she is releasing new recordings of her old songs. When artists do this, the goal is usually to release an audibly different version of their previous work, rather than to compete with the original. That does not appear to be Swift’s goal here. Other than a new maturity in her voice and the odd “extended version”, Swift’s newly released songs sound largely the same. So, why bother? More importantly, why is this not an infringement of copyright?
Put simply, rerecording Swift’s music is a legal loophole allowing her to regain control over her work. The “Taylor’s Version” releases are the result of almost a decade of battles with industry forces over the production and distribution of her music. However, Swift’s strategy may not have been ‘quite so legal’ under New Zealand copyright law.
The role of copyright and contract law
Copyright is personal property. It subsists in any original musical or associated literary works (for example, lyrics). However, the fixation (or recording) of sound is protected by a separate copyright from the copyright that exists in the music and lyrics themselves. In New Zealand, this is called the “sound recording” copyright. In the recording industry, it is often referred to as ownership of the “master recordings”.
It may come as a surprise that most of our favourite musical artists don't own all of the rights to their work. A new artist who is lucky enough to be signed to a record label will frequently assign ownership of their sound recording copyright to their label. This means that, while the artist often retains ownership of copyright in their musical works (compositions) and literary works (lyrics), they do not own or control the resulting sound recordings (or “masters”) which the consumer ultimately hears. Even without such a contractual assignment by the artist, in New Zealand, the artist’s recording label may automatically own copyright in the sound recordings by virtue of s5(2)(b) Copyright Act 1994, by being the entity who has made the necessary arrangements for making that sound recording.
Where an artist’s record label pays for the production (and promotion) of a sound recording or an entire album, this payment is often referred to as an “advance”. The advance gives the artist a financial boost to begin their career, however, it comes with strings attached. The record label will usually own most, if not all, of the sound recording copyright (entitling it to royalties) while the artist is required to repay the advance from their own share of royalties. If a record is successful, the record label will ultimately be repaid its advance and yet usually still retain ownership of the sound recording copyright.
Artists don’t need to relinquish their sound recording copyright of course – they could instead meet the s5(2)(b) test themselves, by paying for the recording studio time and sound mixing necessary to produce their own record. However, studios and sound engineers do not come cheap, and the process can be highly technical. Few emerging artists will be in a financial position to produce their own records and therefore may not own their sound recording copyright.
