With rerecordings, Taylor Swift wages a war for artist’s moral rights
“If you don’t own your masters, your masters own you.”
From painting ‘Slave’ on his face during performances, jabbing at his record label with remarks such as the above, to threatening rerecording- Prince truly did it all. Ahead of the curve as always, he saw the potential in owning his musical catalogue before his contemporaries. The ‘masters’ Prince references are the original recordings of a track as the final product. It is the sum of the song writing, the production, and the recording, all rolled into one. Industry practices govern that when a new and upcoming artist is signed with a record label, their masters are owned by the label. The artists short on bargaining power, agree to it, only to find themselves cornered in a rather poor predicament as they grow and achieve success. Well, why is owning the masters so important?
To understand this one only needs to go back a few months, for every December as the Christmas spirit kicks in so does Mariah Carey’s 26 year old classic “All I Want for Christmas”. Sitting atop the music charts globally for several months, every year. Carey, owning the masters to all her work, earns substantially more than she would, had she not held ownership. Furthermore, owning masters to her song allows her to make various derivative works, such as remixes or merchandise, alongside the ability to licence her work to media producers in exchange for royalties. This is crucial, as Disney shelled out millions of dollars for the usage of Led Zeppelin’s four-decade-old “Immigrant Song” in “Thor Ragnarok” The band’s direct ownership of their masters allows them to cash in on all royalties, rather than the label gaining the benefit. These examples demonstrate the economic leverage owning the masters to even a single hit holds for artists. Ownership guarantees massive profits from the use, purchase, and streams of songs for artists well past their prime, much like real estate, lucrative music catalogues never go out of style.
History bears witness to many bitter fiscal wars over high-profile catalogues. From Paul McCartney and Michael Jackson fracturing their friendship over the ownership of the Beatle’s catalogue, a battle that McCartney is still fighting, to Kanye West’s recent Twitter meltdowns spiting Universal Music Group regarding their ownership of his masters. Multiple of these have found their way into pop culture. But it is safe to say that Taylor Swift’s clash with Big Machine Records over the sale of her masters will be looked upon as the fiercest. Unlike other artists, who threatened their labels with lawsuits and breach of contracts, Swift is doing what no one else before her successfully managed to pull off: she is rerecording. This move has been widely dissected and is considered to be monetarily motivated by industry insiders.
But this assessment fails to consider many relevant factors. Firstly, it is not unreasonable to conclude that Swift’s fans are at their lowest capacity to consume due to her releasing two full-length albums back-to-back last year. With plans to drop more music with rerecordings this year, it is worth considering that all her new album roll-outs will take place during a time marked by a financially unforgiving pandemic. Secondly, Swift has no previous artist to look up to as an example to guide her in selecting a successful rerecording rollout strategy, she is navigating uncharted marketing terrain. Thirdly, if Swift’s assertions in interviews and the rerecording of Love Story (Taylor’s version) are anything to go by, she is gearing to rerecord her new versions as close to the originals, which makes the process extremely expensive and time-consuming. And lastly, with rerecording her catalogue, Swift is riding on the belief that the movies and the TV shows will ask the rights to her versions over the originals, that the algorithm of streaming services such as Spotify and Apple will showcase a preference for the new versions over the originals and that her fans will forgo the nostalgic 2008 Love Story for the 2021 version. And although the streaming numbers for Love Story did solidify her hope in the latter point, she otherwise has the odds stacked against her. Financial success is far from a surety. But Swift, a veteran of the industry who has time and time again showcased her business savvy, may it be by pulling her music from streaming services for fairer terms of service or using unfriendly ticket scalper tactics to secure the highest-grossing US tours several times, understands the risks more than the average artist. Despite this, she is still choosing to rerecord.
This goes beyond an act to regain economic control over her work. Swift is doing something far bigger than that. She is actively pushing for wider legal recognition of the moral rights of artists. Broadly speaking, copyright provides artists with two sets of rights; economic rights and moral rights. The former gives the creator of a literary original work a medium to exclude others from using their work and in turn generate financial gain from their pieces. Moral rights, on the other hand, find their roots in the sacrosanct connection between an author and her creation, protecting this bond from forces that could detract from the artist’s relationship with their work. This extends to when it leaves the artist’s ownership, allowing them to control the eventual fate of their work. Moral rights widely include 2 major rights; the right of Attribution, meaning the right to be credited as the author of a work, and the right to Integrity which is the right to control modifications to and destruction of a work.
Problematically, these rights are offered little legal protection, are riddled with formalities, and have a narrower interpretation under common law jurisdictions. In the UK, moral rights apply to a creator if they were alive on or after 1989, this showcases their novelty in comparison to long-established economic rights. To successfully use the Attribution Right, the creator has to first assert this right either on the work itself or in a contract, failure of which results in missing the opportunity to be identified as the creator. Moreover, the road to invoking the Right to Integrity places the burden of proof in regards to the new treatment of their work as ‘derogatory’ and the extent of the artist’s reputation on the artist.
All these formalities present hurdles in asserting moral rights. However, even though the protection may be flimsy; the law recognises an inseparable bond between artists and their work. This is evidenced by the fact that it is not possible to assign or sell your moral rights. Most moral rights last the same length as the Copyright- in jurisdictions like Europe even existing perpetually- to ensure that the creator’s name and reputation are remembered in the way they would have wanted.
This is the line of thought Swift displayed in her response to Apple’s Songwriter of the Year interview when asked about having her masters sold from under her:
“I am trying to make record labels understand from a psychological perspective, what you do to an artist when you separate them from their work- you break something.”
Going on to explain the importance of music catalogues, “it’s a pension plan, their retirement, and legacy, what they leave to their children.”
This shows us the current position of moral rights; although the law acknowledges the bond between a creator and their art under intellectual property law, it does not afford it adequate protection.
Whilst market analysts run their mouths dry arguing against change in the name of free-market economics, ethical issues in the system have never been more glaringly obvious. Is it too radical to demand wider recognition of moral rights and lobby for appropriate protections? Why should artists not be given the Right to First Refusal or at the very least Right of First Offer or the Right of First Negotiation when it comes to the sale of their work? All of the musicians named in this article are financially capable of buying back their masters. A case of display of power, oppression, or just free market, one can never quite tell. But instead of questioning or cheering Swift on her bold move to rerecord, we need to question the unsympathetic industry and lacklustre legal protection that allowed another prolific songwriter to have their lifelong work stolen from them…again.
