The Swift Study: Understanding the legal landscape to regain copyright over musical works in India

Introduction

Over the past few months, Taylor Swift has re-recorded and released a number of her old songs: a move that is unprecedented. Her latest release is a 10-minute version of the song 'All Too Well' which has broken the record as the longest track to reach the top spot on the Billboard chart.[i] Now the reason why Swift has been and will continue to re-record and release her old music is to regain ownership of her music. Like numerous other artists, Swift doesn’t own the masters to her older albums. These masters were initially owned by her old label Big Machine Records but were acquired by Scooter Braun in 2019 and sold to a private equity firm called Shamrock Capital for approximately $300 million.[ii] But if Swift doesn’t own her music, how is she able to re-record and release her songs? In a similar case in India, what rights do artists have to legally re-record their music and regain control over their songs? Before we get into the how’s and what’s: let us detangle the notoriously complicated music copyright landscape.

What is music copyright?

Music copyright is the legal ownership of exclusive rights such as distribution, reproduction, and licensing of a musical work. The first owner of any copyright is the creator of a work.[iii] However, a musical work such as a song is usually a combination of various underlying elements, which are in most cases protected under different copyrights created by different people.

Elements and Ownership of a Musical Work

• Lyrics – are the written words in a song and can be protected as a literary work by the writer (like when Swift said and the haters gonna hate, but baby I’m just gonna shake it off);

• The melody – is the musical notation of the song usually represented in the form of a graph and can be protected as a musical work by the composer of the melody;

• The song – is the version that we listen to either on the radio or on music streams, and is referred to and protected as the sound recording usually owned by the producer, or the music label.

How is Taylor Swift able to re-record and release her music?

Under American Copyright Law, the rights in a song can be broadly classified as publishing rights and master rights.[iv] These are generally understood concepts in the industry that form the basis of American music agreements and decide the amount of control an artist has over the music. Master rights mean the copyright over the final recording of the song – which is usually retained by the producers, or the music labels producing and marketing the song on behalf of the artist. Publishing rights (also referred to as composition rights) are the rights subsisting in the underlying compositions – such as the lyrics or the melody and are usually retained by the artists who create such works.

The music label which owns the master has the right to license the master recording to platforms such as radios, streaming platforms, or even movies depending on the agreement with the artist; while the artists continue having rights over the composition for royalties depending upon where the song has been used. Sometimes the music label and artist even share publishing and master rights. There is no set formula for these transactions and they are majorly governed by the industry practices and the agreement negotiated between the label and the artist.

Although Taylor Swift had signed off her rights on the masters to her songs, there were certain carve-outs in her agreement with the music label that let her record and regain ownership to her songs legally –

• Taylor Swift wrote the lyrics and composed the music to most of her songs which means she owned complete rights over her compositions;

• There was a “re-recording” restriction in her agreement with Big Machine which came to an end, giving her the right to re-record her music[v];

• According to news reports, there was also a prohibition clause in her agreement which meant she couldn’t make the new songs sound exactly similar to the old ones.[vi]

As long as Taylor continues respecting the clauses of her agreement, it looks like she may successfully and legally own the master recording rights to her re-recorded versions thereby exercising more right over her music. This doesn’t take away from Shamrock’s ownership of the old master recordings, and Shamrock will continue to benefit from it each time an older version is streamed or played (read more here).

The Indian Landscape

The landscape of the American music industry allows artists like Taylor to regain copyright ownership; but what is the take of India’s landscape in a similar scenario? Do Indian artists have the right to independently record old music in an attempt to exercise control over their copyright?

In India, the lyrics are protected as a literary work[vii]; the music as a musical work[viii]; the singer would get a copyright for performance[ix], and a ‘master’ is just equivalent to a sound recording[x]. The economic rights of the owners of any work are laid out in Section 14 of the Copyright Act, 1957. In particular, Section 14(e) enumerates the economic rights of the owner of a sound recording which includes the right to commercialize it by assigning or licensing such right for profit[xi], or even creating another sound recording embodying the original sound recording[xii]. This embodies the concept of ‘remakes’ in the Indian music industry, and as per Section 14 – only the owner of the sound recording vis a vis the producer or the music label can exercise these rights. If someone else, such as the singer, wishes to remake the original song, they would have to take permission from the owner.

Another possible way to own a sound recording is to create covers of songs. Covers are sound recordings of the original song sung by a different artist using the same composition but a slightly varied musical arrangement. Before the Copyright (Amendment) Act, 2012, cover versions of songs were considered as fair use of the copyright under Section 52(1)(j) (now repealed) of the Copyright Act, 1957 which required no permission from the owner of the copyright to create a cover. However, the 2012 Amendment replaced Section 52(1)(j) with Section 31-C which now requires statutory licensing in order to create a cover version (read more here). Today, cover versions can legally only be made 5 years after the release of the original song, and permission would have to be taken from the owner of such original sound recording.

What option does it leave for Indian artists & Concluding Remarks

Unlike the American music industry where the master rights and publishing rights are owned by two sets of people, the monopoly and the general practice in the Indian Bollywood and music industry means that the production house or the music label producing such songs have copyright over the sound recording as well as the underlying rights[xiii] (as works made for hire). If the artist wishes to re-record a song in India for any reason whatsoever, they would have to first obtain permission from the production house or the music label. The only carve out in India is for artists to write and create songs independently – where they exercise complete rights over the songs. However, this is accompanied by its own set of issues where the independent artists spend money from their own pocket producing the songs while assuming the risk of little or no return on their investment. The territory of regaining copyright over one's musical work is fairly unchartered territory in India. What is required today is a shift in the way artist rights are perceived and an attempt to have an equitable distribution of rights in agreements to enable artists to exercise some control over their work.

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References:

[i] Nikita Coetzee, Taylor Swift’s All Too Well 10-minute version breaks Billboard Record, News24, 23 Nov 2021 https://www.news24.com/channel/music/news/taylor-swifts-all-too-well-10-minute-version-breaks-billboard-record-20211123.

[ii] Drew Schwartz, Why Taylor Swift’s Plan to Re-record her old music is actually going to work, Vice, 7 Dec 2020 https://www.vice.com/en/article/k7a7ka/why-taylor-swift-re-recording-her-old-music-scooter-braun-explained.

[iii] Section 17, Copyright Act, 1957.

[iv] Anthony Pericolo, Bad Blood with Taylor Swift’s Album Re-recording, 20 Feb 2021, https://jolt.law.harvard.edu/digest/bad-blood-with-taylor-swifts-album-re-recording.

[v] Supra 2.;

[vi] Ibid.

[vii] Section 2(o), Copyright Act, 1957.

[viii] Section 2(p), Copyright Act, 1957.

[ix] Section (q), Copyright Act, 1957;

Section (qq), Copyright Act, 1957.

[x] Section 2(xx), Copyright Act, 1957.

[xi] Section 14(e)(ii), Copyright Act, 1957.

[xii] Section 14(e)(i), Copyright Act, 1957.

[xiii] Akshat Agarwal, Who Gets Paid for the Music you listen to? Revamping music and copyright in India (Part I), Spicy IP, 9 Dec 2020, https://spicyip.com/2020/12/who-gets-paid-for-music-revamp-music-copyright-india-part1.html.