Is Taylor Swift Rewriting the Rules of Intellectual Property for the Music Industry?

From the moment "Tay-Tay" first hit the country scene in 2006, it was clear that she was a force to be reckoned with.

After sticking with her first label for over 12 years, she left to pursue a different trajectory for her career.

But the aftermath of her bitter departure from Big Machine Records has not only rewritten the definition of musical girl power - Swift's every move is pushing new frontiers for artists and shifting the balance of power away from labels and toward musicians and songwriters.

Will Swift's bold strategy for regaining control of her artistic catalog have a lasting impact on the music industry, or is she a once-in-a-generation phenomenon?

And if the shakeup does last, what are the likely downstream effects for artists and the intellectual property law world?

The Backstory

If you know anyone who has or knows a teenage girl, listens to country or pop radio, and/or hasn't been living in a cultural cave for the past twenty years, you are probably at least dimly aware of Taylor Swift's story.

Starting with a simple country song paying homage to one of her favorite country singers as a fresh-faced teenager, she evolved to become one of the most polarizing figures in pop, and one of the most wealthiest, most powerful people in the music world.

By turns portraying the wide-eyed naif, the scorned woman, the adoring lover, and the calculating antagonist of her own story in her music, Swift's musical journey has offered her fans tantalizingly vulnerable glimpses into her life, mind, and heart.

These glimpses are paralleled by the real-life dramas, losses, conflicts, and triumphs that have made Taylor Swift a gossip-column perennial right alongside her clockwork Grammy nominations.

One of the biggest fights of her career, however, was that to control her own music. After leaving Big Machine Records, the company was sold to serial music entrepreneur Scooter Braun. Among the company's assets were the master tapes that became Taylor Swift's first six albums. Swift attempted to purchase the masters back from Braun, but he refused. Instead, he sold the Big Machine assets, including Swift's masters, off to Shamrock Holdings for a staggering $420 million.

Swift soon made an announcement that electrified her fan base of "Swifties" and made the music establishment shake in its boots: She would re-record the songs Braun sold off as "Taylor's Versions," restoring the albums in question to her complete control amid a newly inked deal with Universal Music Group. It was a bold and all-but-unheard-of gambit. Artists buying back the rights to their master tapes from record labels is such a commonplace move that it rarely generates much comment, except in outlier situations like Prince's very public and acrimonious break with longtime label Warner Records. But for an artist to say, "You know what? Keep the masters. I'll make my own, my way, and I'll own them outright, stripping you of any negotiating power you had with me" is nearly unprecedented.

The Matter of the Masters and Why the Masters Mattered

When it comes to music, there are a minimum of two different aspects of copyright that must be considered.

First is the actual song: the melody, lyrics, original arrangement, and other elements that work together to make up a specific piece by a given creator or creative team. These rights typically stay with the songwriter(s) unless they're sold off to a holding company or a record label. While this is not unusual, more and more artists are encouraging others to hold on to these rights and keep them as a bargaining chip or a sort of retirement plan. I talked about this back in November, when I wrote about the lawsuit by Daryl Hall against longtime collaborator John Oates; in the suit, Hall stated that he regretted having sold off his half of the rights to the legendary duo's song catalog.

The second part encompasses the rights to actual performances of the songs, including performances for studio recording. It is commonplace for record labels to secure this aspect of the copyright to songs during the negotiation and initial contract phase of their relationship with musicians, because those master recordings in themselves comprise an extremely valuable commodity with perennial earning potential. In many cases, the labels will also try to secure the rights to other recordings, such as footage and audio from live concerts by the artists.

These two primary elements of musical copyright can splinter into a number of different rights, which may be controlled by the artist, record label, songwriters, or other interests. Practically speaking, this means determining exactly who owns a specific set of rights to a given musical composition at any given time can be an absolute nightmare, as these rights may be bought and sold a number of times in quick succession.

Because the master tapes for an artist are such a valuable part of that artist's portfolio, Swift's decision to abandon them altogether and simply cut new ones stunned and delighted her fans. Music industry executives had a very different reaction. Whereas common industry practice had been to hold the masters for three years or as long as the artist was with a record label, whichever term was longer, contracts with master tape ownership terms of decades have quietly become typical. As one musical copyright attorney framed it, labels want to prevent other artists from following in Swift's footsteps by ensuring that by the time the rights to the master tapes expire, the performers' voices will have aged out of being able to replicate the songs on those masters faithfully enough to warrant being called "new"masters.

Ultimately, the gamble paid off handsomely for Swift. The runaway success of the "Taylor's Versions" in their various forms have given her a greater reach and more access to potential fans through airplay, streaming, media coverage, and fan word of mouth than ever before. Being extremely media-savvy, Swift's Eras Tour movie became a box office phenomenon that helped catapult her into the ranks of America's billionaires. It also cemented her as one of the most powerful and influential people in the music industry - a status that is certain to make the rainmakers, kingmakers, and arbiters of taste in the musical world extremely uneasy.

What Does This Mean for Musical Copyright?

In the post-Taylor's Version world, the balance of power appears to be shifting toward artists, many of whom are following Swift's example by advocating for themselves and greater control over their artistic output. It also means that the attorneys who advise these artists are going to be working harder than ever before to secure deals for their clients that don't sign away the lion's share of their rights for a shot at their fifteen minutes of fame.

Of course, the Old Guard of the music industry is going to be working very hard to ensure that they retain their power and control over artists, who still have very few options for achieving their dreams without playing ball with the music machine. They will probably continue to try to do this quietly, through a contractual clause here and a new guiding policy there, rather than risk further open revolt from major figures like Swift. From its very inception, the music industry has been a Darwinian, dog-eat-dog and devil-take-the-hindmost affair, plagued by scandal and backroom deals designed to keep power and money flowing steadily to the upper echelons. But with more artists following Taylor Swift's banner for artists' rights every day, the insiders and power brokers may find themselves with no alternatives but to lobby lawmakers at the state and federal levels to rewrite copyright law, and IP law generally, so it better suits their agenda - or to make their peace with the fact that, at least for now, the artists are ascendant.

With Taylor Swift riding front and center in the vanguard.

ABOUT JOHN RIZVI, ESQ.

John Rizvi is a Registered and Board Certified Patent Attorney, Adjunct Professor of Intellectual Property Law, best-selling author, and featured speaker on topics of interest to inventors and entrepreneurs (including TEDx).

His books include "Escaping the Gray" and "Think and Grow Rich for Inventors" and have won critical acclaim including an endorsement from Kevin Harrington, one of the original sharks on the hit TV show - Shark Tank, responsible for the successful launch of over 500 products resulting in more than $5 billion in sales worldwide. You can learn more about Professor Rizvi and his patent law practice at www.ThePatentProfessor.com

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