‘I knew you were trouble’

Musician Taylor Swift will release her album “Red” on Friday – for the second time. The reason: The rights to the sound recording of the first version do not belong to her. An exceptional case under copyright law shows Pauline Dietrich.

US singer and eleven-time Grammy winner Taylor Swift will release “Red (Taylor’s Version)” on Friday, November 12th, nine years after “Red” was first released. While the album titles are just almost identical, the songs are exactly the same – Swift simply re-recorded the album from scratch. The songs now exist twice, for example the hit “I knew you were trouble” and “I knew you were trouble (Taylor’s version)”. She has already done the same with the album “Fearless” and is planning further albums, which she released on the label “Big Machine Records”, to which she was signed from her first successes in 2006 to 2018.

The background to it all is a dispute over the rights to these songs. Taylor writes her lyrics and the compositions herself in most cases and sings them. She is thus the author or at least a co-author and performing artist. She is entitled to the rights to the recorded composition and the text. However, she has no rights to the so-called master, i.e. the “original” sound recording.

“The rights to the sound recording are usually transferred to a sound carrier manufacturer by means of a tape transfer agreement. This term has grown historically because physical sound carriers were previously produced. Today, in the digital age, these companies are called record companies or ‘labels'”, says Stephan Mathé, attorney from der Law firm Poppe in Pinneberg. According to the specialist lawyer for copyright and media law, a label then usually only takes on the rework, i.e. the task of marketing a sound recording, for example in the form of a download album, promoting it, etc. Profit sharing.

Master sold to the “wrong person”

That’s what happened with Swift. This is nothing special considering the fact that she only just started her career in 2006 with the signing of a contract and was dependent on a label. The crux of the case, however, is the sale of the label to the music manager Scooter Braun, who also acquired the sound recordings of their albums. From a legal point of view, that too is initially nothing sensational. However, like so much in the music industry these days, it’s gotten special simply because it’s about Taylor Swift.

Because it didn’t fit that she wasn’t asked before the sale, nor to whom the label was sold. Swift says that Braun has “bullied” her in the past. He worked with rapper Kanye West, with whom Swift had a very tense relationship – at least since West called the singer “Bitch” in his song “Famous” and claimed that it had been agreed .

Swift announced her displeasure that the sound recordings of her sometimes record-breaking albums are now being sent to one of West’s alleged allies in this matter. Her exceptionally loyal and passionate fan base stands behind her. In the meantime, Braun has resold the rights – again for a horrific sum. In media reports there is talk of 300 to 400 million US dollars. Swift had no knowledge of this and probably no offer to buy the rights himself.

Copyright: “Less a matter of the law than of the contract”

Under German – and also under US – law, Swift has no reason to believe that she has been treated unlawfully. “Since the label makes a corresponding investment in the artist, it is contractually reserved the possibility of passing on the rights of use to the sound recording or the contractual relationship as a whole to a third party. If that is the case, the artist can do little if the later The buyer doesn’t like it, “says Mathé, who represents numerous national and international music publishers, labels and singer-songwriters.

Rather, something like that has to be explicitly stated in the contract if it is important to you. So it is “less a matter of the law than of the contract.” In order to prevent the masters from getting hold of Braun, according to the music copyright lawyer, Swift should have had a say or a right of first refusal to the masters of the respective albums. According to reports, this did not happen here.

Sound recordings economically devalued

But Swift is not deterred and solves the problem with her legal omission in this matter simply differently: She re-records her albums so that there are ultimately two recordings of them – and thanks to her new contract with the label “Republic Records”, which belongs to Universal Music Group owns it, it also has the rights to it.

Swift assumes – and most likely rightly – that the users of her songs will increasingly seek permission from her in the future for use, for example for advertising and films. It is even more likely that their die-hard fan base will not save any costs and simply buy the albums again to support Swift, even though most of the songs on them should actually already have in their collection. As a little goodie for additional purchase incentives, Swift is adding new songs to Taylor’s versions that didn’t make it onto the first versions of the albums.

Her plan: With this approach, she devalues ​​the “old” sound recordings economically – and significantly.

To a certain extent, it also circumvents the purpose of the phonogram manufacturer right to protect the economic investments in a recording. This is made possible by a clause in her contract with her first label Big Machine Records, according to which she is not allowed to re-record the songs that are the subject of the contract until November 2020 – and thus until two years after the contract has expired. The deadline has now passed. According to Mathé, such a clause is “legally comprehensible in principle”.

“Old camels” are actually no longer easy to sell

“Since the label has to protect its economic investment, the contract will always allow sufficient time for the exclusive marketing of the sound recordings. It would counteract the entire purpose of the contract if an artist first records a song for label A and a short time later the same song for Label B, “says the music copyright holder. It is often the case that the “old camels” can no longer be sold as a new recording many years later. “There are often bands and artists who re-record their big hits as ‘Best of’ a few years later, just like there are remixes and live recordings. That is not unusual. But that songs are re-recorded almost identically many years later In fact, I’ve never heard that before, “says Mathé, referring to Swift’s particular case.

A loyal and affluent fan base is what makes Swift’s clever legal move possible in the first place, because after all, she has to be able to sell the rights to the newly recorded Taylor’s versions. There should therefore be few imitators, since for most of them it simply does not make economic sense due to a lack of fan support.

However, Swift has already campaigned in the past to ensure that the work of all musical artists is sufficiently financially rewarded. It is due to them that Spotify and Apple Music have to give more money to the artists. The winners of their efforts to completely exhaust their rights should ultimately be the fans anyway – who doesn’t look forward to hearing their favorite song for the second time in their lives on Friday?