Last week I joined a forum as part of the All About Music conference in Mumbai – https://www.allaboutmusic.in/ It was really nice to meet a bunch of new contacts, and to discuss a number of really interesting developments in the Indian music industry – and be introduced to some fantastic new music at the same time.
I was asked what I thought about Taylor Swift re-recording her songs in order to gain control of the master rights in those recordings. This isn’t the first time this has happened, but it is interesting, and it’s got me thinking about how the various rights in music operate.
Here’s a summary of what I shared with the group thoughts, as it makes a very practical thought piece on how music operates, and who stands to benefit from changes in the component parts of music.
I may be going over old ground for some readers, but I find it’s helpful to remind ourselves of the fundamentals in order to really understand what’s going on in situations like this.
If you think about the rights involved in a recording, it’s always made up of three elements: (1) the song (composition or ‘musical work’ in legal terminology), (2) the performance of the song (ie someone coming along and performing the song or its elements in the studio or wherever to make the recording, and (3) the recording of elements (1) and (2).
When performing artists sign a ‘record deal’ they may or may not control element (1) – they might write the songs, or they might perform songs written by someone else. They will control element (2). They won’t control element (3). This is because the label is paying the performing artist in return for controlling the rights in the recording, such that the label can sell/market the recording commercially, and share the profits between itself as label and the recording artists.
So in Taylor’s case she happens to be performing her own songs as a recording artist, but the original master rights belonged to her label Big Machine, which Scooter Braun ended up acquiring. There’s nothing to stop the owner of element (3) from selling those master rights, even when they contain very personal performances as per element (2). Under the terms of a standard recording agreement, Taylor’s deal paid her to allow the recording company to exploit the recordings of her performances.
But she was recording her own compositions; her own songs that she had written herself. This is where the separation of rights in elements (1), (2) and (3) becomes really important. Because element (1) is a separate right from (2) and (3), her songs/compositions/musical works are a totally separate entity from the performances of those songs/works as recorded for Big Machine. She was singing and performing her own songs/compositions (element 1) on those recordings. The recorded performances remain with Big Machine/Scooter, but the ‘songs’ (ie the compositions) remain with Taylor.
In re-recording her own songs (element 1), Taylor is creating new performances (element 2) of her songs (element 1). She is her own recording entity, thereby creating new recording rights (element 3) which she also controls.
So that’s the legal and rights analysis bit. What does this mean in reality?
Taylor’s Big Machine recordings have had huge success. They are the versions of the ‘songs’ that everyone knows. These are the versions which radio stations have on their playout systems. They’re the versions which are clocking huge numbers on Spotify, Apple Music, Deezer, and all other international DSPs. They’re the versions which will be played in clubs and bars, shops, etc. So what does this mean for the new re-recorded versions?
Her new re-recordings will compete directly with the Big Machine recordings. This may sound confusing, but it means there will two sets of recordings of Taylors songs and recorded performances in circulation from the point at which she releases her new recorded versions of previously performed (element 2) and recorded (element 3) songs (element 1).
The different recorded version of Taylor’s songs, as performed by Taylor, will go in different paths over time.
On DSPs like Spotify and Deezer, the original recordings will remain as they are. Same with YouTube. They’ll remain on playlists and people’s collections. The recording rights (3) and Taylor’s own performances on those recordings (2) remain with Big Machine/Scooter Braun. All play counts, playlist features, chart positions etc will remain as they are. Taylor has no ability to takedown or interfere in any way with these versions, because those rights are controlled by her original recording agreement with Big Machine.
The original versions will enjoy their current position as the versions most listeners or users of music will continue to listen to. Radio stations play music which ‘tests’ well with their target audience. In other words they need to ensure their listeners keep listening. This is to keep listening audiences at a reliably high number, so those audiences can be sold to advertisers (or to prove the relevance of any given national/state or otherwise supported non-commercial radio or TV station).
What about venues like gyms, clubs, bars, shops and other places which pay for a licence to use (recorded) music? Music is not at the core of what they do. Music is one of a number of contextual elements they need to get right in order to make their business work. The importance of music selection is usually made by what is popular elsewhere, rather than being tastemakers themselves.
So if the original recordings will continue to be established in most mainstream commercial contexts, what’s the point in going to all the trouble, cost and hassle of re-recording the same songs? Is Taylor competing with herself? What’s the point in doing this?
From the point of view of rights, Taylor re-recording her own songs for herself is no different to someone else recording versions of the same songs – a bit like cover versions. The kicker is that if she owns the rights in the songs (element 1) plus the recorded performances and the recordings themselves, she doubles up on all potential revenues from usage of the new recordings.
The new recordings will to some extent be competing with the existing ones. It’s likely that users of music like radio stations won’t replace the existing recordings with the new ones just because new ones exist. But her fans may do. This is powerful, as it may constitute a very large active user base of listeners moving from versions where the rights are split to versions where Taylor owns or controls all the rights. In the on-demand world this could bring about a significant shift in which recordings get active usage. This plays to Taylor’s advantage, while also potentially diminishing the value of the original recordings.
There may be other reasons for doing this. Other bands have re-recorded their back catalogues in order too gain a sense of personal ownership of their songs and performances, removing the record company from the equation. How successful this has been in commercial terms is less clear in these other examples (eg Def Leppard). The original versions were very successful and very firmly established in the user base (fans and radio, DSPs etc). This makes it very hard for new versions to be real competition.
The passage of time plays another role too: if you re-record your songs many years after the original recording, the sound will be very different. People’s voices especially change a lot over years. The human voice is the ultimate organic instrument – not only does it physically change over time, but our ears are ultra sensitive to hearing human voices. This makes it highly likely that a re-recording will simply sound ‘different’ to the version people are already used to. Studio sounds can be replicated, but instrumental playing styles are very hard to mimic exactly as they were done in the original sessions, nuances and interactions do come through in recordings. This is part of the magic that makes a great recording. Can this be emulated just because the artists want to replace the original version with their own new one?
Not too much time has passed between the original recordings and re-records, so perhaps this won’t be such an issue. It is also likely that her dedicated fanbase may very well chose to move across from the older versions to the new ones. They are likely to listen to her story, and be willing to move over to choosing the new versions on their music services, and swap out the old for new on playlists. Perhaps over time the new versions will become the de facto versions that other users will need to use, simply because they evolve to be the versions most people are used to? It is clear that all music usage is becoming more atomised. Social media usage is about clips rather than long form. This will remain the case for a long time to come. Who is likely to be using social media with Taylor’s songs? Her fans. They will likely be a large group of users who will also likely be the users who will move over to using ther new versions. Fans will feel good about using the music Taylor has endorsed. Taylor will have full control, not to mention access to all revenue streams her full rights ownership will create for her.
From a similar commercial point of view, owning all rights in any song and recording gives you complete control over any and all exploitation of that recording. The pace of change in the international music industry is very quick indeed, and seems to get quicker all the time. No one knows what will replace the things we take for granted now – which only a few years ago seemed unlikely to catch on. By controlling all rights in her recordings, Taylor and her team will be best placed to move with agility with industry change to place rights and licences wherever they choose. This is a very smart move commercially, as it will allow for far greater flexibility as to how the recordings and works are used in any way. I think that this commercial flexibility combines with the personal ownership aspect to result in this being a very smart move indeed.
So that’s my view. What are your thoughts on this? Smart business? Sensitive artist? Ruthless commercial exploitation of fans? Over to you for your impressions on this case, and what it may mean for the future. Please feel free to email me on charlie …at… ptrstrategic.com, and we can continue the conversation. I look forward to hearing from you!