This Is Why We Can’t Have Nice Things: The Legality behind Taylor Swift’s Rerecordings

By: Ally Kalishman

Ally Kalishman is a freshman in the College of Arts and Sciences studying Philosophy, Politics, and Economics

     As Taylor Swift’s enthusiastic fanbase received the release of her rerecorded “Red” album, a question has once again resurfaced among skeptics: why is she doing it? To an outsider, it seems futile for an artist to spend the extensive time and money recording music she has already released. However, the answer to this question involves more than Swift herself. Swift’s rerecording journey shows the struggles of artists to maintain creative license over their work in a world that sometimes tries to take advantage of them. ​

    In the music industry, recording labels serve as liaisons between an artist and the public. Essentially, these companies help affiliated artists manufacture, distribute, and promote their music while receiving a portion of the artist’s earnings in return [1]. So for musicians who are looking to become superstars, the extensive resources and capital behind a record label are nothing short of essential [2]. However, the artist must also give up their creative license over the music they produce, as signing with a label means transferring copyright ownership to those in charge. Thus, while signing with a label clearly has its benefits in terms of exposure, it minimizes an artist’s ability to control their music.

When Taylor Swift was just a teenager, she signed with Big Machine, a record label company that produced her first six albums. Signing with a label was nothing out of the ordinary for a young girl on the brink of stardom, yet it meant that she had to give up legal ownership over her music in exchange for promotion [3].

After almost 13 years with Big Machine, Swift decided not to renew her contract when it expired in November 2018 and instead signed with Universal Music Group (UMG). The split from the label was originally amicable, as Swift even publicly thanked Scott Borchetta, the head of Big Machine, for all of his support over the years. While she negotiated the copyright ownership of all future masters, or official recordings, Big Machine still had full control over her first six albums [4]. 

The controversy started when Borchetta decided to sell Big Machine to Scooter Braun in 2019, thereby transferring ownership of her masters to Ithaca Holdings (Braun’s company). While this is common in the music industry, Swift has a particularly contentious relationship with Braun, who she claims subjected her to “incessant, manipulative bullying” over the years [3]. Nevertheless, Braun refused to sell Swift her masters unless she complied with his demeaning and restrictive conditions, even allegedly offering to give her back one old album for every album she produces if she signs on with Big Machine again [3]. For artists like Swift who want artistic control over their music, this deal was the “worst-case scenario” [4]. 

Fortunately, shortly after the deal was finalized, Swift announced that she found a way to get her music back without negotiating legal ownership. Starting in November 2020, her old contract with Big Machine allowed her to start rerecording five of her six previous albums owned by Braun. Although this is a massive undertaking, especially for an artist of her caliber, rerecording will give her both creative and financial possession of her albums once again [5]. 

While this is exciting news for fans, this decision beckons an important question: is this technically legal? In short, the answer is yes. 

Essentially, there are two copyrights at play when an artist creates music: that of the song composition (music, lyrics, arrangement, etc.) and that of the recording itself. Since Swift writes her own songs, she legally owns the rights to everything about her music except the actual master recording, which is still in Braun’s hands. So, now that her statute of limitations for rerecording has expired, it is completely within her rights for her to remake the songs themselves [5].

But rerecording her old albums does not mean that her masters disappear. There will now be two versions of the same songs available to listeners, with the rerecordings acting as covers to the originals still owned by Braun. So when companies, movies, TV shows, etc… are looking to use Swift’s songs, which one do they license?

Since there are two copyrights at play for each song, a company needs to license both the song and the actual recording, which are usually controlled by the same person. In this case, if an entity wants to license one of Swift’s masters, they need both her and Braun’s approval. Yet, Swift would never consent to this because Braun would be the only one financially compensated from this deal, while she would get nothing. So, rerecording her albums legally gets around this issue, as companies can use her music (thereby promoting her songs) but she also gets properly reimbursed [5].

Additionally, Swift needs to be careful of Big Machine’s “original production clause,” which prohibits her from producing songs that sound exactly like the masters the label owns. Experts say that as long as she makes her rerecords at least slightly distinguishable from her original music, there should be no legal issue [6].

While copyright law has posed significant legal challenges for Swift on a very public stage, her journey highlights the struggle of artists everywhere who feel exploited by the industry. Her legal maneuvers to rise above restrictive copyright limitations shows that in the face of adversity, sometimes you just have to “shake it off.”
[1] Davis, Mamie, Jacob Wunderlich, Luke Evans, Rene Meredith, and Aaron Davis. "What Is a Record Label?" Exploration. Last modified July 6, 2018. https://exploration.io/what-is-a-record-label/.

[2] PQ, Rory. "Being an Independent Artist Vs. Signing to a Record Label." Icon Collective. Last modified July 29, 2019. Accessed November 4, 2021. https://iconcollective.edu/independent-artist-vs-signed-artist/.

[3] Brighouse, Elise. "Look What You Made Her Do: Why Is Taylor Swift Re-recording Her Albums?" Mancunian Matters. Last modified May 21, 2021. https://www.mancunianmatters.co.uk/entertainment/21052021-look-what-you-made-her-do-why-is-taylor-swift-re-recording-her-albums/.

[4] Spanos, Britanny. "Taylor Swift Vs. Scooter Braun and Scott Borchetta: What the Hell Happened?" Rolling Stone. https://www.rollingstone.com/music/music-news/taylor-swift-scooter-braun-scott-borchetta-explainer-853424/?sub_action=logged_in).

[5] Andrews, Travis M. "Can Taylor Swift Really Rerecord Her Entire Music Catalogue?" Washington Post. https://www.washingtonpost.com/arts-entertainment/2019/08/22/can-taylor-swift-really-rerecord-her-entire-music-catalogue/.

[6] Bowenbank, Starr. "QQ: Exactly How Can Taylor Swift Rerecord All Six of Her Old Albums?" Cosmopolitan. https://www.cosmopolitan.com/entertainment/music/a35491914/how-taylor-swift-will-rerecord-old-albums-explained/.


The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.