'Look what you made me do': On re-recording a Master and legally regaining your copyright (in India)
Copyright in Music When you listen to a song, what do you really focus on? Each person listens to a song differently than another. Some might be listening to it for the lyrics, some for the insane guitar riff or some might want to sing along with the vocal artist. While each individual's appreciation of one song might be different components of that song, it is finally the song as a whole which gets multiple streams or views or repeated playbacks. Similarly, while every listener appreciates a different part of a song, each artist who contributed to making this song also holds a special copyright over it. Under the Indian Copyright Act, 1957, the lyricist would hold a ‘Literary Work’ copyright, the musicians would hold a ‘Musical Work’ copyright, the singers would hold a ‘Performer’s right’ copyright and the person producing this song would hold the copyright over the song as a whole, which is commonly known as the Copyright over the ‘Sound Recording’ or the ‘Master Recording.’ It is replications of this master recording which we as listeners consume through CDs, Vinyls, Radio, and online streaming.
What happens more often than not in the Indian music industry, whether its film or non-film music, is that the producer or the record label holds the copyright over the sound recording or the master recording. This gives them almost complete power in the licensing of this song as a whole and allows them to receive all the revenue generated through the copies made of this sound recording for public use. But with this almost monopoly power producers hold over the monetization of the song, is there a possible devaluation of the rights of the artists, who contributed to making the song, over it? While a general trend in the Indian music business has been that the producer or the record label holds even the copyright over the underlying works of a sound/master recording instead of the artists themselves, there is still room for debate to understand whether these underlying artists, who signed away their rights to the producer, can reclaim these rights in any alternative way or re-create their contributions independently again. Let’s try to look into this from the perspective of the much debated legal battle between Taylor Swift and Big Machine Label Group, which was later acquired by Scooter Braun’s company.
Baby now we’ve got Bad Blood
Taylor Swift went public in 2019 claiming that she intended to ‘re-record’ her older album’s master recordings in the end of 2020. But why did this issue arise and can she legally do so under U.S Copyright Law? Taylor Swift departed from Big Machine Label to join Universal Music Group earlier in 2018. After Scooter Braun’s company acquired Big Machine, all the master recordings owned by Big Machine were in control of Scooter’s company, Ithaca Holdings. In August 2019, Taylor Swift announced that she would re-record the master recordings of the songs of her previous 6 albums, whose copyright was under the ownership of Big Machine Label. She was able to make such a claim because the concept of 're-recording of masters' exists within the American music industry. Prior to Swift’s battle, there have been instances where artists have tried to re-record the masters of their songs whose copyright exists with the record label. The re-recording restrictions were included as standard parts of the contracts after the Everly Brothers left their prior label, Cadence and signed a multi-million dollar deal with Warner Bros. to make a compilation of their hit songs, whose copyright remained with Cadence. Re-recording restrictions are usually for a period of three to five years minimum from either the date of delivery of the songs or the date of recording itself.
Now legally speaking, how can Taylor Swift re-record her older songs whose master copyright is owned by Big Machine Label or would this be considered an infringement of copyright of the original master recordings? There are three important points to understand this -
Firstly, Taylor Swift tends to write and compose most of her songs, either on her own or in collaboration with other writers and composers. Therefore, she owns the underlying composition rights/publishing rights and to re-record her older songs, she needs to take permission from her co-writers who may also hold the composition/publishing copyrights in her songs and stand to earn remuneration from the release of these new re-recorded versions of Swift’s older album masters.
Secondly, Swift’s contract with Big Machine Label containing the re-recording restrictions must expire by the time she intends to re-record. This has been confirmed by various news reports that by November 2020, Swift will be legally allowed to re-record her older songs.
And lastly, for Swift to be able successfully re-record her masters, while she intends to re-record them exactly the way she sung them earlier, it is important to ensure that the contract allows for note-to-note recreation as certain re-recording restrictions clauses allow for re-recording after expiry of the term in such a way where there is a whole different arrangement of the songs.
But based on interviews and reports, Swift’s contract with Big Machine doesn’t allow her to make ‘copycat versions’ of the original masters so it will be interesting to see how her new versions of the older songs sound. Furthermore,owning the masters to the new recorded versions of her older songs will give Swift more power in deciding possible Sync opportunities and to retain maximum control over the licensing and performance of her music as future projects would approach Swift instead of Big Machine for the same. However, this doesn’t mean that the older songs will cease to exist. Big Machine will continue to hold the copyright in Swift’s previous album’s masters and whenever such music is streamed or consumed, they will continue to generate revenue out of it.
The Indian Music Landscape
Keeping in mind this alternative option available to artists in the American music industry, is such an alternative route to reclaim copyright over your works available to the artists in the Indian music arena? We understand that a master recording copyright is nothing but the copyright over a ‘sound recording’ under the Indian Copyright Act, 1957. Therefore, to understand whether the law permits re-recording of this sound recording, we have to understand what the rights the copyright over a sound recording entails. Section 14 of the 1957 Act specifies the economic rights enjoyed by the copyright holders. ‘Economic Rights’ are nothing but the exclusive rights which the law allows the owner of the copyright to exploit for commercial gain derived out of their work. Re-recording of the master recordings essentially involves replicating a majority portion of the original song with some modifications or it can be a note-to-note copy. Section 14(e) of the 1957 Act, which provides the exclusive rights available to the copyright owner of a ‘sound recording’, empowers the holder to also make another sound recording embodying the original sound recording. What this translates into is when Producers, who generally hold the copyright over a sound recording, make ‘remakes’ of a song which might have been made exclusively for the cinematograph film or which was made independently and then acquired. Let’s look into these two situations separately to understand it better -
In the instance a song has been written, composed and sung specifically for a cinematograph film and the artists engaged in these elements have been paid a remuneration for their contribution to creating the sound recording, it is usually seen that these underlying artists assign all their economic rights to the producer. This results in the Producer not only owning the copyright in the Sound recording but also allows him to hold the copyright in the underlying literary and musical works. This gives the producer almost absolute power in deciding to make a remake of the original sound recording using the same underlying works but allowing for changes in the musical arrangement or anything else. In such instances, if the underlying artists such as the composer and lyricist intend on re-recording the master sound recording in a similar manner with the same/different singer, it is impossible to do so without the consent of the producer who holds all the copyrights.
In the instance, a sound recording has been made independently by an artist who has not only made the underlying composition and lyrics but has also produced the sound recording, then such artist will hold the rights to the ‘master’ or ’sound recording’ and also the ‘underlying rights’ within the song, empowering him complete freedom to create a new version of the sound recording. But if a producer of a cinematograph film wants to create a new version of this independent song within his film and approaches the independent artist permission to do the same which is then allowed, then the producer tends to own the copyright in the master recording or the sound recording of the new version of the original song. This creates two separate rights in the masters, the original one remaining with the independent artist and the new version’s with the producer. For example, the popular punjabi song ‘Lamberghini’ is written, composed and sung by the famous duo ‘Doorbeen’ and was produced by an indie label - Speed Records. This song was then remade for the movie‘Jai Mummy Di’ and the mega label T-series holds the copyright over this new version incorporated in the film. So in such a scenario, Speed Records and Doorbeen hold an independent copyright in the Master recording and underlying works of the Song Lamberghini and can re-record the same or make remixes of it independently. Similarly, T-series can also do the same, but only of the version of the song they hold the copyright over.
Finding an escape route? Is there one?
As we’ve seen, there is no statutory or legal recognition of ‘re-recording’ of masters under the Indian Copyright Act, 1957. The alternative options, which are legally recognised under the India law, to re-recording of masters are Cover Versions and Recreated versions or ‘remakes’. A ‘Cover Version’, is wherein the master recording song is performed and recorded once again using the same underlying composition but with a different singer and at times a slightly different music arrangement. The1957 Act has now allowed for a Statutory License to be given to the artist desirous of making a cover version but such a cover version can be made 5 years after publication of the original song. A ‘remake’ is when portions of the original song have been used to make a new song, which when heard, reminds the listener of the older song as well. This ‘remake’ holds separate copyrights of its own in its entirety and its underlying works. A remake can be made by the producer by exploiting his rights underSection 14(e)(i), which allows him to create another sound recording embodying the original sound recording for which he holds the copyright. This remake also leads to exploitation of the economic rights provided to the copyright holder of the underlying works since it involves use of the musical composition and the lyrics which have separate copyrights as ‘literary and musical’ works under Section 14 of the 1957 Act. But even these alternatives involve permissions of the copyright holder of the sound recording in case the underlying artists have assigned all their rights to the producer. This becomes a rather difficult route in regaining the copyright in your work if you’ve signed it away.
In such a scenario, what can an artist do before signing with a label to prevent such a future fallout? Let’s take cue once again fromTaylor Swift’s deal with Universal Music Group, wherein she retains the copyright over the master recordings of her songs and allows UMG to gain control in terms of the licensing, distribution and promotion of the songs. However, this is an alternative available only to those artists with a certain amount of clout like Swift herself. In the Indian music landscape, with production house giants such as T-Series or Saregama, it becomes difficult for artists who write or compose their own songs to enter into such negotiations with the labels. Furthermore, in the instance a song is being created for a movie, the chances of the composers or lyricists retaining their economic rights with respect to their contributions to the creation of the sound recording are very slim. Herein comes the benefit many indie artists have who not only gain complete creative control over the work they create but also have the power to retain control of their IP over their sound recordings. The route of re-recording of masters is still an unchartered territory within the Indian music landscape and further open, inclusive discussions are required between the players before ruling it out as a possible route for underlying artists to reclaim their rights over their works.
This post was written by contributing writer, Diksha Arora. Diksha is a final year law student in Bangalore, India moving to Los Angeles soon to pursue her masters in Music and Entertainment Law at the UCLA Law School. She's an absolute music nerd, very passionate about artist rights and holds a keen interest in everything related to movies, music, and entertainment.