Re-Recording as an Alternative to Statutory Copyright Reversion
04 December 2024
A new journal article by NZCIP co-director Dr Joshua Yuvaraj investigates whether re-recording can help artists reclaim power from record companies.
Photo by Eva Rinaldi, republished under a CC-BY-SA 2.0 license and available at Wikimedia Commons.
Pop superstar Taylor Swift has made headlines in the last couple of years for deciding to re-record her albums after falling out with music executive Scooter Braun, who had bought the rights to her original master recordings.
The re-recordings have been wildly successful. But is re-recording the way to get around one-sided contracts musicians, particularly those at the start of their careers, often have to sign with record labels to get into the industry? NZCIP co-director Dr Joshua Yuvaraj investigates this phenomenon in a new article published by the Journal of Intellectual Property Law & Practice (Oxford University Press).
The paper finds re-recording is permitted under copyright laws in New Zealand, the UK, Australia, Canada and the US. In those jurisdictions, as elsewhere, there are two copyrights for songs: copyright in the actual songs, and copyright in the recordings of those songs. Artists can re-record their songs without infringing copyright in the recordings, unless they took actual audio from those original recordings without authorisation.
However re-recording can be a tricky pathway for a number of reasons. First, competing with original recordings might mean re-recordings aren’t as successful, particularly if a fanbase is loyal to the original sound.
Second, artists need to make sure they either own the musical copyright or get a license to reproduce those songs; re-recordings are likely to be quite similar to the originals, so doing so without authorisation opens them up to infringement claims (i.e. the music publishing companies they assigned the musical copyrights to initially).
Third, record contracts typically have ‘stand-down’ periods before which artists can’t re-record. This allows the record company time to exclusively benefit from the recordings. While these have been typically up to seven years, which was more manageable, Swift’s success appears to have led the big record companies to try and extend those terms to 20 or even 30 years.
The paper suggests such moves could be treated as unfair contract terms, either under the common law or under dedicated unfair contract terms provisions in legislation like the Fair Trading Act 1986. There is very limited case law on the point, though, so we would have to wait for a challenge to a re-recording restraint to come before the courts.
The paper concludes that re-recording has potential to help artists, particularly when compared to the other main avenue in copyright law, statutory ‘reversion’ – giving artists their rights back by exercising statutory mechanisms rather than relying on their contracts. But the uncertainties around musical copyright ownership and the re-recording terms means the waters remain uncertain for artists wanting to follow Swift.
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Article details: Joshua Yuvaraj, “‘It’s Me, Hi, I’m the Problem, It’s Me’: Re-recording as an alternative to statutory copyright reversion’ (2024) Journal of Intellectual Property Law & Practice https://doi.org/10.1093/jiplp/jpae091