Taylor's Version: A Case Study in Intellectual Property Rights for Musicians

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Taylor's Version: A Case Study in Intellectual Property Rights

for Musicians

Felicia Irene Christabelle Suryanto

, Yovita Amanda

, Angelica Brigitta

1,2,3

Universitas Pelita Harapan, Indonesia

feliciairene015@gmail.com

Abstract

The central issue of this thesis revolves around the separation of ownership between

music compositions and master recordings. Traditionally, record labels held rights

to master recordings, while composers retained ownership of their compositions.

This division has led to tensions, with artists often feeling exploited by labels. The

case of Taylor Swift and Big Machine Records has brought the issue of IP rights in

music to the forefront of public attention. In 2019, Swift publicly criticized Big

Machine Records for refusing to allow her to perform songs from her first six albums

at the American Music Awards. This was allegedly due to a contractual clause that

prevented her from performing the songs unless Big Machine Records received

specific approvals.Which caused Taylor Swift to re-recorded her first six studio

albums, which were originally released under the Big Machine Records label. The

case of Taylor Swift and Big Machine Records is significant for several reasons. First,

it highlights the significant power imbalance that can exist between artists and

record labels. Second, it sparks a conversation about the need for greater

transparency and fairness in the music industry, particularly in terms of IP rights.

Third, it provides an opportunity to examine the implications of the separation of

ownership between music compositions and master recordings in Indonesia. This

thesis aims to analyze the legal framework surrounding the separation of ownership

between music compositions and master recordings in Indonesia and specifically

examine the implications of Taylor Swift's case with Big Machine Records within the

context of Indonesian law.

Keywords: re-recording; copyright law; composition ownership; master recording

ownership

A. Introduction

The creative industry has become a serious concern in several countries in the

last few decades. This is because creative industries can create jobs and prosperity

for the people of a country. However, in the development of the creative industry,

protection of intellectual property rights (IPR) is also important, including copyright

protection for musical works and songs. In Indonesia, the legal protection for

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ownership of a song and composition is regulated in Law number 28 of 2014

concerning Copyright.

Intellectual property rights (IPR) are rights attached to an intellectual work, be

it copyrighted work, patents, brands, industrial designs, trade secrets, etc. IPR has

an important role in encouraging economic growth and creating jobs. In the

Indonesian context, IPR has an important role in the development of creative

industries. The creative industry is an industry based on creativity and innovation.

The creative industry in Indonesia has grown rapidly in recent years, and is

expected to continue to grow in the future. One of the important creative industry

subsectors is the music industry. The music industry in Indonesia has great

potential, but also faces various challenges, one of which is the issue of IPR.

In music, copyright is an exclusive right granted by law to music creators to

perform, reproduce and distribute their musical works. These rights include musical

compositions, which involve melody, harmony, and lyrics, as well as master

recordings, which are sound recordings of the musical composition. The separation

of composition and master recording copyrights is a common practice in the music

industry, where record labels typically have the resources and infrastructure to

produce and distribute master recordings. Both are different intellectual works, with

the musical composition being abstract and the master recording being concrete.

right to control the use, reproduction, and distribution of his or her musical

composition. The rights holder to the master recording has similar rights regarding

the sound recording.

However, this separation of ownership can be problematic for musicians,

especially if they do not own the rights to the master recordings of their songs. Such

musicians may be restricted by the rights holder to the master recording in terms of

the use of their songs. This can cause problems for musicians, especially in terms of

the use of their songs, musicians who do not own the rights to master recordings of

their songs may be restricted by the master recording rights holder in terms of the

Hawin, M., & Riswandi, B. A. (2020). Isu-Isu Penting Hak Kekayaan Intelektual di Indonesia. UGM PRESS.

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use of their songs. For example, the musician cannot sing the songs in public

without permission from the rights holder to the master recording. Musicians who

do not own the rights to the master recordings of their songs will lose out on

potential income from the use of those songs. For example, the holder of rights to a

master recording can sell or rent the master recording to another party, and the

musician will not get royalties from the sale or rental.

B. Research Methods

This research will use a normative legal approach by detailing the analysis of

laws, especially regarding the separation of copyright for the composition and the

master recording. The data that will be used in this article are academic journals, and

case studies related to Taylor Swift and Big Machine Records as follow:

1. Analysis of Copyright Law in Indonesia

First, this research will carry out an in-depth analysis of Law Number 19 of

2002 concerning Copyright in Indonesia. The focus will involve provisions

relating to music copyright, especially in the context of the separation of

ownership between musical compositions and master recordings.

2. Academic Journal Review

This research will also refer to a literature review from academic journals

that discusses copyright issues in the music industry, including the

separation of ownership between musical compositions and master

recordings. This literature will provide the context and theoretical

framework necessary to understand the issues that arise in the Taylor Swift

case.

3. Case Study of Taylor Swift and Big Machine Records

Case studies will be the main approach in exploring the practical

implications of copyright issues in the Indonesian context. An in-depth

analysis of the contract between Taylor Swift and Big Machine Records will

be conducted to identify provisions related to separation of ownership and

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how they do or do not comply with Indonesian copyright law.

C. Analysis and Discussion

C.1. Concept of copyright and the legal basis

In Indonesia, the copyright framework is established by Law No. 28 of

2014, which grants exclusive rights to creators or recipients of the copyright.

This exclusivity empowers them to control the display or reproduction of their

work and to grant permission for its use, all within the bounds set by the

various creative works such as scientific books, literary compositions, and

works of art. These creations, falling within the copyright system, are

considered immaterial property, reflecting the intangible nature of the rights

involved. Immaterial property rights, which include copyrights, hold a

hierarchical position within the legal system, acknowledging the importance of

protecting the intellectual contributions of creators. Notably, this system

recognizes both tangible and intangible forms of expression, encapsulating

ideas and imaginative concepts that have been translated into tangible works.

The copyright law also incorporates restrictions and limitations, ensuring a

balance between the exclusive rights of creators and the broader public

interest.

Moreover as defined by WIPO, the copyright system economically grants

authors control over copying, distribution, adaptation, and public performance

of their works. This incentivizes creation and innovation, fostering a vibrant

cultural and economic landscape. UUHC 2014 recognizes both moral and

economic rights, allowing creators to claim authorship and control commercial

exploitation. Importantly, copyright is not perpetual, lasting for the author's

Nugroho, B. S. F., & Utama, M. A. R. (2020). Legal Protection of Copyright in the Globalization Era: A

Comparison of Indonesia and China.Journal of Law and Legal Reform,1(4), 671-680.

https://doi.org/10.15294/jllr.v1i4.39424

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lifespan and 70 years thereafter, ensuring a balance between creator benefit and

public access.

both individual creativity and national progress. Firstly, it empowers creators.

By granting exclusive rights to their works, copyright provides authors, artists,

and musicians with the security and control needed to invest their time and

talent into their craft. This economic incentive fuels the creation of diverse

and valuable cultural expressions, enriching the lives of all Indonesians.

Secondly, copyright contributes to national development. By incentivizing

innovation and protecting intellectual property, it attracts foreign investment

and fosters a knowledge-based economy. This translates into job creation,

economic growth, and a more competitive Indonesia on the global stage.

Additionally, copyright facilitates the dissemination of knowledge and

educational materials, promoting a more informed and empowered citizenry.

In conclusion, copyright is not just a legal framework; it's a cornerstone of

Indonesia's cultural and economic well-being. It empowers creators,

encourages innovation, and fuels national development, making it an essential

tool for building a vibrant and prosperous future for all Indonesians.

C.2. Concept of Composition

The concept of composition is the combination or blending of different

elements to form a unified and harmonious whole. This concept can be applied

in various fields, including music, art, design, and law. In the field of music,

composition is the process of creating a musical piece consisting of elements

such as melody, harmony, rhythm, and dynamics. Music composition can be

done individually or together by several people.

In the field of art, composition is the arrangement of art elements such as

line, shape, color, and texture in a work of art. Art composition can aim to

create beauty, convey a message, or express emotion. In design, composition is

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the arrangement of design elements such as color, shape, and text in a design

work. Design composition can aim to create order, attract attention, or convey a

message. In the field of law, composition is the resolution of a dispute through

an agreement between the two parties. Legal composition can be voluntary or

enforced by the court. Based on expert opinion, the concept of composition can

be defined as follows:

a. According to Suprapto Sumardjo, composition is the arrangement or

combination of elements that are bound in a whole and harmonious

unity.

b. According to M. A. Roestam Koesnoe, composition is the arrangement of

elements contained in a work of art so as to create a certain impression.

c. According to S. K. Triguna, composition is the arrangement of design

elements that are interconnected and work together in a unified and

harmonious whole.

Based on the law, the concept of composition can be defined as follows:

a. According to Article 184 of the Civil Code, composition is a peace made

by the parties to a dispute before a judge.

b. According to Article 60 of Law No. 30/1999 on Arbitration and

Alternative Dispute Resolution, composition is an agreement between

the parties to a dispute to settle their dispute out of court.

From these expert opinions and laws, it can be concluded that the concept of

composition is a process or result of the combination or mixing of different

elements to form a unified and harmonious whole. This concept can be

applied in various fields, including music, art, design, and law.

C.3. Concept of Master Records

Master records is a term commonly used in data management to refer to a

set of data that is considered the primary or authoritative source for a

particular entity. This entity can be a customer, product, financial transaction,

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or any other information that is important in a system or organization.

Based on expert opinion, the concept of master records can be defined as

follows:

a. According to David K. Wiley, master records are data used as a

reference for business processes.

b. According to Thomas H. Davenport, master records are data used to

support decision making.

c. According to David T. Mauldin, master records are data used to

support business operations.

Based on the law, the concept of master records can be defined as follows:

a. Article 1 point 10 of Government Regulation Number 82 of 2012

concerning the Implementation of Electronic Systems and

Transactions, master records are basic data used to run electronic

systems and transactions.

b. Article 1 point 11 of the Financial and Development Supervisory

Agency Regulation Number 13 of 2017 concerning Regional Financial

Information Systems, master records are basic data used to support

regional financial information systems.

From these expert opinions and laws, it can be concluded that the concept of

master records is data that is important and fundamental in an information

system. This data is used as a reference for conducting transactions or other

processes in the system.

C.4. Separation of Copyrights for Composition and Master Recording

Song copyright is the exclusive right of the creator or person who creates

the music or work.

Song copyright includes two important aspects that are

often poorly understood by many people: copyright for the composition and

Pentingnya Hak Cipta Musik bagi Musisi, Begini Cara Mendaftarkannya. (n.d.). Kemenparekraf/Baparekraf

RI.

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cell phone, we may intuitively assume that the copyright to the song belongs

solely to the singer or artist being heard. However, this is not entirely true

because a song consists of two different parts, each of which has its own

Music composition is the basis of a song, including the arrangement of

notes, chords and melody. The basic framework is what determines the

structure and unique identity of a song. The copyright for the composition is

usually owned by the lyricist, songwriter and composer. They are individuals

who arrange musical notes and lyrics, thereby creating a harmonious series

that pleases the listener. In some cases, music publishers are also involved in

this process, having rights to reproduction and distribution of the composition.

On the other hand, master recording refers to the actual realization of a

composition in recorded form. It involves unique interpretations of

compositions, including vocal styles and specific musical arrangements created

by the artist or band. The copyright to a master recording is usually held by the

record label or recording artist. This aspect focuses more on how the song

“comes to life” in the recording, including production quality, instrument

arrangements, and distinctive vocal nuances.

Sometimes, the songwriter and recording artist can be the same person, as

is the case with bands who write and record their own music. However, in the

context of copyright, they are treated separately, namely one as the creator of

the composition and the other as the creator of the master recording. It is

important to ensure that both aspects of copyright are respected and managed

well, especially in terms of licensing and royalties.

C.5. Taylor Swift v. Big Machine Record

In late 2019, the celebrated American singer-songwriter Taylor Swift

Desk, S. (2023, December 7). 6 Basics For Music Copyright Law: What It Protects. Vakilsearch | Blog.

https://vakilsearch-com.translate.goog/blog/6-basics-for-music-copyright-law-what-it-protects/?

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found herself entangled in a heated dispute with her former record label, Big

Machine Records, its founder Scott Borchetta, and the label's new proprietor

Scooter Braun. The bone of contention was the ownership rights to the master

recordings of her initial six studio albums. This conflict garnered substantial

media attention, prompting Swift to take a bold step by re-recording and

releasing her albums—Fearless (Taylor's Version), Red (Taylor's Version),

Speak Now (Taylor's Version), and 1989 (Taylor's Version)—between 2021 and

2024, with the aim of securing complete control over her musical catalog.

The roots of this dispute trace back to November 2018, when Swift, after

the expiration of her contract with Big Machine, inked a record deal with

Republic Records.

Media reports in June 2019 disclosed that Braun acquired

Big Machine from Borchetta for a staggering $330 million, financed by various

private equity firms. This acquisition bestowed upon Braun ownership of all

the master recordings, music videos, and artwork copyrighted by Big Machine,

including those belonging to Swift's first six studio albums. Swift contended

that she had attempted to buy back her masters, but Big Machine had

presented unfavorable terms. The conflict escalated, with Swift and Big

Machine embroiled in a series of disputes. Swift claimed that the label impeded

her from using her music for the 2019 American Music Awards and her

documentary Miss Americana (2020). Meanwhile, Big Machine released an

unreleased work by Swift, Live from Clear Channel Stripped 2008 (2020),

without her consent. Swift, determined to regain control, announced her

intention to re-record the six albums and assume ownership of the new

masters. In October 2020, Braun sold the original masters to Shamrock

Holdings, the Disney family's investment firm, for $405 million, with a

stipulation allowing him to continue profiting from the masters. Swift,

dissatisfied with this development, rejected Shamrock's offer for an equity

partnership and successfully released the re-recorded albums through

In 2005, Swift inked a contract that committed her to releasing six studio albums under Big Machine.

Consequently, after the conclusion of promotional efforts for her sixth studio album, Reputation (2017), the

contract formally concluded in November 2018.

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Republic, achieving critical acclaim and commercial success while setting new

records in sales, streaming, and chart performance. Swift's stand garnered

support from various quarters, including musicians, journalists, politicians, and

scholars, sparking discussions on artists' rights, intellectual property, private

equity, and ethical considerations within the music industry. Her decision to

re-record was hailed as an influential move, encouraging emerging artists to

negotiate for greater ownership of their music. iHeartRadio, the largest radio

network in the United States, pledged to replace the older versions of Swift's

songs with her re-recorded tracks in its airplay. Billboard recognized Swift as

the Greatest Pop Star of 2021, applauding the remarkable and unprecedented

success of her re-recording venture. Braun, in hindsight, expressed regret over

acquiring Swift's masters and ultimately divested his entire holding company,

Ithaca, to Hybe Corporation.

C.6. Protection of composition and master recording rights under Indonesian IPR

The Indonesian Copyright Law, Law No. 28 of 2014, recognizes the

distinct nature of a song's two key components: the composition (the melody,

lyrics, and harmony) and the master recording (the specific performance

captured on a medium). This separation is crucial, as each element possesses its

own unique creative contribution and deserves individual protection.

public attitudes to respect a person's rights to the creations they produce and

stimulate the activities of creators to continue creating and be more creative. To

protect creative works created by their creators, Indonesia has its own

that intellectual works, especially music or songs, receive legal certainty.

Protection of rights to musical compositions and master recordings in

Indonesia is regulated based on Intellectual Property Law (IPR). The law that is

Perlindungan Hak Cipta Atas Karya Musik Terkait Kesamaan Melodi dalam Dua Komposisi Musik

Berbeda. (2018). https://repositori.usu.ac.id/handle/123456789/4474.

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relevant to this is Law no. 28 of 2014 concerning Copyright.

their work. The development of IPR law, including copyright, develops along

with advances in technology, highlighting the importance of strengthening IPR

protection so that the rights of creators are protected appropriately and

optimally. For music specifically, copyright protects the composition, which

includes the melody, lyrics, and musical arrangement. This allows creators to

have control over the use, reproduction, and distribution of their work.

Master recording rights in Indonesia are also protected under the legal

framework of Intellectual Property Rights (HKI), although they are not

specifically regulated in Law no. 28 of 2014 concerning Copyright. This

protection usually falls under the category of related rights, which grants

exclusive rights to producers of phonograms (sound recordings) and

performers. These rights include control over the reproduction, distribution,

and commercial utilization of the recording.

The benefits of separating rights in the music industry are multifaceted.

Firstly, it ensures fairness and provides incentives for creative contributors.

This approach allows composers to receive royalties for their original ideas,

and producers are duly rewarded for their investments and artistic decisions

during the recording process. This mutual compensation system incentivizes

both parties to invest their time and talent in creating high-quality music.

Additionally, the separation of rights fosters flexibility and innovation within

the industry. It permits diverse interpretations and expressions as composers

can license their work to different artists and producers, resulting in unique

versions of the same song. Producers, in turn, can experiment with various

arrangements and production techniques, catering to a broad range of

audiences. Moreover, the specificity of this separation protects individual

artistic choices. The composer's copyright safeguards the core musical

Undang-Undang Republik Indonesia Nomor 28 Tahun 2014 Tentang Hak Cipta.

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composition, while the master recording copyright protects the specific

performance captured on the recording, encompassing unique arrangements,

instrumentation, and vocal nuances.

However, there are challenges and considerations associated with this

separation. The determination of ownership and the fair division of royalties

can be intricate, particularly when multiple artists, producers, and songwriters

are involved in a project. Clear and comprehensive contracts and agreements

become crucial to prevent disputes. Another challenge is unauthorized use,

particularly in the digital age, where tracking and enforcing copyright

infringements can be challenging for both the composition and the recording.

Both are susceptible to unauthorized copying and distribution, necessitating

robust enforcement measures. Additionally, navigating the complexities of

derivative works and adaptations poses a challenge. Determining whether a

new version of a song constitutes a derivative work of the composition or a

separate master recording requires clear legal guidelines to address these

ambiguous areas in the industry.

C.7. Will Swift’s action to re-record the songs under Indonesian law be deemed

legal?

Under Indonesian law, Swift's action to re-record her songs would be

subject to the country's Intellectual Property Law, specifically Law no. 28 of

2014 concerning Copyright. The Indonesian legal framework recognizes the

importance of protecting the rights of creators, including those in the music

industry, and provides copyright protection for both musical compositions

and master recordings. In the context of U.S. copyright law where the case

occurs, a distinction is made between the copyright to the song or musical

composition and the copyright to the specific recording of that song (master

recording). Similarly, Indonesian Copyright Law acknowledges the dual

nature of copyright, encompassing protection for the composition (lyrics,

melodies, sheet music, and instrumental arrangements) and the master

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recording.

Swift's ownership of the copyright to the compositions (publishing rights)

would be protected under Indonesian Copyright Law. As the songwriter, she

would retain control over the use, reproduction, and distribution of the musical

materials, including lyrics and melodies. This aligns with the broader goal of

intellectual property laws, which is to encourage creativity by providing legal

certainty and protecting the rights of creators. Regarding master recording

rights, Indonesia protects such rights under the legal framework of Intellectual

Property Rights (HKI), even though they are not specifically regulated in Law

category of related rights, granting exclusive rights to producers of

phonograms (sound recordings) and performers. These rights include control

over reproduction, distribution, and commercial utilization of the recording.

Given that Swift's re-recording involves creating new masters, she would likely

need to obtain the necessary copyright licenses from the original master owner.

In the absence of a clear legal provision regarding re-recordings in

Indonesian Copyright Law, the applicability of Swift's actions would depend

on contractual agreements and licensing arrangements she has with the

original master owner or label. Taylor Swift's ability to re-record her songs

stems from several legal and contractual factors. While she may not own the

master recordings of her earlier albums, she retains the copyright to the

compositions, including lyrics and melodies, due to her role as the primary

songwriter. The re-recording clause in her artist-label agreement with Big

Machine Records allows her, as a songwriter, to re-record her songs after a

specified period. This contractual provision, combined with the expiration of

her contract with Big Machine in November 2018, provided Swift the

opportunity to explore new agreements. Moreover, the Copyright Act permits

artists to create "independent fixations" or new recordings of their original

compositions, ensuring they are not direct copies of the original masters. To

distinguish her re-recordings from the originals, Swift adds "(Taylor's Version)"

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to the titles. This strategic move not only clarifies the new recordings' origin

but also helps navigate potential trademark issues. In essence, a combination of

contractual agreements, the expiration of her initial contract, and legal

provisions empowers Taylor Swift to re-record her songs, allowing her to

regain control over her music and create new master recordings.

In summary, Swift's action to re-record her songs would likely be deemed

legal in Indonesia, given the country's robust copyright protection framework.

However, the specifics of legality would depend on contractual agreements,

licensing terms, and any related rights granted to the original master owner,

aligning with the principles of intellectual property protection in the country.

C.8. Should the law be reformed regarding this issue to clear any

misinterpretation?

Analyzing Taylor Swift's situation prompts a consideration of potential

legal reforms in Indonesia to address similar issues. Swift's ability to re-

record her songs hinged on a combination of contractual provisions,

and misinterpretation, Indonesia may benefit from more explicit regulations

regarding artists' rights in the context of master recordings. Establishing clearer

guidelines on re-recording clauses, copyright ownership, and related rights for

master recordings under Intellectual Property Rights (HKI) would provide a

comprehensive legal framework. This clarity would benefit both artists and

record labels, preventing protracted disputes and fostering a fair and

transparent environment. Additionally, as technology continues to shape the

music industry, periodic reviews and updates to copyright laws would ensure

they remain relevant and effective in protecting the rights of creators.

Implementing reforms with input from industry stakeholders and legal experts

can contribute to a more robust legal infrastructure, reducing the likelihood of

contentious situations similar to Taylor Swift's arising in Indonesia.

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D. Conclusion

In conclusion, the central issue of this thesis revolves around the separation of

ownership between music compositions and master recordings, with a focus on

Taylor Swift's case against Big Machine Records. This dispute highlights the

significant power imbalance between artists and record labels, sparking

conversations about transparency and fairness in the music industry, particularly in

terms of intellectual property (IP) rights. The thesis aims to analyze the legal

framework surrounding this separation of ownership in Indonesia, specifically

exploring the implications of Taylor Swift's case within the context of Indonesian

law.

both musical compositions and master recordings under the broader umbrella of

Intellectual Property Rights (HKI). This separation of ownership, similar to U.S.

their works. The benefits of this separation include fairness, incentives for creative

contributors, flexibility, and innovation within the music industry. However,

challenges such as determining ownership, fair royalty distribution, unauthorized

use, and handling derivative works require clear legal guidelines. Analyzing Taylor

Swift's re-recording actions under Indonesian law suggests that her actions would

likely be deemed legal, given the existing legal framework. Swift's ownership of the

rights. The legality would depend on contractual agreements and licensing terms

with the original master owner or label.

Swift's ability to re-record is facilitated by contractual provisions, copyright

law, and her artist-label agreement. Considering the complexities of the issue, the

question arises whether legal reforms are needed to avoid misinterpretations and

provide clarity.

The recommendation is that Indonesia could benefit from more explicit

regulations addressing artists' rights, re-recording clauses, and related rights for

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master recordings. Clear guidelines would prevent ambiguity, minimize disputes,

and create a fair and transparent environment for both artists and record labels.

Periodic reviews and updates to copyright laws, with input from industry

stakeholders and legal experts, are essential to ensure the laws remain relevant and

effective in the dynamic landscape of the music industry. Implementing such

reforms would contribute to a robust legal infrastructure and reduce the likelihood

of contentious situations similar to Taylor Swift's arising in Indonesia.

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