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The Music Industry and Intellectual Property Law

For anyone tuned into the ever-evolving landscape of pop culture, it's likely you've encountered perplexing headlines related to renowned artists and their musical rights.


Consider, for instance, Taylor Swift's ongoing project of re-releasing her back catalog under the banner of "Taylor's Version." Or Ed Sheeran's numerous encounters with plagiarism allegations. And why was Katy Perry's hit song, "Dark Horse," accused of borrowing an eight-note riff from a lesser-known source?


These headlines provoke a fundamental question: What aspects of songs are eligible for copyright protection?


First, let's delve into the essentials of Intellectual Property law. Copyright safeguards original works, regardless of whether they are published or remain unpublished, in various forms of expression, encompassing literature, music, drama, art, and other intellectual creations. Authors receive copyright protection for a broad spectrum of works, such as computer programs, songs, scripts, and books. In the realm of music, numerous rights are linked to the original work. Lyrics fall under the category of literary works, while the musical composition or chords fall under the umbrella of musical works. Most often, the creators of music also hold performance rights over their creations. These rights are conferred upon the author or creator of the work.


Nevertheless, the music industry can introduce complexities to these concepts and entangle copyright law. Up-and-coming artists sign record deals with record companies (governed by contract law), and composers craft music commissioned by well-known artists, adding layers of intricacy.


Ed Sheeran's recent copyright case in a New York court revolved around allegations that he had plagiarized Marvin Gaye's song, "Let's Get It On," in his own composition, "Thinking Out Loud." The accusation centered on similarities in rhythm and a four-chord progression. Sheeran argued that many pop songs could overlap due to minimal differences, a point underscored by his legal counsel, who rightly asserted that copyright claims cannot extend to common musical elements that cannot be owned. The court demonstrated instances of other songs employing the same sequence, emphasizing that copyright claims should not be trivial. Copyright's purpose is to protect original work, not to unjustifiably restrict the creative expression of other authors and artists.


Katy Perry's case followed a similar trajectory, though she had to appeal the initial verdict to secure victory. The appeals court contended that the previous ruling stifled musical creativity. In Katy's case, the court also noted that the melody under scrutiny lacked distinctiveness and originality. It concluded that the melody consisted entirely of generic musical components and that the similarities did not arise from an innovative arrangement of these elements.


An essential point to remember when examining Taylor Swift's situation is that copyrights can be assigned to other parties, sold through contractual agreements, and more. Emerging musicians often require record deals to have a shot at success. At just 15 years old, Taylor Swift signed a 13-year record deal with Big Machine Records, granting the company rights over her master recordings, which represent the initial recording of a song. During her tenure with the label, she produced six highly successful albums.


In 2019, Big Machine Records changed hands, and with the sale came the transfer of Taylor Swift's first six album masters. Over the years, Taylor had openly expressed her desire to own her masters but was never afforded that opportunity.


In the ensuing months, Taylor lost her performance rights but retained copyright over her musical content. Ownership of masters grants control over when and where a song is played. To regain control of her earlier songs without purchasing the original master recordings, Taylor embarked on the arduous journey of re-recording her first six albums. It's important to note that she did not forfeit copyright attached to the lyrics and musical elements in her albums; thus, re-recording was well within her rights.


Numerous artists have emphasized the significance of owning their masters, yet it remains uncommon within the industry unless one wields considerable influence resulting from fame. The music industry continues to be a captivating arena in the realm of intellectual property law.



By Ira Garbers with edits generated by Chat GPT, September 11, 2023, Open AI

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