Where artists begin to chafe under this arrangement is that the money paid back to the record company is paid back at the artist’s royalty rate, not what the record company actually earns on the songs. Occasionally, artists do recapture their masters, 4 but this is far from the norm and beyond the scope of this post. Sort of like paying off the mortgage and the bank still owns your house.
And even when the artist pays back all the money, the record company still keeps the copyrights in the sound recordings. So if the artist makes two poor selling albums, but one hit album, “the hits pay for the misses” and nothing will be paid on the hit album until such time as the two flops are paid off. This is true for all copyrighted material that is delivered during the course of the contract. The artist will receive no royalties on the sale or streams of the sound recordings until such time that all of this money is paid back. The payment by the record company is called an “advance” because this sum must be paid back to the record company. This is where the “why” begins to take center stage. The dual language is required because there is considerable doubt in the legal community that sound recordings can be works made for hire, since the artist is not an “employee” of the record company (the contract will say this explicitly) and under the copyright law, independent contractor works made for hire, by definition, do not include sound recordings. The recording agreement will provide that the sound recordings created by the artist belong to the record company either by “work made for hire,” or by copyright assignment. This is because they pay to the recording artist a sum of money, called an “advance,” out of which the artist uses to finance the recording.
However, the “masters” or sound recordings are always owned by the record company. Oftentimes this music publishing company is one affiliated with the record company. When an artist signs a recording contract, there will be two types of copyrightable material generated as a result of the contract: the songs and the sound recordings, the latter sometimes referred to as “masters.” If the artist generates their own songs, as Taylor Swift does (though sometimes with collaborators), the copyright in the songs can either be retained by the composer(s) or assigned to a music publishing company. The how includes a mixture of copyright law and the law of contracts. Many articles written about the subject have focused on why Taylor Swift is “shaking off” her old record company. On September 17, 2021, Bloomberg News reported that Taylor Swift had released a re-recorded version of the 2014 hit “Wildest Dreams.” 1 She has been doing this to her old recordings since 2020, 2 and all indications point towards her continuing to do so. Re-Recording Your Old Songs: How Taylor Swift is “Shaking Off” Her Old Record Company
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