Ryan Adams, Taylor Swift, and covering music in the Digital Era

Unless you have been wholly avoiding entertainment news recently, you likely have heard about recording artist Ryan Adams newest album: a song for song cover of Taylor Swift’s “1989” record, in its entirety. Over the past few weeks, I have been asked by both clients and friends how this was legal, and if so, what the process entailed. Because this has been such a hot issue recently (and because this can potentially be very useful information for artists), I thought I would put together a quick summary of the legality behind this project.

The first question most people ask is: “How much did Swift get paid for this deal?” Unfortunately the answer isn’t crystal clear, as typically these agreements are confidential. We can, however, use well established statutory law to estimate. So let’s get to it!

What many people don’t know is that you actually do not need an artist’s permission to record their song legally. Go ahead and record that Milli Vanilli song you always wanted to record, you deserve it. Once a song has been recorded and distributed to the public on any format of recording (vinyl, digital, cd, etc.), any person or group is entitled to record and distribute the song without obtaining the copyright owner’s consent. All you have to do, essentially, is pay a fee, called a “Mechanical Royalty” and meet the standard copyright requirements. The current statutory mechanical royalty rate for physical recordings (such as CDs) and permanent digital downloads is 9.1¢ for recordings of a song 5 minutes or less, and 1.75¢ per minute or fraction thereof for those over 5 minutes. As long as this is paid AND the original copyright owner is put on notice BEFORE the recording, then the covering artist has done what is legally necessary.

It is important to note that there are two separate components of a musical work: the musical composition and the sound recording. The government website Copyright.gov explains that a musical composition consists of music, including any accompanying words. The author of a musical composition is generally the composer and the lyricist, if there are lyrics. A musical composition can be in the form of a notated copy (for example, sheet music); a phonorecord (for example, cassette tape, LP, or CD). A sound recording, on the other hand, results from the fixation of a series of musical, spoken, or other sounds. The author of a sound recording is the performer(s) whose performance is fixed, the record producer who processes the sounds and fixes them in the final recording, or both. Copyright in a sound recording is not the same as, or a substitute for, copyright in the underlying musical composition. A separate license must be obtained from the copyright owner of the sound recording before a musical work can be used.

Now that we get past the legal mumbo jumbo, how does that relate to the Swift/Adams situation we are speaking about? In short: Swift owns the actual songs as well as the master, while Adams is actually just licensing the songs from Swift (though he will outright own the recordings for HIS versions of the songs). So to get to the main point of this article, when we look at the track list for 1989, we see that all of the songs fall under 5 minutes in length (oh, how original). Because of that, the Mechanical Royalty rate, at 9.1 cents per song for 13 tracks would be a total of $1.813 per album that Swift’s team would get. So essentially Adams just needed to make Swift’s team aware he was going to create this album, and pay the minimum copyright MR rate.

Doesn’t seem like a crazy number, right? Well, put down your pitchforks T-Swift fans, she will be making significantly more money in Performance Royalties (which I may discuss in a future post), which include:

• plays on terrestrial and satellite radio (Sirius, KEXP, etc.)

• usages on network and cable TV, film, commercials, games, etc.

• plays on internet radio

• plays on online music streaming services (Spotify, Pandora, etc.)

• performances in live venues

 

So that about sums it up. Please be aware that my analysis involved the absolute basics of copyright law on the subject, and this article is in no way legal advice specific to a similar situation you may be in. It is also worth noting that many artists will negotiate much more complicated deals that the simple statutory requirements set above. If anything, I hope this shows you that if you are feeling creative, there are ways to make sure that music gets produced in fashion that adheres to current federal copyright law. Play on, folks.