INSIGHT
Newsletter - Rerecording: Case Study of Taylor Swift’s Master Recordings through the Perspective of Indonesia’s Copyright Law
Back in 2005, pop-singer, Taylor Swift, signed a record deal with Big Machine Records (“Big Machine”) which resulted with Big Machine owning the rights to the master recordings to Swift’s first six studio albums, known as the master rights, and Swift owning the rights to the musical composition and the lyrics, known as the publishing rights. Nearing the expiration of their contract in November 2018, Swift decided not to renew the contract with Big Machine and intended to buy back her master recordings. However, Big Machine said that Swift can only have her master recordings back if she renewed her contract, which Swift is unwilling to do. Following the event, in 2019, Big Machine sold her sound recordings to Scooter Braun’s Ithaca Holdings, an investment holdings company, who then proceeded to sell the master recordings to Shamrock Holdings in 2020.
As response to the selling of her master recordings, Swift decided to rerecord her first six albums and release it. Swift is able to do this because she owns the publishing rights and due to the expiry of the rerecording restriction clause within her contract with Big Machine in November 2020. A rerecording restriction exists to prohibit artists from rerecording their songs for a certain period of time after the album has been released or after the contract period has elapsed.
The discussion of rerecording in Indonesia also needs to take into consideration the contract between the artist and the record label, which is more likely than not to contain a rerecording restriction clause
The term “rerecording” is not mentioned within Law No. 28 of 2014 on Copyright (“Copyright Law”). However, this does not mean that it’s impossible to be conducted in Indonesia. Publishing rights in Indonesia be compared to Hak Cipta,which is defined by Article 1 number 1 of Copyright Law as the exclusive rights of the creator that arise automatically based on the declarative principle after a creation is manifested in a tangible form. As the creator and copyright holder, Swift is provided with several rights, including the rights to engage in the publication and announcement of the creation (videArticle 9 paragraph (1) letter a and g of Copyright Law).
Taking this into consideration, it can be argued that she does not need to get any other party’s permission to create a new master recording of her old songs, as she already has authority over the musical composition. Referring to Article 24 paragraph (2) letter a of the Copyright Law, it is regulated that the economic rights of the phonogram producer encompass the right to carry out, grant permission, or prohibit other parties from duplicating the phonogram in any way or form. In Swift’s case of rerecording, the phonogram of the master recording that is now owned by Shamrock Holdings is not duplicated in the way that is meant by Article 24 paragraph (2) letter a of the Copyright Law. The reason for this is because the rerecording that Swift has been conducting creates a separate, independent, and new fixation which acts as a new master recording that she owns the right to.
The discussion of rerecording in Indonesia also needs to take into consideration the contract between the artist and the record label, which is more likely than not to contain a rerecording restriction clause. According to Article 1338 of the Indonesian Civil Code, all agreements made legally apply as law to those who make them. Thus, artists can only conduct rerecording once the rerecording restriction in their contract has elapsed. Referring to the case of Swift and Big Machine, Swift only has the opportunity to rerecord after the rerecording restriction expired back in November 2020. Therefore, it is necessary to refer back to the agreement between the artist and the record label regarding this matter.
In conclusion, although the practice of rerecording is not widely known and common in Indonesia, it is definitely an option and feasible for Indonesian artists to do. However, the artists must remember to refer back to the record deal with their record labels to prevent any unwanted disputes in the future.
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NOTE
This article provides general information and does not constitute legal advice. Readers should seek specific legal counsel for their circumstances.
