Tanzim Rashid is an IP Innovation Clinic Fellow and a 2L JD/MBA Student at Osgoode Hall Law School & the Schulich School of Business. This article was written as a requirement for Prof. Pina D’Agostino’s Directed Reading: IP Innovation Program course.

Taylor Swift’s dispute with Big Machine Records shines a spotlight on the legal and business considerations artists should keep in mind when making decisions about how to manage their catalogue.��

Sparks Fly

In , Ithaca Holdings acquired Big Machine Records for an estimated $300 million, including the master recordings for one of the most popular and successful musicians in the world:��Taylor Swift. Swift, in being denied an opportunity to bid for her masters, in late 2020 that she would re-record her entire pre-2019 catalogue in order to regain control of her music and limit the profitability of Ithaca’s asset. Over the next year, Swift released re-recorded versions of both her Fearless (2008) and Red (2012) albums, receiving widespread commercial and critical success.

Look What You Made Me Do

At the heart of Taylor’s decision was an often overlooked but significant legal distinction in the copyright law governing the music industry. All music can be subdivided into categories of copyright: lyrical, compositional, and sound.��The former (‘recording rights’) are generally retained by an artist, while the (‘master rights’) – as part of a record contract signed by musicians in the formative stages of their career – is owned by the record company (including prohibitions on re-recordings for a set number of years) with certain vetoes the artist can assert with respect to how they are licensed.��Swift, in deciding to re-record her albums, ensured that her new (Taylor’s) versions gave her all three types of intellectual property right over her catalogue, guaranteeing full ownership.

While many artists both past and present have record contracts that follow this same structure (and provide for a legal avenue by which to circumvent the record company’s ownership of the master recordings), it was Swift, at the height of her popularity, who decided to invest the time, energy, and cash in order to take advantage of this technicality. These circumstances are noteworthy: artists in similar positions to Swift often either lack the time, the financial resources, or the industry power to pull off a move like this. It is in Swift’s confidence in her fans adopting the newer versions of her recordings, and thus giving effect to the technicality she is leveraging, that her decision was made and her temporal and financial investment was put forward.

Everything Has Changed

Shamrock Investments, who acquired Swift’s master recordings from Ithaca in 2020, are in an increasingly tenuous position: Swift has them from licensing to ad agencies, films, and tv shows, and where they do license, Swift receives royalties in those cases. On top of all that, their investment in the original recordings depreciates in value every time Swift releases another one of her re-recordings or a company licenses them instead of the originals.

Major players in the music industry (including Swift’s own Universal Music Group) have responded in light of Taylor’s shrewd business moves, doubling or tripling the length of re-recording prohibitions in their most recently signed record .��Artists are now for up to ten years after commercial release before re-recording their music, which also happens to be the period when their works are at their highest monetization potential. The music industry is now acutely aware of how digital streaming platforms provide artists with a never-before-seen ability to sidestep large traditional record companies when attempting to publish their re-recordings, creating a much-heightened potential for Swift’s precedent setting move to be seized upon by other successful artists looking to take back control of their creative output. From a legal perspective, Swift’s ability to resolve this dispute without reliance on costly, time intensive litigation or a protracted negotiations process has also put the music industry on notice, including their in-house counsel, who will be much more meticulous in drafting new agreements to best protect their company’s investment.

End Game

Looking to the future, it appears that beyond her personal dispute with the owners of her original masters, Swift is looking to inaugurate a major shift in the music industry at large, relocating bargaining power to artists from record companies. However, in capitalizing on the legal technicality available hitherto her dispute, with the unique power she wields in the industry, it may be the case that Swift’s maneuver may end up disempowering less powerful artists, who will now face stricter terms on their freshman record deals and an army of legal counsel prepared to respond to strategies similar to those deployed by Swift. As record companies fortify their defences, most upcoming artists may not be in a position to fight back against The Man.

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Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law

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Olivia Rodrigo rose to stardom this year when her song Drivers License dominated pop music charts across the world. However, Rodrigo’s subsequent album Sour has recently been circulating the news cycle for less sweet reasons. Rodrigo has come under fire for copyright theft and plagiarism for her songs Deja Vu and Good 4 U.

What happened?

Rodrigo’s highly anticipated debut album, Sour, was released in the wake of the success of Drivers License. Music fans quickly noted the similarities between Rodrigo’s songs and already popularized songs including . Despite the similarities, some are arguing it’s questionable if Rodrigo committed copyright theft. Good 4 U has a similar melody and chord progressions with Paramore’s Misery Business, but besides the angsty punk undertones many generations of teens have come to love, many contend the songs are not all that similar.

What is copyright and copyright infringement?

Copyright is the or perform a musical work. Copyright infringement is the use or production of copyright-protected material without the permission of the copyright holder. In essence, copyright infringement is plagiarism. In Canada, courts will determine whether a body of work has been infringed upon using the . Copyright protections are granted as soon as a work is created, so long as it meets the conditions set out in the Act.

What are music royalties? Why did Rodrigo pay them?

Music royalties are payments received by songwriters, music composers, and publishers . Essentially, artists pay royalties to copyright holders in exchange for using part of their work. Like them or not, the music industry heavily depends on royalties and many artists rely on them as a primary form of income. The growing popularity of music streaming platforms like Spotify, , further cements their importance.

This royalty debacle has been costly for Rodrigo. Hayley Williams and Joshua Farro were given writing credits on Good 4 U and Swift, Antonoff, and Clark will also receive writing credits and on Deja Vu. These moves will likely cost Rodrigo millions of dollars in publishing royalties. When weighing the costs of paying royalties versus lengthy litigation against fellow hitmakers in court, Rodrigo and her team likely felt it was most cost-beneficial to simply pay the royalties.

Are artists abusing copyright?

Artists are becoming increasingly concerned about outlandish copyright claims in the wake of the 2013 case involving the estate of Marvin Gaye and the trio behind Blurred Lines, Robin Thicke, Pharrell Williams, and Clifford Harris Jr. (T.I.). The trio alleged that the Gaye estate staked an ownership claim of not a song or an album, but rather an entire genre of music. Thicke and Williams were found guilty of copyright infringement and were ordered to pay This amount was , in addition to half of all future royalties from Blurred Lines.

Although caselaw is rife with examples of major royalty deals ordered to artists, not all cases end with million-dollar payouts. Katy Perry was successful in her appeal against rapper Flame for her song Dark Horse, which Flame asserted plagiarized his song, Joyful Noise. Specifically, the case centered around an eight-note “ostinato.” The judge ruled that the ostinato . Perry’s lawyer praised the ruling and proudly stated, “building blocks cannot be monopolized.”

The controversy has only further advanced the argument that outrageous music copyright lawsuits are going to lead to stagnation in the music industry. Some record labels are going so far as to hire on-call musicologists who can review new releases for potential copyright claims. Artists signed with major record labels are also encouraged to sign “Errors and Omissions” insurance, which protects them from legal challenges to their intellectual property. Errors and Omissions policies . Shockingly, copyright litigation in the United States . Along with its high costs, the fear of copyright litigation risks preventing less established, albeit talented, musicians from climbing the charts without the support of a major record label.

Although new to the hit music scene, Olivia Rodrigo has not only offered music lovers catchy pop anthems, but has also advanced the conversation surrounding copyright theft in the music industry. While some believe Rodrigo is guilty of plagiarism, others feel she is a victim of the corollary impacts of the growing popularity of streaming services and increasingly outrageous copyright infringement suits. The latter camp can only hope that the courts will become more stringent in future suits to prevent music monopolies.

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Photo Credits: (unsplash.com)

Meena Alnajar is an��IPilogue��Writer, IP Innovation Clinic Fellow,��and a 2L JD Candidate at��Osgoode��Hall Law School.��

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Taylor Swift broke records in 2020, releasing two albums in six months. Starting with Folklore, the strayed from her signature pop country style towards a more indie, contemporary folk style. Her second album Evermore boasts similar vibes but was also accompanied by a lawsuit filed by . Evermore Park, a Utah-based fantasy theme park, claimed that Swift infringed on their ‘Evermore’ trademark, which the park had registered since 2015. The park was seeking nearly $2 million in damages. After a month of silence, Taylor Swift’s team launched an unrelated suit against Evermore Park for copyright infringements. A volunteer at Evermore Park informed Swift’s team that park employees performed several of her songs in 2019. On March 24, 2021, it was announced that . However, the question still stands: Who would succeed in these claims—the struggling park holding a registered trademark, or the multi-millionaire artist claiming copyright infringement? Or both?

Trademark Infringement

perceived Evermore Park’s trademark infringement claim as opportunistic as the park and was struggling due to pandemic shutdowns. Despite these possible motives, it is worth investigating if Swift actually infringed on Evermore Park’s registered trademark.

According to the United States Patent and Trademark Office, a plaintiff with a must prove that they own a valid mark, that they have priority to the mark, and that the defendant’s mark is likely to cause confusion for consumers about the goods or services offered under the parties’ marks. Evermore Park fulfilled the requirement of owning a valid trademark, as it has owned the ‘Evermore’ trademark since 2015. The issue is whether there would be confusion between the theme park and Taylor Swift’s album. Courts consider to determine if there is a likelihood of confusion. The primary concern is if goods or services are similar enough or sufficiently related that consumers would likely mistake them as coming from the same source. In this case, Swift’s album appears to be little similarity with the fantasy theme park, and so Evermore Park likely would not have been able to establish a likelihood of confusion to support their trademark infringement claim.

Evermore Park further alleged that Swift’s album damaged the park’s reputation as the album became the for ‘Evermore’, driving the park off the first page of search results. Evermore Park might have been able to claim trademark , which occurs when the unauthorized use of a trademark will likely weaken or harm the mark’s distinctive quality. Swift’s use of ‘Evermore’ can be argued to have diminished the strength of their trademark by blurring the mark’s distinctiveness. Swift’s album reached on the Billboard 200, strengthening the association between the word ‘Evermore’ and her album, and diminishing the word’s association with Evermore Park. However, in , the court ruled that search engines such as Yahoo! and Google are immune to state law intellectual property claims in the United States under the Communications Decency Act. That is, courts have historically dismissed trademark infringement claims which argue trademark dilution on the basis of changed search engine results when searching for the mark. Even with the suits dropped, Evermore Park’s allegations of trademark dilution would likely be dismissed.��

Copyright Issues

Twenty days after Evermore Park filed their claim, Swift’s company TAS Rights Management , claiming that park performers were performing Taylor Swift’s songs without a license. The performing rights organization that any unlicensed performances constitute infringement, and yet Evermore Park continued hosting these performances.

In America, occurs when a person uses a protected work, through methods of performance, distribution, and/or posting, without the owner’s permission. The park performed these songs without a license and were warned of the infringement. These factors make it likely that Taylor Swift had a strong copyright infringement claim against the park. At the very least, Swift’s copyright claim was persuasive enough to encourage Evermore Park to drop their lawsuit.��

Lessons from Swift’s Lawsuits

When filing for trademark infringement, one should be sure that the average consumer would be confused between the two products or services and that the trademark’s distinctiveness was negatively affected. Swift’s record-breaking indie alternative album undoubtedly contrasts a fantasy theme park in Salt Lake City, Utah. The caselaw would likely not support Evermore Park’s dilution claim, as the court has previously held that changes in search engine results are not a strong enough argument for finding trademark dilution (; ). Whether it was the tangible threat of Swift’s copyright claims or the apparent flaws in Evermore Park’s trademark dilution claim, Evermore Park and TAS Rights Management hurriedly . Swift’s album title will remain, now and likely forever, Evermore.

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The Canadian broadcasting and telecommunications industry is subject to a of tariffs governing a myriad of rights, all collected by dozens of Collective Management Organizations (CMOs). Unlike��the US, which has continued with a remuneration system based on an anachronistic principle: commercial radio play has that excuses users (like radio stations) from paying a royalty to performers and makers of sound recordings. Such thinking dates back to a time when people actually bought music in the form of CDs or vinyl records, instead of just streaming it. The right to remuneration for performers and makers of sound recordings is guaranteed as part of the , but the US has not acceded to this WIPO treaty, though the proposed changes could��indicate an intention to fulfil its obligations.

Canadian artists are about the paltry sounding 10c per 1000 plays that webcasting services like Songza*��might pay to Re:Sound under . Particularly so when��compared to the roughly $1.10 per 1000 plays paid out by similar services in the US. However such an comparison��paints far less than the full picture – aside from the Re:Sound tariff, a separate rate is also paid by webcasters to for the composition. That’s not to say that the Canadian rates always result in ‘fair and equitable’ remuneration, but it does at least address the relevant stakeholders in a sound recording of a musical work, which is one of the areas where the US system appears to be fundamentally broken.

In truth, addressing the remuneration issue can’t promise to fix the problem of artists and songwriters being paid fairly for their work. The new digital media economy is a fundamentally different landscape that requires some radical thinking to navigate. Some�� to demonstrate how a healthy payment can easily be soaked up before it even reaches artists. Still, the US report promises to begin the sisyphean task of adapting the royalty regime to try to keep up with the pace of change.

Does this report have any significant impact in Canada? Possibly. ����have speculated that because the absence of a remunerative right for radio play in the US means that Re:Sound does not include US-based works in its repertoire.��This means��the commercial radio tariff here is calculated to only account for recordings from countries party to the Rome Convention. This is a significantly smaller group of works. For example, if US-based works account for roughly, say, 50% of what is played on radio, then the tariff is calculated to be about half of what it might otherwise be simply because half of the musicians and sound recording makers do not to��need receive any compensation from Re:Sound. A remunerative right in the US would likely trigger a reciprocal obligation, which is pretty much already guaranteed with the impending ratification of the . This means��tariffs would be calculated to incorporate a much larger body of works, which would likely result in a significantly higher royalty determination than broadcasters and streaming services are currently paying. If the tariffs are discounted at a (theoretical) rate of 50% due to US repertoire exclusion, then inclusion would logically merit something close to a doubling of the tariff.

In the meantime, Canadian performers can reflect on the upcoming judicial review for Tariff 8, in the hope that their royalties amount to more than a share of 50% of 0.01c every time someone enjoys the fruits of their labour over a webcasting��service. It's also worth noting that��although a right of remuneration exists for internet-based services in the US, the equivalent tariff in Canada ()��was��based on the commercial radio tariff (), and also appears to incorporate at least some of that aforementioned repertoire discount. Tariff 8, however, only covers a period of three years, and was determined with some serious evidentiary problems during the hearing process. Future certifications from the Board in this area are likely to rise.

There's much, much more to be said about Tariff 8, and hopefully this topic will be revisited in serious depth as the judicial review works its way through the courts. Stay Tuned.

*note that Spotify is not included as a webcaster, and is subject to a separate tariff as a fully-interactive audio website which is set at a higher rate than Tariff 8.

Andrew Hunter is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.��

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