Generic Fair Use

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Tag: songwriting

Seeing “Red”: Taylor Swift and the Dueling Copyrights in a Song

Taylor Swift is one of the most prominent and successful musical artists of this decade. She has registered over 100 song copyrights with the U.S. Copyright Office.[1] Of course, Swift was a teenager when she first entered the music industry. The stories of exploitation within the industry by record companies, managers, agents and representatives are vast. It appears not even Taylor Swift was immune from a rather nasty dispute with the entity that produced her first six albums.

Over the weekend, Swift sent out a tweet to her 85 million Twitter followers.

While I am very familiar with who Taylor Swift is (though I prefer Tool), there are enough stories about her ongoing dispute with Scooter Braun, Scott Borschetta and Big Machine Records. I will let someone else explain the gossipy details involved there. Nor will I perform any deep dives into the private equity acquisition of Ms. Swift’s former record company that led us to these contractual impasses. Elizabeth Warren and AOC have already dipped their toes into that murky water.

Instead, I immediately realized this topic has copyright law implications. Did you know that most recorded songs have at least two separate copyrights associated with them? That is partially why there is such drama between Taylor Swift and Big Machine’s new owners. Ms. Swift, for one, very much does not welcome these new corporate overlords.

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How do I avoid copyright infringement as a songwriter?

It has long been a running joke that if you only know how to play the G, C and D chords on a guitar, then you already know how to play hundreds of different popular songs. Many musical acts have been ridiculed for only playing the same three chords over and over. “Three-chord” rock music is practically its own genre. The I-IV-V major key chord progression is even considered the “standard” blues progression. Within that construct, there are only 12 basic “notes” or tones in the musical spectrum: A, Bb, B, C, C#, D, Eb, E, F, F#, G, and G#. From there it is just a matter of octaves to achieve different ranges of an “A” note. In short, there is a finite amount of discrete notes along with a relatively limited amount of chord progressions that are available to a songwriter.

Copyright law, meanwhile, only protects “original works of authorship” in musical works and sound recordings.[1] It is right there in the statute: the song or sound recording must be original. Without the element of originality, there is nothing protectable under the law.

Knowing this, and with hundreds of years of the history of songwriting, are there any songs that are truly “original” anymore? Is there any progression or riff that is so unique as to stand apart from every song that has been previously written? If not, how are musical works still subject to claims of copyright infringement and why should we care?

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