The History of Music Copyright—Before (Taylor’s Version)

The pop star’s efforts to control her master recordings has been an element of her ongoing advocacy for artist rights. The intricacies of publishing, licensing, and rights ownership in the modern music industry are quite complex. Though copyright may be law in one sense, public perception and popular opinion effect how the law is enforced in practice. The history of American popular music shows that the degree of agency an unsigned artist has to negotiate terms with industry representation can be profoundly affected by their class, race, and gender. Very few artists will ever reach the level of popularity and profitability that Swift enjoys, but by raising public discourse about music copyright she has helped to reinvigorate conversations about the value of music.

Copyright protection for “Authors and Inventors” is enshrined in the U.S. Constitution, which highlights the importance the framers placed upon encouraging creativity and innovation. Congress passed the first copyright act in 1790 protecting any “map, chart, book, or books,” which allowed authors the sole right to profit from the sale of their work for a limited time after which it would enter the public domain. Congress expanded copyright in 1802 to account for new advances in print technology and visual mediums. Interestingly, sheet music, which had existed for centuries, was not added to the list of protectable mediums until 1831.

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In truth, there was relatively little music generating revenue for copyright to protect in early America. That began to change when a 20-year-old Stephen Foster composed “Oh! Susanna” in the late 1840s. The song was an unprecedented hit, selling well over 100,000 copies in multiple editions. Foster failed to properly register and protect his interests and made next to nothing off the song. Despite enjoying numerous fair and favorable contracts throughout his career. Foster never learned how to capitalize financially on the public success of his songs and he died penniless in 1864.

The popularity of Foster’s songs demonstrated that there was money to be made in American music, and publishing houses observed how songwriters could be easily taken advantage of in the process. Beginning with Tin Pan Alley at the turn of the 20th century, the music industry professionalized rapidly. Composers and songwriters, despite creating the product that generated income, became increasingly separated from the business of music. Record label executives, music publishers, lawyers, agents, and other professionals handled the paperwork and managed the money. While some songwriters like Irving Berlin also learned the business side of music, such cases were the exception, not the rule.

Consider the career of Berlin’s contemporary Woody Guthrie. Guthrie did not have access to the kinds of industry support more mainstream artists had, but he did have access to his local library. In 1937, he researched the copyright registration process on his own, sent in the required documentation along with a one-dollar fee to register “California!,” and even asked the Copyright Office to send guidance about registration best practices. The Copyright Office responded promptly with an official registration certificate for “California!,” several blank application cards, and instructions for how to optimize future registrations.

This process was time consuming, however. Guthrie’s transient lifestyle and prolific output meant that much of his catalog was not registered or managed properly. The copyright claim in Guthrie’s most famous song, “This Land is Your Land,” has been contested by artists and content creators looking to use the song in new ways. Rather than to maximize profitability, Guthrie’s heirs have used copyright primarily to keep the song from being appropriated by commercial and political interests that are in direct opposition to his worldview. The key ethical question of copyright, like so many areas of the law, is not just about what rights are granted. It is about how the power granted by those rights gets wielded in practice.

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Over the course of the 20th century, many popular musicians like Chuck Berry and John Fogerty signed away their rights early in their careers, missing the full financial rewards when they later made it big. For many, accepting unfavorable terms had been their only option to break into the industry. Fogerty was famously sued by his former label and bandmates for sounding too much like himself when he went solo in 1972. Fogerty recently announced that, at the age of 80, he will be recording a (John’s Version) album of his Greatest Hits, in a nod to Swift’s success with the strategy.

Before Swift’s triumph, Prince is probably the artist who most skillfully used cultural influence to leverage their rights. When his label claimed a trademark in the rights to his name and all music marketed under it, he changed his name to an unpronounceable symbol until his contract with them expired in 2000. Similarly, much of Swift’s success has come from relying more on public relations than litigation to assert her ownership.

Inspired by a viral social media post from Kelly Clarkson, Swift began the process of rerecording her early work in November 2020. But that strategy only worked because she was also able to motivate her fans to choose (Taylor’s Version) albums on streaming platforms and even to repurchase her rerecorded work on CD, cassette, and vinyl. Including bonus material and other incentives was certainly part of the strategy, but the level of fan involvement in policing the (Taylor’s Version) transition has reached levels that are difficult to explain by marketing tactics alone.

Swift’s efforts to take legal control of her songwriting catalog have significantly raised the level of discourse about copyright law in popular culture. They have also provided a high-profile challenge to the trope of the struggling artist that has creative abilities but lacks savvy business skills. Swift’s management of her career has been touted as a model to reduce the structural inefficiencies in music licensing and broadcasting, to promote equity sharing with record labels, and to give artists in general more control over their creative work. After her rerecording venture was so successful, some major labels have sought to add language to future contracts preventing that outcome. But to do so, they will have to navigate the fact that artists are more aware of the value that they bring in the post-(Taylor’s Version) Era.