How Taylor Swift Was Able to Record That Potato-Salad-with-Raisins Version of “September”

I would like to think by now you’ve seen a reaction video of two older-generation, fabulous Black women unamusedly listening to Taylor Swift’s version of Earth, Wind & Fire’s “September.” Being an African-American woman, I was exposed to the great soul music of the seventies throughout my childhood, often at family gatherings. I love reading the comment section, and for this video, many had questions about how Taylor Swift obtained permission to re-record this classic. Welp. She didn’t need permission from Earth, Wind & Fire, and I’ll explain why.

Songwriters and producers can only control the first use or recording of their creative works. After the song has been recorded and published, anyone can re-record it as long as they pay the set statutory rate of 9.1 cents for every physical copy or permanent digital download of the song. While that permission can be obtained from the songwriter/producer directly, if, for whatever reason, permission is refused, permission can be obtained from the Copyright Office or a micro-licensing agency, such as the Harry Fox Agency, if the songwriter/producer is a member. When petitioning the Copyright Office, the person looking to re-record will ask for a compulsory license which will be issued at the statutory rate.

As I’ve mentioned in prior blog posts, Dolly Parton was the first person to release, and the writer of, “I Will Always Love You.” This release is both the underlying composition and first sound recording of this song. Then, Whitney Houston recorded her mega-hit version of the song. In both instances, Dolly Parton made a lot of money! Whitney’s team either obtained permission directly from Dolly Parton or her representatives or sought a compulsory license.

I highly doubt Earth, Wind & Fire would be pleased with Taylor Swift’s version of “September.” But, it’s highly unlikely many of Taylor’s fans know who Earth, Wind & Fire is. Hopefully, one of the band members is the songwriter of this tune and therefore, earning additional revenue from this re-recording. Interestingly, “September” was originally recorded before the US Copyright Law of 1976 was enacted. Songwriters make money when a lot of artists are recording their music and being successful with their versions. The government wanted to ensure songwriters couldn’t withhold the right to re-record their music after the first release, however, I don’t think unqualified pop stars re-recording soul classics was what they had in mind.

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EJLee Law Practice is a boutique law practice specializing in Entertainment, Intellectual Property (Copyright and Trademark) and Small Business Matters


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