No sooner had Taylor Swift buried the hatchet with long-time nemesis Katy Perry, than a new row has erupted between the popstar and another old enemy. This time the singer’s beef is with Scott Borchetta, founder of the singer’s old label Big Machine, and Scooter Braun, the producer to whom Borchetta sold the label (and with it her back catalogue of recordings) for £237million earlier this year. It’s been a year since Swift left Big Machine to sign with another label, so you’d be forgiven for thinking her old record deal was ancient history – but it hasn’t proved that simple to Shake It Off.
The latest fight emerged when Swift launched a high-profile diatribe against Braun and Borchetta, saying they were blocking her from performing a medley of her hits at the American Music Awards. For their part, Big Machine denied they had the power to prevent her performance even if they wanted to, and said Swift’s narrative “does not exist”.
Well, if you saw the show on Sunday you’ll know that in the end the star did get to go ahead with singing a selection of her old songs – and with more publicity than she may have garnered had the bust-up not happened. But who was in the right? What is the legal position with Swift’s music – and how did the row get so heated?
What got Swift so riled?
The virulence of the spat can be explained by Swift’s history of Bad Blood with Braun. The pair’s feud goes back to Braun’s links with the singer’s other notorious foe (keep up at the back), Kanye West. West infamously interrupted Swift’s ‘Best Video’ acceptance speech at the 2009 VMAs, and Braun was the rapper’s manager when he released the song “Famous,” which references Swift in less than flattering terms. When Swift criticised the track, West’s loyal wife, reality star Kim Kardashian West, released a clip purporting to show the singer giving him permission to use the lyric. The whole incident was a huge blow to Swift’s Reputation and saw her inundated with snake emojis on social media.
It’s little wonder, then, that Swift saw Red when Big Machine fell into Braun’s hands, describing the situation as her “worst case scenario”. “Essentially, my musical legacy is about to lie in the hands of someone who tried to dismantle it,” said Swift at the time of the sale. Swift had hoped to be able to buy the rights to her sound recordings from her old label herself, but claims the only option given to her was to “earn back” each of her albums, one at a time, with every new album she produced.
Can Swift really be blocked from performing?
Now, taking aim at Braun and Borchetta again, Swift has released a despairing statement claiming that her future projects are in jeopardy because of the two men. But is it really possible for her old label to be so draconian as to stop her performing? They say not. “Recording artists do not need label approval for live performances [of their songs] on television or any other live media,” Big Machine said in a statement. “Record label approval is only needed for contracted artists’ audio and visual recordings and in determining how those works are distributed.” So who’s right?
In reality, under most record deals it is an artist’s current label that has exclusive rights in their sound recordings and to make audio and audio-visual recordings of their musical performances, including live performances recorded for TV and online. So Swift’s new label, Republic Records, would likely have had to grant permission for her performance at the AMAs this year, not Big Machine. There are also rights in the song itself – the underlying musical work and lyrics. Songwriters assign these to music publishing companies, whose permission would also need to be sought for such a performance, and for clips to be published online after the show.
What Big Machine would have retained is the rights in the sound recordings of the albums Swift made while signed with them. Swift says that her contract with Big Machine means she cannot re-record those albums until November 2020. Such a clause is not uncommon in the record industry. It allows the artist’s original label to protect their investment for a time period after their deal with the artist ends, by stopping the singer from immediately rerecording their songs for another label. But that sort of clause usually only applies to studio re-recordings of albums – it shouldn’t prevent an artist performing on TV after the term of their record contract because the exclusivity would have expired.
Big Machine’s ownership of the earlier sound recordings also means they could choose whether to grant permission for those original recordings to be used in other media – advertisements, films, television shows and so on. That means they could withhold permission for Swift’s recordings to be used in her forthcoming Netflix documentary – another project she says is at risk thanks to Braun and Borchetta.
Is this normal?
It’s perfectly normal for a musician to sign over the rights to their recordings in return for an advance on sales and royalties on any profits. Under a traditional recording contract, a label usually demands that the artist assigns copyright in the recordings to the label worldwide. And with young stars desperate for a chance to make it in a competitive industry (Swift herself was only 15 years old when she signed her deal with Big Machine Records), it’s little wonder record labels can demand a deal in their favour. Now Swift has the bargaining power of mega-stardom, she was able to insist on ownership of all her new recordings before she signed in the Blank Space on her new record deal – but that is unlikely to be possible for an artist starting out to negotiate.
While it’s certainly no Love Story between Swift and Braun and Borchetta, the whole sorry tale is a salutary lesson to artists, labels, and, indeed, anyone whose works skirts the periphery of the music industry. As this story shows, there’s a complex bundle of different, but overlapping, rights at play in the world of music. If you want to use an artist’s music in an advertisement or television programme, you will need to seek permission from the owner of the sound recordings (which could be the artist’s old label) and the publisher, who owns the rights to the songs. Or, if you want to arrange a live performance from an artist, you will almost certainly need permission from their current label. And if the whole business makes your head spin, Speak Now – to a music lawyer.
"It should be noted that recording artists do not need label approval for live performances on television or any other live event."