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The Sharks Try To Silence Taylor Swift

Taylor Swift onstage during her Reputation tour.
Taylor Swift's "Reputation" tour in Minneapolis, August 2018. Photo by Michael Hicks.

In many respects, Taylor Swift has led a charmed life as a performer and songwriter. But even Swift is subject to the first rule of the record business: Never underestimate the lengths to which labels will go to expand and defend their turf.

Swift (who turns 30 next month) feels victimized by Scott Borchetta, founder of Big Machine Label Group, and Scooter Braun, who added Big Machine to his sprawling entertainment business empire this summer. Her feelings are understandable. From what I can see on the public record, they are also justified – but I think she is more a victim of the system than of the two men in question. When a shark bites you, it hurts and you bleed. But you can hardly blame the shark for behaving like a shark.

Although I work with recording artists’ contracts regularly, at first the latest spat between Swift and her former label (she moved to Universal Music Group’s Republic Records last year) hardly made any sense to me. Turning to her vast social media following last week, Swift accused Braun and Borchetta of blocking her from performing her early hits on an upcoming American Music Awards broadcast, during which she is to receive an AMA honor as Artist of the Decade.

(In an increasingly odd chain of events Monday, Big Machine claimed it had reached an agreement with Dick Clark Productions, producer of the AMA telecast, to allow Swift to perform her songs as she wished. But the production company promptly denied any such agreement, and said it would deal only with Swift and her team. Maybe all the drama will be good for ratings. My guess is that Monday’s announcement amounts to a white flag from Big Machine, and that ultimately Swift will come out on top with freedom to perform what she wants. Few artists win such fights, but my comment about Swift having a charmed life, as well as a lot of business sense, still holds.)

Ordinarily, a label can’t prevent anyone from publicly performing one of its artists’ songs, for reasons I will shortly explain. I could legally get up on that stage and sing “Tim McGraw” in front of those cameras without violating Big Machine’s rights (although I would not inflict this on anyone, nor would any network let me). So I wondered: How can everyone in the world be free to sing Taylor Swift’s old music on television without Big Machine’s permission, except Taylor Swift herself?

Then I read a Variety article (and later the same information from Billboard) that explained the rationale. It made perfect sense – as long as we remember to expect sharks to behave like sharks.

To understand what is happening, we need to dive into a bit of Swift’s professional history. Swift signed with Big Machine when she was 15 years old and released her first six albums on that label. She rocketed to success at 16 with her hit single “Tim McGraw” and never looked back on her way to becoming first a country and then a pop superstar. She has written or co-written nearly all her music, and has earned a reputation as one of the most talented and prolific songwriters in the business.

Songs are owned by their writers and, in most cases for songs you have heard of, the writers’ publishers. Swift signed her first publishing deal at age 14 with Sony/ATV – even before Borchetta and Big Machine had signed her as a recording artist. All the songs on Swift’s albums are controlled by Swift and her publisher. She has a good relationship with Sony/ATV and re-signed with that organization in 2016. Writers and publishers typically get paid whenever someone performs a song they own publicly, whether in a concert or on television.

Labels do not own the songs, but they usually own the master recording – the version you hear on the radio or a streaming service. A high-profile artist can sometimes own her own masters, which is the case for Swift under her new deal with Republic and UMG. Unknown 15-year-olds, like Swift when she signed with Big Machine, don’t get to own their masters. They don’t have the leverage to squeeze that concession out of the labels. The labels behave like venture capital funds: They invest in many artists knowing that most will wash out, some will achieve modest success, and a few unicorns have the potential to make them rich. The teenage Taylor Swift proved to be a unicorn.

But that does not explain how Braun and Borchetta could team up to stop Swift from performing songs that she owns, together with her friendly publisher, on the upcoming AMA broadcast.

Owning an artist’s master recording is not worth very much if the artist is free to simply re-create that recording in another studio. It is standard to include a clause in a record deal that prohibits the artist from re-recording the label’s titles for a certain period of time without the label’s consent. When Swift left Big Machine, she wanted to buy her old masters, but Borchetta refused to sell them. By her own report, Swift is prohibited from re-recording those tracks until next year. She has said she looks forward to doing exactly that. I am not sure how much demand there will be for a performance by a 30-year-old woman of teen-angst titles like “You Belong With Me,” but she will be free to create that performance anyway. I would guess Swift might re-release such tracks in a live album format.

Braun and Borchetta apparently do not like the idea of competing with a grown-up Taylor Swift performing her own music. Swift says they barred her from performing the songs in question on the AMA show unless she agreed not to release such new recordings. Braun and Borchetta have denied Swift’s “narrative,” while publicly claiming that she owes Big Machine “millions of dollars and multiple assets.” Swift’s team promptly pointed out that the label’s statement did not deny the specific claims she made. Her representative also denied Big Machine’s financial claims, citing the findings of an independent auditor.

So how do Braun and Borchetta have the power to block Swift from singing her old hits on the AMA broadcast? By claiming that the network broadcast would itself be a “re-recording,” which she is contractually barred from releasing for another year. I could sing Swift’s songs on that broadcast (I promise I won’t) without any legal recourse by Big Machine, but she can’t.

Whether this is right in a moral sense, you can draw your own conclusions. From a technical and business sense, everyone did pretty much what they were supposed to do. Swift’s representatives got the teenager a record deal with an organization that helped her reach global stardom, on what seem to be at least standard, if not better-than-standard terms. The label has found a creative way to use a standard provision to try to maximize the value of what it owns: Swift’s masters.

Beyond a single awards show broadcast, the latest tiff between Swift and her former label has also entangled a planned Netflix documentary, whose existence the singer reluctantly revealed when she went public against Big Machine last week. Apparently, Netflix wanted to use some of the original recordings, which the label clearly controls, and possibly some performance footage involving her early songs – which, again, Big Machine apparently asserts would be a prohibited “re-recording.”

From now on, artist representatives will be sure to insist on contract language that specifies that a public performance of a song by that artist, whether broadcast, streamed or in a concert venue, is not considered a re-recording unless the performance is subsequently released for audio-only consumption. It is our job as advisers and business managers to keep the sharks at bay, while still letting everyone get into the water.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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