“She can play live, anywhere she wants, any of her songs in the world — it’s the actual fixing those in a video format that’s the problem,” says attorney Biederman.
Taylor Swift brought the minutiae of copyright law into the pop world Thursday when she publicly complained that her former record company Big Machine Label Group wouldn’t let her perform a medley of her old hits at this weekend’s American Music Awards or in an upcoming Netflix documentary. Fans, fellow musicians and even Democratic presidential candidate Elizabeth Warren pledged support, and many raised the contractual question: How is this possible? Can a label prevent one of the world’s biggest stars from singing her own songs?
Indeed, artists signed to record deals can perform wherever they want — on TV, in a stadium, in a random field — but standard recording contracts stipulate that the performances in any of those places can’t be recorded and aired later without express permission. The issue here was not Swift’s right to perform, but how that performance would be recorded and viewed after the fact. And although the details of Swift’s Big Machine contract are unknown, this sort of restriction is part of long-standing record-label policy.
Big Machine has said Swift’s statements were “based on false information,” noting that the label does not “have the right to keep her from performing live anywhere.” But even if a label can’t prevent an artist from performing someplace, it can limit how that performance is recorded and distributed. If a band signed to a label plays a song in a club, that counts as a public performance and cannot be contractually restricted; if that band performs that song and it is recorded for a TV show to be rebroadcast, on-demand streaming service or a live CD, it must get approval from label execs. There are gray areas: Swift could headline South by Southwest and live-stream her performance on video screens throughout the festival, according to Jeff Biederman, a music business attorney, but without her label’s permission, she could not sign a contract with promoters allowing them to record the show and distribute it on Youtube or elsewhere later.
“Is it standard? Absolutely,” says Jason Boyarski of Boyarski Fritz, an attorney for the Prince Estate, Joan Jett and Lil Tecca. “It’s to prevent the artist from taking the exact same song, recording it again and delivering it to another label.” (That is something Swift, incidentally, says she plans to do starting November 2020 when the term of exclusivity for the songs on her early albums presumably expire.)
Music business attorneys say the Netflix and American Music Awards scenarios count as “re-recordings,” since Netflix’s content is available on-demand and the AMAs performance could be eventually aired later and official clips will likely be posted to YouTube — all of which could potentially cause the re-recording clause to kick in. (In these cases, the label would receive licensing fees or royalties on the master side, while Swift and her publisher Sony/ATV would receive monies for publishing.)
“It’s not like her sitting outside, performing in a park,” says Lincoln Bandlow, a copyright attorney in Los Angeles. “Every TV show is obviously being recorded and you’d have it for future reference.”
Adds Biederman, of Manatt Entertainment, an attorney for Dierks Bentley and the Miles Davis Estate: “She can play live, anywhere she wants, any of her songs in the world — it’s the actual fixing those in a video format that’s the problem.”
Neither Boyarski, Biederman nor Bandlow are privy to any of the details in Swift’s Big Machine recording deal. (Another veteran music attorney, Josh Grier of Sloss Eckhouse LawCo, says Swift’s ability to re-record her old songs in any setting depends on the language in her original Big Machine contract, which neither singer nor label has released. “Unless you have a copy,” he says, “I’d be guessing.”)
But, usually, Bandlow says, financial disputes like this one between Swift and Big Machine take place in private and end with some kind of settlement. By contrast, Swift’s public-relations strategy is to tap her massive fan base for support — 212,000 people have so far signed a Change.org petition to “let Taylor Swift perform her music,” declaring she has been “ROBBED by two white men who think she owes them anything.” Adds Bandlow: “It’s unusual to see an army of supporters being brought in to help with the negotiation. She’s trying to enlist her fan base to make a hue and cry for [Big Machine’s new owner Scooter Braun] to change his mind.”
On Monday (Nov. 18), Big Machine announced it has “agreed to grant all licenses of their artists’ performances to stream post show and for re-broadcast on mutually approved platforms.” And while the label did not specifically mention Swift in the statement, the implication was clear.
It also clarified: “It should be noted that recording artists do not need label approval for live performances on television or any other live media. Record label approval is only needed for contracted artists’ audio and visual recordings and in determining how those works are distributed.”
(The AMAs producer, dick clark productions, released a subsequent statement saying that it has not agreed “to, create, authorize or distribute a statement in partnership with Big Machine Label Group regarding Taylor Swift’s performance at the 2019 American Music Awards. Any final agreement on this matter needs to be made directly with Taylor Swift’s management team.”)
Swift has suggested Big Machine is taking advantage of her as a woman in the music business with its restrictions on what she can and can’t do with her songs. She wrote: “The message being sent to me is very clear: Basically, be a good little girl and shut up. Or you’ll be punished.” Whether that’s true or not, Swift most likely submitted to standard record-business procedure early on in her career: Sign a contract before you become a star and deal with the consequences — like pesky no-re-recording clauses — later.
“I would think an artist of her stature would not have such a clause and would have some voice over the use of her music,” Bandlow says. “It seems strange. But it may have been old songs before she had some level of clout, so she signed all rights, title and interest to somebody else. At that point you don’t control your music, you’re just a singer.”
The AMAs are produced by dick clark productions, a division of Valence Media, the parent company of the Billboard-Hollywood Reporter Media Group.