The Devil's Contract

Taylor Swift is not the first to fight this fight

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Taylor Swift unleashed her army of Twitter followers on the universe this week in her ongoing fury at a contract gone bad. She isn't going to gain control of her master recordings anytime soon, but that won’t stop her from being one of many artists who have battled bad contracts they signed to kickstart their careers.

The situation, in which Swift's back catalog of six albums is owned by someone with whom she has a tempestuous relationship, is unfair and it is a greedy attempt by a business entity to capitalize on her hard work and success. But it is far from unique and affects independent artists who have a small but loyal following as well as some of the biggest names in the music business.

Contracts for new artists in media-based creative businesses including music, writing, and film-making, are notoriously unfair to the artist. The proffered reason for this is simple. The record company or publisher is taking a risk in making someone's work available to the public. The artist generally would get an advance up front and a royalty as well, once the advance is recouped.

 Meanwhile, the record company is investing in studio time, producers, pressing and packing the record, marketing, sales, and distribution. Now, if an artist becomes super successful and decides to leave the record company, what then? Maybe they've made their money back and a profit to boot, but maybe not. 

So standard contracts for new artists typically specify that the recording masters belong to the label for a specified period of time. Or in perpetuity, which means forever.

Swift is pissed off, and she has every right to be. The place where the business of music meets the creative side can make Robert Johnson's piece of business at the crossroads look like child's play. Artists looking to get their music in front of an audience and find fame and fortune at the same time don't always have an understanding of the contracts they are signing or they don't have adequate legal assistance or managers who are looking out for them. 

Even if they do understand, many are told that giving up masters or publishing rights are standard in the business, the price of getting their music in front of a paying audience.

Prince and Warner Brothers

The most recent case involving master tapes that many will recall involved Prince and Warner Brothers. Prince grew tired of artistic constraints which he felt the label placed on him, notably the stipulation that he release only one album per year. He released a three-disc set, Emancipation, in 1996 on his own NPG records. 

But Prince, like any other successful artist, wanted control of his publishing and his masters. Ownership of his most successful recordings, such as 1999, Dirty Mind, and Purple Rain, all remained with Warner Brothers. 

Much like Swift, Prince threw an artistic tizzy fit. He protested--loudly--in all of his media interviews and from the stage. He wrote the word 'slave' on his face. He even changed his name to an unpronounceable symbol of his own invention, giving rise to the epithet 'the artist formerly known as Prince.' 

None of this did much for Warner Brothers' PR, but neither did his antics get his masters returned to him. In 2014 he returned to Warner Bros. after 18 years, and as part of the deal he signed then, he regained control of his masters as well as his publishing rights. 

Part of the reason Warner agreed to the deal was the looming Copyright Revision Act of 1976. It reduced the amount of time before termination of master recording contracts from 56 years to 35 years. As of 1978, the year Prince's first album was released, the Warner ownership of his masters beginning in 2013. With general uncertainty in the industry of how the law would play out in challenges that were sure to arise, label executives and artists have been eager to work out deals that allowed ownership to return to the artist in order to retain the ability to reissue an artist's work. 

Paul McCartney was famously unhappy when Michael Jackson obtained the publishing rights to a group of Lennon/McCartney songs by purchasing the ATV catalog in 1985. Because these Beatles songs were written before the Copyright Revision Act went into effect he had to wait for 56 years, or 2025, to regain his rights. McCartney has taken steps to position himself to take back the rights by writing to the U.S. Copyright Office and declaring his intention to do so in 2015. 

When the sale of Big Machine was announced, Swift let it be known that she intended to re-record and re-release all six of her Big Machine albums. That certainly sounds like a reasonable threat coming from an artist of Taylor's stature, but thinking it through reveals a lot of uncertainties and questions. Would fans pony up to repurchase these reruns? Swift would effectively be competing with herself: she'd still earn royalties on the original recordings owned by Big Machine, but she'd get a bigger chunk of change from sales of the new albums.

During his feud with Warner Brothers Prince also declared that he would redo all of the albums he recorded for the label and release them himself. It never happened, presumably because Prince discovered how costly it would be (even though he could have played most of the parts and produced the records himself), how much time and effort it would take and what kind of toll that might take on his creativity and future career. 

The better answer is to concentrate on your future career and on putting out great music that your fans will want to hear as much as they loved the old stuff when it was first released. Some have suggested that Swift could get new versions of her hits out by releasing a live album, and that seems like a better solution, as a live Taylor Swift album would no doubt be a huge commercial success. Regardless, Swift's threat to re-record her music isn't about the financial aspects of the arrangements.

John Fogerty: “I wouldn’t stop singing the songs”

The fight between Big Machine and Swift has been reignited by her claim that the label has refused her permission to perform her old songs in a career retrospective performance on the American Music Awards, where she'll receive an Artist of the Decade award. It's not completely clear whether the label is actually intending to enjoin her from performing the songs, but according to the letter of her contract's re-recording clause, they could make a case for doing so.

It would be unusual, though, according to entertainment industry lawyers, who point out that television performances are generally given a pass by rights owners because they are low fidelity and not meant to compete with an artist's recordings and because they generally act to increase sales of an artist's recorded music rather than suppress it. 

John Fogerty, who rose to fame as the songwriting talent behind Creedence Clearwater Revival, had similar issues when he was trying to get back the publishing rights to his songs from the Fantasy record label. Like Paul McCartney, Fogerty is still waiting for the old copyright to expire under pre-1976 terms. For a period of time he refused to perform any of his Creedence songs, an approach that he has acknowledged to be a mistake:

"I wouldn’t stop singing the songs. That’s something I did, and I don’t advise that. That really harmed my career. That’s something I learned. But I did it for me, you know. That was a point of self-pride and dignity, I guess, and that’s why I did that. I did the best I could with the hand I was dealt."

Just as it's disputed whether Big Machine is actually trying to block Taylor's performance of her old songs on the AMA, the label has also contended that they gave her an opportunity to buy her masters back which she rejected. Swift says that's not the case and that the sale took place without her knowledge or any chance to obtain her masters. 

Media mogul David Geffen, who Scooter Braun has described as a mentor, told the New York Times that "She (Swift) didn’t want to put up $300 million. Someone else did. They offered her a deal that she rejected to get ownership of her masters. Only time will tell who made the wise decision."

Fogerty finds that difficult to believe, stating that "her lawyer (Don Passman) said that she was not given a chance to buy it (the masters). And I believe that statement. I don’t believe the cover-up PR spin doctors on the other side trying to say that Taylor turned down the opportunity because there’s probably nothing more on this earth that she would want more than those masters."

Regardless of what happens at the AMA, the purchase of Big Machine by Scooter Braun, who manages singers Justin Bieber and Arianna Grande is a bitter pill for Swift to swallow. Braun also managed Kanye West in the past, a time during which the newly-religious recording star engaged in some public feuding with Swift. 

Though the sale of Big Machine and loss of her masters would likely have upset Taylor regardless of who the buyer was, it would have been a business decision. With the agreement to sell his label to Braun, former owner Scott Borchetta was, according to Swift, deliberately trolling her, knowing that having Braun own her masters would be a personal Armageddon as well as a business issue. At the time of the sale this summer, Swift referred to it as a 'worst-case scenario.'

Coming Back Stronger: Bruce Springsteen

Although Swift may not reclaim her masters by raising the issue now, there is little question that having an artist of her stature question the practices of private equity firms and the music/entertainment business makes both the public and those in a position to change things take notice. In recent days Swift has garnered support from Elizabeth Warren and Alexandria Ocasio-Cortez in her battle. 

The fight may also have an effect on Swift's future music, altering its content and style as she looks at things from a different perspective. That happened to Bruce Springsteen when he was under court injunction not to record or perform for a full year during his 1976 lawsuit against his original manager Mike Appel, who had signed Springsteen to horrible contracts in 1972. Bruce became aware of the situation following the enormous success of his third album, Born to Run.

When Springsteen returned to the studio the following year, his music was very different from that on Born to Run--darker, more serious, with the buoyant innocence of his previous records gone. 

"People thought we were gone. Finished," Springsteen told The Guardian in a 2010 interview.  "They just thought Born to Run had been a record company creation. We had to reprove our viability on a nightly basis, by playing, and it took many years. You had to be very committed...In a funny way, the lawsuit was not such a bad thing. Everything stopped and we had to build it up again in a different place."

There's no telling what Taylor Swift will do next, but she has a new record label and all of its marketing power behind her as well as a successful new album that isn't owned by Big Machine or even by her new label. Her next move should come from the recording studio, where she and her fans can have the final say. 

Bonus Tracks

Malcolm McLaren: A Brief Appreciation looks over the career of one of rock’s true characters. In many respects McLaren was an unheralded pioneer, recognizing the value of curating, mixing, and promoting music from across the planet in a way that seems natural today. There’s also a Spotify playlist highlighting McLaren’s work as an artist.

Read about two records by Dinah Washington. Recorded for the Mercury label, Dinah Jams and After Hours With Miss D are her jazziest albums as the singer cuts loose with a solid cast of jazz all-stars. You can hear both albums back to back in this Spotify playlist.

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Thanks, and have a great week.