From Portside Culture <[email protected]>
Subject Taylor Swift vs. Scooter Braun and the Imminent Rerecording War
Date November 25, 2019 3:08 AM
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[From the artist standpoint, the influx of private equity into the
music business raises the temperature as well. Swift may have hit an
industry nerve by pointing to how the Carlyle Group financed Brauns
acquisition of Big Machine.] [[link removed]]

PORTSIDE CULTURE

TAYLOR SWIFT VS. SCOOTER BRAUN AND THE IMMINENT RERECORDING WAR  
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Eriq Gardner
November 20, 2019
Hollywood Reporter
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_ From the artist standpoint, the influx of private equity into the
music business raises the temperature as well. Swift may have hit an
industry nerve by pointing to how the Carlyle Group financed Braun's
acquisition of Big Machine. _

, Gotham/GC Images; JB Lacroix/WireImage; Adobe Stock

 

In the streaming age, "boilerplate" contract provisions may be
outdated for artists who want to reclaim their older songs: "I see
broader blanket prohibitions coming."

Here's a prediction: A few years from now, Taylor Swift's Nov. 24
performance at the American Music Awards will be largely forgotten.
But the discussion about this performance will reverberate for far
longer than most observers expect.

The debate started with a Nov. 14 tweet from Swift, who called out
Scooter Braun and Scott Borchetta for allegedly restricting her from
performing old songs at the ABC event honoring her as Artist of the
Decade. According to Swift, the two men only would permit her to
perform "Shake It Off" and other early hits if she agreed not to later
rerecord copycat versions, as she's been threatening since Braun in
June acquired rights to her Big Machine recordings. Big Machine denied
such a move. It's conceivable each side was telling a version of the
truth.

While most have focused on whether Braun and Borchetta truly have the
ability to block Swift's performance, the thornier and somewhat
unresolved legal issue pertains to distribution of Swift's recorded
performances.

Consider this prospect: Swift sings at the AMAs, and producer Dick
Clark Productions subsequently releases both a live album of the event
and an archived stream. Swift then tells her 85 million Twitter
followers to please listen and watch these live versions of "Shake It
Off" rather than the original one that contributes money to Braun's
wallet. Since Swift owns the copyright to the composition (Big Machine
owns the masters), she'd financially benefit from doing this.

Braun and Borchetta may have seen Swift's AMA performance as a
backdoor route toward rerecording hits and taken the position that any
distribution of Swift's recorded appearance flouted Swift's contract.

Several lawyers consulted by _THR_ say this read of the dispute
makes sense. It's also supported by a statement put out by Big Machine
on Nov. 18 noting its agreement with Dick Clark Productions with
respect to post-show streams and rebroadcasts. "Recording artists do
not need label approval for live performances on television or any
other live media," read the statement. "Record label approval is only
needed for contracted artists' audio and visual recordings and in
determining how those works are distributed." (Dick Clark Productions
is a division of Valence Media, the parent company of _THR_.)

If the Swift/Big Machine controversy was the result of fear over how
her performance would be commercially exploited in the distribution
market, this points to a developing issue for the future relationship
between artists and record labels that will not simply end with the
AMAs. It's one that is born of technological shifts as much as egos.

Traditionally, a record deal limited an artist's ability to rerecord
for a finite amount of time. Five years was customary. That way, an
artist wouldn't immediately author copycat versions of songs to
recover a greater share of royalties. In reality, even if an artist
wished to rerecord, he or she needed hefty distribution and marketing
backing for it to make economic sense. As such, few in the industry
gave much thought to the rerecording provisions of the record deal.
Music attorney James Sammataro says the rerecording restriction until
now largely has been "boilerplate." Time to shake it off?

Nowadays, online platforms like Spotify and YouTube make it much
easier for artists — especially established ones — to deliver to
audiences. Stars like Swift can exploit social media to achieve
effective promotion as well. In other words, the ability to create
market substitutes may appear more threatening to record labels. In
the old days, many of these labels would have gladly accepted a TV
appearance from an artist as good promotion for old recordings. Not
anymore necessarily: "I see broader blanket prohibitions coming," says
Sammataro.

From the artist standpoint, the influx of private equity into the
music business raises the temperature as well. In her initial tweet,
Swift may have hit an industry nerve by pointing to how the Carlyle
Group financed Braun's acquisition of Big Machine. With big Wall
Street money comes big expectations. The potential of third parties
complicating the relationship between artist and record label is very
real.

The situation between Swift and Braun may be somewhat unique, but no
artist wants to lose control over his or her ability to perform older
hits. Once a record deal ends, artists would prefer to assert more
authority, not less. "People are learning from this," says attorney
Mark Jaffe. "This could become the impetus for making these contracts
more clear."

_This story first appeared in the Nov. 20 issue of The Hollywood
Reporter magazine. To receive the magazine, click here to subscribe.
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ERIQ GARDNER

[email protected] [[link removed]]

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