Taylor Swift’s catalogue is littered with tales of the men who did her wrong. Teardrops on My Guitar, All Too Well, Dear John – the 29-year-old singer is used to being let down by the patriarchy. Somehow she always manages to shake it off. This time was no different.
On Sunday, Swift will receive the artist of the decade award at the American Music awards (AMAs) at the Microsoft Theater in Los Angeles. For a few days it seemed like she would not be able to play her older hits, caught in a contractual dispute with her former record label.
It was the kind of argument usually resolved behind closed doors by sober-suited lawyers boringly parsing contract and copyright law. Instead, #IStandWithTaylor became a trending topic on Twitter worldwide and Swift once again proved corporate America is no match for her talents. She may also, and not for the first time, have reshaped the music world – challenging who owns what in an industry still reeling from its transition to digital.
“This is stuff that never leaks out to the public,” said James Sammataro, a partner at law firm Pryor Cashman and one of the US’s top music lawyers. Contentious negotiations are nothing new in the music industry, he said. “But this is like negotiation in the Instagram age. Taylor is directing it. She is forcing this chess game to be played in public.”
The chess game involves control of Swift’s first six albums, put out by Big Machine Records, an independent Nashville-based music company that is home to artists including Sheryl Crow, Lady Antebellum and Rascal Flatts. Big Machine’s founder, Scott Borchetta, signed Swift when she was just 15 after discovering her performing in a cafe and helped guide her from country newcomer to global pop phenomenon. Swift has said she thought Borchetta regarded her “as the daughter he never had”.
Then, in 2019, Borchetta sold Big Machine for a reported $300m to Ithaca Holdings, a mini-conglomerate of media and tech companies owned by celebrity talent manager Scooter Braun, a man Swift considers a mortal enemy. Braun, who currently works with Justin Bieber and Ariana Grande, among numerous other entertainers, previously worked with Kanye West, whose infamous hijacking of her acceptance speech at the 2009 MTV Video Music awards has led to a decade-long feud.
Swift has accused Braun of bullying her and called the deal “my worst case scenario”. “This is what happens when you sign a deal at fifteen to someone for whom the term ‘loyalty’ is clearly just a contractual concept. And when that man says ‘Music has value’, he means its value is beholden to men who had no part in creating it,” she wrote on Tumblr. “Any time Scott Borchetta has heard the words ‘Scooter Braun’ escape my lips, it was when I was either crying or trying not to.”
As is standard practice in the music industry Swift’s masters – the first recordings from which all the later copies are made – stayed with Big Machine and are the main driver behind the deal. According to Variety, Swift’s catalogue accounted for 80% of Big Machine’s revenues. Swift controls the copyright, which should mean she is free to perform her songs as she pleases. Which brings us to the latest dilemma. Swift – who is now signed to Universal Music – has said she will re-record her old albums starting next year, offering fans a way to buy her music again on her terms after her deal with Big Machine expires.
According to Swift, Borchetta and Braun had told her she could not perform the works they currently own at the AMAs unless she dropped that plan. On top of that, Swift said the pair had told her she would not be allowed to use her old work in an upcoming Netflix documentary.
“Scott Borchetta told my team that they’ll allow me to use my music only if I do these things: If I agree not to re-record copycat versions of my songs next year (which is something I’m legally allowed to do and looking forward to) and also told me that I need to stop talking about him and Scooter Braun,” Swift wrote on social media. “The message being sent to me is very clear. Basically, be a good little girl and shut up. Or you’ll be punished.”
All this and more was shared with Swift’s 85 million-plus Twitter followers and made headlines around the world. Swift even called on Carlyle Group, one the world’s biggest and most powerful private equity firms and a minority investor in Ithaca, to help her out. Not the sort of public row this highly political firm, advised by former presidents and prime ministers, is used to.
Weighed down by the torrent of publicity and death threats, Braun and Borchetta denied gagging Swift and stated she was free to perform at the AMAs. Their initial statement, however, carefully skirted around admitting, or denying, whether they had stipulated she could not perform her old songs or mentioning the Netflix documentary. Big Machine and Ithaca did not return calls for comment.
For Sammataro, the AMA kerfuffle was a sideshow and legally Swift would have had a good case for playing her songs. The argument hides a bigger story, he said, one that may have a profound impact on artists in the years ahead. “People bluster and make demands for rights that they don’t always have,” he said. “I do think they have a very genuine concern about the re-recording of her masters.”
Historically music companies have restricted artists for a length of time – typically five years – from re-recording their works. “It sounds sinister but it’s really not. It’s a commonsense provision in that if I am investing money into your album, I need sufficient time to recoup my investment,” said Sammataro.
Swift is not the first to threaten to re-record her works. Prince and Def Leppard did so after arguing they were being unfairly compensated by their original labels. But it is unheard of move for an artists at her zenith. “You are essentially splitting dollars,” said Sammataro. “You don’t know how the streaming service, the radio station or even your fans are going to consume it. Will they listen to the master or the re-recorded version?”
In the past artists might not have taken this route because marketing and distributing the new versions themselves would have been prohibitively expensive. In the digital age, and with her fanbase, no such issues will hold Swift back. Re-recording a couple of hits might once have satisfied Swift but with relations so strained she may feel like dealing Big Machine a bigger blow.
It is not the first time that Swift has taken on the industry and won. Swift was one of the last artists to sign on to streaming services because she was still selling CDs. She forced Apple to pay artists for music played during users’ three-month free trial period and held her album Reputation off streaming services for three weeks to maximise physical sales and downloads. The Economist wondered whether she might be pop music’s Alexander the Great.
For Swift this latest dispute is clearly an issue of principle, but it is also a play for leverage as both sides wrestle with the tectonic shifts in the music market: the shift to digital and the arrival of ever more money in the music industry from private equity investors such as Carlyle.
Carlyle and groups like it are investing in music because they see long-term returns from owning catalogues like Swift’s and more widely from our continuing love of music. TPG Capital is an investor in Spotify, Blackstone owns Sesac Holdings and the Harry Fox Agency, two groups that disburse royalties. Abu Dhabi state investor Mubadala has a stake in EMI Music. Swift’s tweet specifically asked “for help from The Carlyle Group, who put up money for the sale of my music to these two men”. Following the message the company’s Twitter account and phone lines were inundated by Swift fans pressing them to intervene.
The shot across Carlyle’s bow will add pressure to negotiations if and when the two sides start discussing the Netflix deal and Swift’s re-recordings. Longer-term the idea that artists like Swift will seize control of their works may rattle those investors even more. Sammataro said he expected the masters contracts of major artists – once “pretty boilerplate” – will now be much more carefully lawyered.
Swift may have won this round but there will be more battles ahead. On Sunday she is expected to address the controversy head on. Swift is planning a “fierce show of female artistic strength and empowerment”, music industry sources told the New York Post.
“Her friends are all going to be pushing her message on the red carpet. Taylor’s going to play dirty with elegance and grace,” the source said. Whatever she plays, she will be playing to win.