Her few words echoed around the world within minutes: Asked in a preview of her forthcoming “CBS This Morning” interview whether she might re-record her master recordings from her Big Machine, which are now owned and controlled by her nemesis, Justin Bieber manager Scooter Braun, Taylor Swift said, “Oh yeah.”
Asked whether she plans to: “Oh, absolutely.”
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No further details were provided, but the remarks open up a plethora of legal questions about when and how Swift could re-record her catalog, and thus snatch income from Big Machine by making sure that her new versions, and not the ones owned by her former label, are the ones played by fans and used in any number of commercial ventures, such as advertisements, TV shows, movies, games and other uses.
[UPDATE: After this article published, Swift revealed on “Good Morning America” Thursday that her contract with Big Machine allows her to re-record songs from her first five albums beginning in November of next year. “My contract says starting from November 2020 I can start re-recording albums 1-5,” she said.”]
Prince and Def Leppard are two artists who successfully went that route in the past when they felt they were being unfairly compensated by their original labels, but their contracts dated back to the 1970s. Record companies quickly got wise to the practice and wrote provisions into their standard contracts setting a time period — typically two years after an album’s terms expire or five years after the release of the recording — before those same songs, which include live versions, could be released.
Without direct knowledge of Swift’s contract, unnamed sources are batting around both sides of the coin. On one side, the assertion that Swift would be unable to re-record songs from her catalog until five years from 2018, when her deal with Big Machine officially expired, and even then the process would be prohibitively complicated. For example, she may not have access to the album’s original artwork or even the names of the songs.
On the flip side, an insider tells Variety that Swift believes she can re-record her classics and that a smart lawyer — Swift’s is Donald Passman, one of the top attorneys in the industry and the man who literally wrote the book on the music industry — would not allow a severe re-record restriction in their artist’s contract. This source suggests that any album more than five years old is fair game.
Laurie Soriano, a top music industry attorney and partner in the firm King, Holmes, Paterno & Soriano, who has no involvement in the Swift contract, says she doesn’t see any reason why Swift couldn’t move ahead with new versions of her songs and points to the practice by legacy artists to do the same. Once an artist’s deal with their label expires, that artist has “a contractural right to record for a new label and for [both entities] to make money off those recordings,” she tells Variety. “Standard language is two years after the end of the term or five years after the release of the recording in question.”
However, some contracts do have what is called an original production or “sound alike” clause, which prohibits a newly recorded version from being too similar to the original — if that’s the case with her contract, a Swift-sung reggaeton version of “Mean” or a heavy metal take on “Love Story” could have moved closer to reality. But Soriano says it’s “an unusual provision” for a label to make seeing as interest in the catalogs often spurs consumption of both the original and new versions.
To be sure, Swift has made her fans more than aware of her feelings about Braun’s acquisition of her masters, and it’s likely that a large percentage of them will follow her to whichever versions of her songs she asks them to. Then again, others may prefer the original. Any such confusion may ultimately have an adverse effect on perception of the worth of the Big Machine catalog, potentially devaluing the assets.
On the other hand, that’s a question of the future. Right now, rights to master recording are seen as incredibly valuable one-of-a-kind works of art, not unlike that of a famous painter. If Braun were to sell today, at multiples of 22x to 25x, he’d be looking at a $1 billion valuation for a company he and backers Carlyle Group spent $300 million to buy.
If Swift’s battle history is any indication, this one is far from over…