What’s Going on with @taylorswift13 and Big Machine–with Update

You’ve probably seen reports of Taylor Swift’s allegation that Big Machine or its assignees are blocking her from performing what appears to be a medley of her old hits (from the Big Machine catalog famously sold to an entity associated with manager Scooter Braun).

According to Rolling Stone:

The spat between Taylor Swift, her former label boss Scott Borchetta, and music mogul Scooter Braun has devolved into a sturm-und-drang public saga. Months after Swift panned Braun’s $300-million takeover of Borchetta’s Big Machine Label Group, the singer is saying that the two executives are preventing her from performing her older hits at the American Music Awards — but the validity of both the claim and the alleged action are murky.

Actually maybe not that murky.

Here’s a pretty good artist friendly rerecording restriction:

After the Term, Artist shall not, prior to the later of the following dates, perform for any person, firm, or corporation other than us, for the purpose of making Phonograph Records or Master Recordings, any Selection which was recorded hereunder or under any other agreement between you or your affiliates and us or our affiliates for which we or our affiliates paid an advance against royalties hereunder or under such other agreement (whether or not in respect to Recording Costs) or which is released by us for commercial sale to the general public in the United States, Canada or the United Kingdom no later than six (6) months after the expiration of the Term; provided that if any such Selection was recorded in a Master hereunder and we are otherwise entitled to release such Master in Phonograph Record form, prior to performing such Selection for any third party for the purpose of making Phonograph Records, you shall notify us of our failure to have so released such Master and we shall have six (6) months after the date of such notice to so release such Master, upon which release the Selection embodied in that Master shall be subject to the provisions of this subparagraph and; further provided that if we fail to so release such Master within that six (6) month period, you shall have the right to perform that Selection for any such third party irrespective of the provisions of this subparagraph:  (i) the date five (5) years subsequent to the last date on which a Master Recording embodying that Selection was delivered to us hereunder (but a Master or arrangement thereof included on a “Greatest Hits” or “Best of” LP shall be deemed to have been last recorded when such Master was originally recorded hereunder or under any Prior Agreement; or (ii) the date two (2) years subsequent to the date on which the Term hereof ended.

But here’s another clause relating to TV performances that needs to be carved out from the general rerecording restriction:

If Artist intends to render musical performances on network, cable or other form of television, then Artist shall notify us of Artist’s desire and intention to commence negotiations with respect to any such performance and Label or Label’s affiliate shall have the right, at Label’s election, at any time within five (5) business days after Label’s receipt of that notice from you, to cause Artist (or any entity furnishing Artist services) immediately to enter into good faith negotiations with Label, or our affiliate, concerning the terms and conditions of those performances.  If for any reason Label or Label’s affiliate and Artist (or that entity furnishing Artist services) are unable to agree on the terms and conditions pursuant to which Artist shall render those performances within a twenty (20) day period, then Artist (or that entity furnishing Artist services) shall have the right to enter into negotiations for those performances with any third party.  The foregoing provisions of this subparagraph shall apply to programs primarily or substantially featuring Artist as opposed to programs wherein Artist merely renders a so‑called “guest” performance. Nothing set forth in this Contract shall entitle any third party to exploit Audio-Visual Records embodying the musical performances of Artist.

That TV restriction probably covers Taylor Swift’s AMA performance if it applies after the term expires like a re-recording restriction.  Even if it doesn’t, there’s that last sentence.  “Audio Visual Records” are usually defined to include the kinds of activities that television shows typically want to engage in to exploit and promote their shows, even if there is no permanent download or stored copy sold for streaming.

So if the AMAs are asking for those broad video rights (for example Facebook live streaming, cached streaming, YouTube, etc.), it’s entirely possible that Big Machine has an absolute blocking right on those exploitation channels which would have nothing to do with the re-recording restriction specifically (although the re-record prohibition term might also be implicated).

Something says to me that Taylor Swift is building an evidentiary record for one of the great artist rights lawsuits of all time in the future, but maybe not.

UPDATE:  The Hollywood Reporter has a press release from Taylor Swift’s label that pretty much confirms the interpretation of her re-record restriction that I suspected in this post:

After Taylor Swift claimed last week that Big Machine founder Scott Borchetta and Scooter Braun were preventing her from performing her past hits during the 2019 American Music Awards, Swift’s former record label released a statement Monday that said it had “agreed to grant all licenses of their artists’ performances” on various platforms.

“The Big Machine Label Group informed Dick Clark Productions today that they have agreed to grant all licenses of their artists’ performances to stream post show and for re-broadcast on mutually approved platforms,” the statement reads. “It should be noted that recording artists do not need label approval for live performances on television of 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.”

So a drafting tip–this restriction on televised performances should, at best, only apply during the term of the artist’s exclusive recording agreement.  Those three little words will save a bunch of agita after the term.  If you can’t get that, then another way to get at it is to say the restriction only applies if the artist is recording more than a fixed number of songs that were recorded during the term say three or four.  This is the kind of thing you can get when you are negotiating the artist’s deal going in and that you’ll never get going out.

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