Ownership of recordings is an area of contention between artists and labels, but experts say even a major star like Swift can’t do anything about a $300 million sale that includes her catalog.
As the music industry takes sides in the public war between Taylor Swift and Scooter Braun after he bought her former label and acquired her catalog, legal experts are in agreement: The artist likely doesn't have grounds for any lawsuit.
Swift on Sunday sparked an Internet frenzy over artists' rights after it was announced that a company fronted by Braun would pay $300 million for Big Machine Label Group, which owns the master recordings for six Swift albums going back to when she was 15 years old. In a lengthy Tumblr post, she claimed she was blindsided by the news and wasn't given the opportunity to buy her masters, adding that Braun has bullied her for years and his owning her work is her "worst case scenario."
Meanwhile, Braun's wife Yael Cohen and Big Machine CEO Scott Borchetta defended the deal, with Borchetta claiming he sent Swift a text before the announcement and her dad could have learned about the sale during a shareholders call last week because he owns a stake in the company. Borchetta also said the last deal memo he sent to Swift, which he posted a partial screenshot of online, would have given the artist ownership of everything she had created — and she rejected the deal in favor of moving her business to Universal Music Group. Swift is represented by veteran Beverly Hills attorney Don Passman, who on Tuesday sent The Hollywood Reporter a statement about that aspect of the dispute: “Scott Borchetta never gave Taylor Swift an opportunity to purchase her masters, or the label, outright with a check in the way he is now apparently doing for others.”
Whichever version of the story is most accurate doesn't much matter in terms of Swift's legal options, according to music attorneys consulted by The Hollywood Reporter. The bottom line: this is a personal issue, not a legal one.
"She has no legal recourse," says music specialist Howard King, who represents artists including Kanye West (an on-and-off Braun client), Pharrell Williams and Avenged Sevenfold. "The masters are the record company’s property. There's nothing in a contract that says they can’t sell it to another company. In fact, it happens all the time. There’s no key man clause in these recording agreements."
Nashville-based entertainment and music lawyer Derek Crownover agrees it's unlikely Swift would sue, especially since she's already left the label. "The devil is in the details," he says. "But from the satellite view, I don’t see any legal ramifications that could come of this, unless there were restrictions on the sale of the masters to third parties." Theoretically, he says, such an agreement could contain a right to match an offer for the masters — but that's uncommon.
James Sammataro, who represents both artists and companies in the music industry, says there may be a confidentiality provision that could have been breached when Borchetta posted the proposed deal terms online, but it's just as likely that he could argue Swift breached it first by posting on Tumblr. Still, he says, "I don't think it's going to result in litigation of any sort."
The angst artists feel over not owning their masters certainly isn't new. Music royalty like Prince, Jay-Z and Janet Jackson have publicly complained about not owning the physical manifestation of their work. (Those three artists successfully gained control.) But even before Swift's online missive, the topic has recently been in the spotlight because of a New York Times Magazine expose titled "The Day the Music Burned." The June 11 feature about the 2008 Universal Studios fire brought to light for the first time exactly how many master recordings were destroyed when the vault they were stored was swept up in the blaze. Universal Music Group and NBCUniversal reached a settlement in 2013, but a fresh round of litigation hit UMG last month. A $100 million class action lawsuit was filed by the estates of Tom Petty and Tupac Shakur, bands Soundgarden and Hole and Grammy-winning artist Steve Earle. (King's firm is representing plaintiffs, alongside McPherson LLP and Susman Godfrey.)
As for Swift, she could offer to write Braun a check, but King questions why she'd spend that kind of money when she owns everything she makes from here on out and has a highly-anticipated album due out later this summer. (She could also refuse to play her old music in live shows, thus diminishing the value of the songs, assuming her fans won't freak out.) King suspects the situation will diffuse as the news cycle shifts. "This too shall pass," he says. "Her new album will be a huge success, and she’ll get far more of the profits than she used to get."
Sammataro also notes that Swift will still have some control over certain exploitations of her masters that require permission from the owner of the underlying composition. For example, a film studio can't license "Shake It Off" for a movie without the green light from both Braun and Swift. And public pressure arising from this situation might make Braun think twice about exploiting her work in ways she wouldn't be happy with, even if he's within his rights to do so.
"Any time Taylor brings attention to an issue it gets magnified," says Sammataro, noting how Swift successfully nudged Apple in 2015 to change how it pays for music. "She has a very loud megaphone and she’s not afraid to use it. She’s had great success in effectuating change."
Crownover says the most significant takeaway from this whole mess isn't a legal lesson for artists, but the $300 million boost for Nashville — a city has long been overlooked by investors in favor of the flashier markets like New York and Los Angeles. "It’s big business now," he says. "It’s not just country records that top out at a million in sales. It’s Taylor Swift. It's The Black Keys. It's becoming a genre-less town, and the private equity firms are making deals here where they never did before."
This article was originally published by The Hollywood Reporter.