Experts Debate Taylor Swift's Options to Rerecord All Her Old Songs
"Ninety-nine percent of artists signed to labels don't own their own masters! It's just the way it is," one legal analyst says.
Taylor Swift has made a career from speaking her mind and making her feelings crystal clear. That includes her widely read Tumblr earlier this month decrying the purchase of her former label, Big Machine, by Scooter Braun's Ithaca Holdings. Swift called it a "worst case scenario," that, according to the singer, deprived her of the chance to take control of the masters to her first six albums.
But, in a cunning suggestion, fellow "Miss Independent" Kelly Clarkson tweeted over the weekend that Taylor could take back some real estate in the skirmish by going back to "re-record all the songs that U don't own the masters on exactly how U did them but put brand new art & some kind of incentive so fans will no longer buy the old versions." Clarkson promised she'd buy all the Taylor 2.0 songs just to "prove a point."
But could Taylor do that? And would it even make financial sense?
It wouldn't be the first time an artist had tried that tactic in a battle over masters. Both Def Leppard and JoJo went down that road, with the English rockers rerecording their hits "Pour Some Sugar on Me," "Hysteria" and "Rock of Ages" in 2012 in an effort to wrestle "control of our career back" from Universal Music Group, which singer Joe Elliott said at the time was a negotiating tactic with their former label to obtain a new compensation agreement with more favorable terms. The group's redo of "Hysteria" has since sold 121,000 downloads, "Rock of Ages" has moved 207,000 and "Sugar" has sold 785,000 to date, according to Nielsen Music. (The band didn't allow their UMG catalog on digital at the time of the rerecordings, which explains the gaudy numbers for "Sugar," but their full back catalog is now on streaming services and the rerecords are no longer available.)
Pop singer-songwriter JoJo rerecorded her debut album and 2006's The High Road in 2018 after a protracted battle with her former label, the infamously opaque Blackground Records, which had not made the self-titled work available on streaming services; the albums have sold a combined 2,000 copies and generated 23.2 million on-demand audio streams for their songs in the U.S., through July 11, according to Nielsen Music. At one point, Prince threatened to rerecord his entire back catalog, but settled for releasing 1999: The New Master, a seven-track EP of remixes of the title track, which hit No. 150 on the Billboard 200 with total sales to date of 62,000 copies, according to Nielsen Music (all figures accurate as of July 11, 2019).
Billboard reached out to music industry lawyers (none of whom are affiliated with either side in the Swift issue and were speaking in general legal terms) to find out if the singer could, or should, hit reset on her old hits as a potential next chess move in her dispute with Braun and her former Big Machine boss Scott Borchetta. Swift's attorney, Don Passman, declined to comment, and spokespeople for Big Machine and Ithaca Holdings had not returned requests for comment at press time.
"You become a competitor of your record label if you rerecord and own new master recordings from the same compositions," Brian Caplan, an intellectual property lawyer at the New York firm Reitler Kailas & Rosenblatt LLC, tells Billboard. "If you have the weight of a Taylor Swift, that’s one thing, because you might be able to convince a portion of the community to come to you for older [songs]. But a lot of people don't have the wherewithal to start a business and become a competitor with their old label,... [however] you will cut into income streams from the [old] label, you will make more money because you’ll own it and won’t have to give a piece to the label that they're entitled to under the old contract."
Caplan says that standard recording agreements have a rerecording restriction that prohibits an artist from remaking a song that was previously delivered to the record company (sometimes even ones that were not released during the contract's duration) for a set period after the deal expires, a term that typically runs three to five years. But he's definitely been in situations where clients have threatened to rerecord songs or albums as part of a negotiation tactic to get better terms when they felt their original royalty rate was too low.
Sometimes those talks include offering to extend the rerecording restriction in their original contract by a few years in exchange for higher royalty payments. "But the Taylor Swift situation is not of that ilk, it's more, 'I can't stand you and I don't want my name associated with you,' for various reasons that only she knows," Caplan says, noting that, either way, there's no way to prohibit your label from exploiting your old masters.
Like Caplan, Fox Rothschild LLP partner and senior music lawyer Ken Abdo doesn't have first-hand knowledge of the contract signed by Swift when she began her career at age 15 with Big Machine in 2006. But he tells Billboard he'd be "shocked" if that kind of three- to five-year restriction was not in that contract, or if she was able to "renegotiate that rerecord restriction entirely away." Because, after all, the primary asset that a record company has is the intellectual property that an artist creates for them: the master recording.
Abdo, a self-described artist advocate who has worked with groups ranging from Hanson and Kool and the Gang to the estate of rock progenitor Bill Haley, says he's represented a number of one-hit artists who have rerecorded their signature tunes to license them on a snippet basis for commercial use. The idea of rerecording an entire catalog to compete with the original recordings, however, is not something anyone of Swift's stature has ever done, as far as he knows.
"It's impractical and super expensive, but if you do it, then what?" he says. "Other than license them, if you stream all of them that would create confusion in the market and be disruptive and probably not worth it economically. On principle, maybe. But if you spent millions in this streaming economy to put it out as streams and get fractions of pennies while already competing with the originals, I don't believe it would be a prudent business decision."
Music attorney Brian McPherson — who represents acts such as Fleet Foxes and Father John Misty — agrees with Abdo that the best-case scenario for an artist is that they may be able to renegotiate their contract in such a way that they limit the rerecording restriction and/or shorten its length. He said the situation when it comes to rerecording has actually gotten worse for artists in an era when streaming and syncs are increasingly more vital than physical record sales.
The old rule prohibited artists from rerecording a song that appeared on an album — but sometimes even if it didn't — for five years after it was recorded, and then for anywhere from two to five years post-term, depending on how much negotiating power you have. A famous example was when The Everly Brothers jumped from Cadence Records to Warner Bros., where they promptly rerecorded all their biggest hits for a smash Very Best album released in 1964.
"It didn't take long or labels to catch on to that, so now beyond that, some labels are not just saying you can't rerecord stuff that appeared on records, but you can't rerecord stuff for sync, either, which is an area people have enjoyed a lot of success rerecording their songs in," McPherson says, adding that it was "sweet of Clarkson to suggest Swift take that tactic, but that he would find it hard to believe that Swift's nearly 15-year-old contract, likely renegotiated over time, doesn't have a "significant" rerecording clause. (McPherson also points out that labels have upped the ante lately, sometimes putting in clauses that deny an artist the right to rerecord a track in their own "style or feel," ensuring that any remake will not use the same arrangement, or sound like the original.)
"A lot of us are Monday morning quarterbacks on these contract issues, but 99 percent of artists signed to labels don't own their own masters! It's just the way it is," he notes. The rerecording language in most contracts is fairly boilerplate, and as a fierce artist advocate, McPherson says it's always something a lawyer tries to make as favorable as possible during negotiations.
"I'll say two things: 'It has to be released by you during the term' — this master with this song — so if I record a song during the term but you don't release it, I should be able to rerecord that," he explains. "That helps you if you get dropped and you don't release your album; if you can't negotiate a buy-back of your masters, you can just go recut it. And you just try to make the post-term period as short as possible."
This story first appeared on Billboard.com.