How Taylor Swift Could Exact Revenge on Scooter Braun (Guest Column)

Taylor Swift iHeartRadio Music Awards - Getty - H 2019

Taylor Swift has a formidable reputation for subduing those who dare cross her: ex-boyfriends, pop competition and even industry giants like Apple. So when the 29-year-old star posted a lengthy Tumblr message June 30 after manager Scooter Braun finalized a $300 million-plus deal to acquire record label Big Machine — and the master recordings to her first six albums — the industry reflexively recoiled into a defensive posture in anticipation of the fallout. Swift's missive took aim at two music power brokers, Big Machine Label Group CEO Scott Borchetta and Braun.

Braun's winning bid for Swift's back catalog struck some as a supervillain move, including Swift herself, who characterized Braun's purchase as her "worst case scenario." From Swift's perspective: The guy she trusted to take her career this far (Borchetta) just sold all of her music to the guy she trusts the least (Braun) and who she fears will "dismantle" her musical legacy. Besides Swift's distaste for new ownership, are her concerns valid, and was there a deeper motive behind the post? Did she whip up a public relations maelstrom in an effort to force Braun to the bargaining table? To ensure that Braun serves as an honest custodian of her masters? To devalue Braun's purchase?

Regardless of whatever personal satisfaction Braun may feel from "owning" Swift, any rational investor looking for a return on a $300 million investment is more inclined to vigorously pursue win-win exploitations of Swift's catalog. However, suppose Braun was the villain that Swift accuses him of being: What could a nemesis in his position do to sabotage Swift's interests? In actuality, not much, as Swift still possesses some control.

As the songwriter (or co-writer) of most of her works, Swift maintains a publishing interest in the writer's share of her compositions and, by extension, an economic interest and consent right. Consequently, downloads, physical sales and digital streams benefit both Braun and Swift. If Braun sabotages these, he sabotages himself. Similarly, revenue generated from synchronization (or sync) licenses (for the use of Swift songs in ads, television and films) enrich both Swift and Braun so long as both consent to such use. There is also mutual benefit in radio play and live performances of the original works. Swift alone receives the direct financial benefit of her performances, but Braun indirectly benefits from the revitalization of back catalog songs, the broadening and deepening of a desirous audience, and the promotion of future consumption of Swift's earlier works.

Swift also could limit the use of her music to instances where the recording is original, such as in the movie Sing! where the animated character sang an original rendition of "Shake It Off." This use, known as a compulsory license, benefits Swift, not Braun; but compulsory licenses are not as lucrative as sync licenses. Also, she should be able to rerecord her works, as customary contracts limit rerecording restrictions to five years.

Of course, Swift also possesses the power to limit all her future concert performances to new works only, with the hope of diminishing the value of her back catalog and hurting Braun's ability to recoup his investment. Fraught with risk, this maneuver could alienate the very fans and promoters she needs to sell out stadiums, could cause only a negligible dip in Braun's revenue and could lessen Swift's own royalties. This ploy is exceedingly unlikely, as it will almost assuredly preclude Swift's next tour from achieving the record-breaking success of her Reputation tour, which sold more than 2 million tickets domestically and grossed $266.1 million.

This may be the beginning of some entrenchment against Braun because Swift is known for taking stands on principle and against her wallet. The artist did, after all, remove her works from Spotify for three years to protest the streamer's freemium model on the rationale that "valuable things should be paid for." Swift has also single-handedly effectuated meaningful change.

In 2015, she wrote an open letter to Apple CEO Tim Cook and withheld her album 1989, causing Apple to retreat from its decision to not pay artist royalties during Apple Music's three-month introductory trial period. In 2018, Swift leveraged the labels' frenzied courtship to ensure that Universal Music followed through on its rumored promise to share the proceeds of its Spotify stock with all of its artists on a "non-recoupable" basis, meaning the payments wouldn't count against their balances. In both instances, Swift effectuated industry-changing norms for the welfare of many, many creators. But this time, it is difficult to identify any virtue or principle that justifies impeding a win-win advancement of Braun's and Swift's aligned business interests.

James Sammataro is a veteran music lawyer and co-chair of Pryor Cashman's Media and Entertainment Group. Pryor Cashman associate Giovanna Marchese contributed to this column.

This story first appears in the July 10 issue of The Hollywood Reporter magazine. To receive the magazine, click here to subscribe.