November 2020 Update: Although 2020 crushed Taylor Swift’s Lover Fest summer world tour, she is still walking away from this year with a new sound from her highly praised album Folklore, and with confirmed plans to re-record the songs from her first five albums. On November 22, Swift virtually accepted her third consecutive artist of the year award at the 2020 American Music Awards where she revealed that she was not there to receive her award in-person because she was busy re-recording.
Earlier this month, Swift wrote on Twitter that she had learned her masters were sold for the second time to a private equity holding company called Shamrock Holdings. She declined the offer to work with them when she discovered that Scooter Braun of Big Machine would still benefit from the deal, stating that she is going forward with her re-recording schedule.
Originally posted November 2019: Taylor Swift capped off her domination of the 2010s by being honored as Artist of the Decade at the American Music Awards and Woman of the Decade by Billboard. From 2009 to 2019, Swift crossed over from a country star to a preeminent figure in pop music. But even with the massive clout she has achieved, Swift is still fighting to gain control of her music and using her platform to help fellow artists avoid a similar fate.
Swift signed with Big Machine Records in 2005 as a teenager and produced her first six albums under their label. She ended her contract with Big Machine in 2018 and signed with Universal Music Group where she produced her seventh album, Lover. In 2019, Ithaca Holdings bought Big Machine and inherited the masters to Swift’s six albums. In order to regain ownership of her music, Swift will re-record her first five albums when the contractual constraint is lifted in November 2020. (While re-recordings are generally an exercise in diminishing returns, if anybody can buck that trend, it’s Taylor Swift). She voiced her discouragement with Big Machine in a tweet leading up to her aforementioned crowning moments: her performance at the American Music Awards and in her acceptance speech as Billboard’s Woman of the Decade.
“On the surface it does look unfair,” says Don Gorder, chair and founder of the Music Business/Management Department at Berklee and instructor of the Legal Aspects of the Music Industry course at Berklee Online. “But when you dig down a little bit deeper, you realize that there’s a little bit more to it than that. There is a legal, contractual issue here, and the law is on the side of Big Machine, whether it seems right or not.”
Tonya Butler, a former entertainment attorney and record label executive and current Berklee Online course author, says that when entering a traditional record agreement, you are essentially a worker for hire. This means that you are commissioned to record an album for the label and the label owns the rights to those songs for a certain number of years. The point of this is for the record label to earn the money back on their initial investment on an artist. While Butler agrees that the law is on the side of Big Machine, she says Swift is raising awareness for other artists about the long-term ramifications of record contracts.
“People are looking at it as if she might be selfish or narcissistic: I actually disagree with that,” says Butler, who is also Assistant Chair of the Music Business/Management Department at Berklee College of Music. “I think she’s bringing issues to the forefront that most artists presume to be standard and that may not affect them initially, but could affect them if they become famous. Even if very few artists become as famous as a Taylor Swift, it’s the kind of thing that you really need to prepare for and recognize what you’re getting into.”
Butler and Gorder have some tips to keep in mind if you’re signing a record contract:
1. Have an Attorney Present
Butler and Gorder are firm that legal representation is a must when it comes to signing a record agreement. If you can’t afford a lawyer and you don’t understand the ramifications of the record agreement, then you shouldn’t be entering into that agreement. Butler says do whatever you need to do to make sure that your rights are protected. This can mean you’ll need a bit more money, whether you need to (responsibly) take out a loan or drive an Uber. Gorder says an artist protecting themselves is in the best interest of the record company and the musician.
“Most record labels want you to have an attorney representing you, because they don’t want their artists coming back and saying, ‘we didn’t really understand what we were getting into,’” says Gorder.
Generally, record labels are going to start out offering a deal that is most advantageous to themselves and it’s up to the artist’s attorney to negotiate better terms. That’s because the record labels do everything they can to mitigate the risk of signing a new artist, which can be an investment worth thousands to millions of dollars.
“Labels are taking the risk that the recorded music is going to do well in the marketplace and they’re going to make their money back,” says Gorder. “They minimize that risk by offering as low royalty rates as they can get away with and low advances. It’s up to the artist’s attorney to come back and say, ‘No, it needs to be more than this.’”
2. All Terms Are up for Negotiation
Butler says that her one piece of advice for upcoming artists would be that all terms of a record contract are up for negotiation, with the assistance of your lawyer of course. Whether a record company will be receptive of the negotiation depends on your leverage as an artist, but you can always try.
“Depending on your amount of clout, there are some things that are coming out of the contract and some things that aren’t, but that doesn’t mean that they’re not negotiable as far as their duration is concerned,” says Butler.
Proving your leverage as an artist is a lot easier now with data from social media, music streaming sites, YouTube, and ticket sales tracking.
“With the advantage of having all of that data in front of them, the labels are able to find and sign bands that are already showing a pretty strong following,” says Gorder. “That’s giving these bands more leverage when they sign these deals.”
3. Anticipate Success
Butler advises all of her students to go into a record contract negotiation anticipating success. Yes, it’s great to have faith and confidence in yourself, but it will also allow you to imagine how the deal is going to impact you at your most successful state.
“Go into a situation expecting to become Taylor Swift or Beyoncé or whomever,” says Butler. “You will look at the terms of that contract very differently then if you enter it thinking you’re always going to be where you are today.”