First of all, I have never studied intellectual property law, particularly US intellectual property law, and so I have dealt with this from a broad perspective as if it was set in the UK. Anyway, here goes...
If you haven't heard of the Taylor Swift drama with Scooter Braun - get up to date on pop culture. Swift signed a contract with Big Machine Records in 2004 at the age of 15 for, presumably, 6 records before the contract could be renewed. She left BMR after her sixth album, reputation, and signed with a new record company to release her seventh album, Lover. BMR retain ownership of her masters, and the company has since been sold to Scooter Braun, who isn't exactly Swift's friend, and Swift has publicly denounced Braun and his business ethics and behaviour, and tried to get her masters back.
This issue has a few legal implications in contract and intellectual property, and these will be dealt with in turn. What are Taylor Swift's options?
If you haven't heard of the Taylor Swift drama with Scooter Braun - get up to date on pop culture. Swift signed a contract with Big Machine Records in 2004 at the age of 15 for, presumably, 6 records before the contract could be renewed. She left BMR after her sixth album, reputation, and signed with a new record company to release her seventh album, Lover. BMR retain ownership of her masters, and the company has since been sold to Scooter Braun, who isn't exactly Swift's friend, and Swift has publicly denounced Braun and his business ethics and behaviour, and tried to get her masters back.
This issue has a few legal implications in contract and intellectual property, and these will be dealt with in turn. What are Taylor Swift's options?
Contract
Swift signed her contract when she was 15, below the age of majority in the UK, but you can sign contracts as a minor if they are beneficial to you [Sale of Goods Act s.3]. If the contract's terms are unreasonable, then a minor does not have to be held to them [De Francesco v Branum], and when Swift turned 18 she was given a legal opportunity to repudiate the contract within a reasonable time [Carnell v Harrison], but clearly she did not do this. In essence, the contract was validly made.
The contract was with Big Machine Records, presumably, but it is worth noting that you can sign a contract with a company as they have their own legal identity [Salomon].
Swift has claimed she has been bullied by Braun and others, so is there a possibility of getting out of her contract, and reclaiming her masters, on the grounds of breach or frustration of contract? As far as I know, Swift hasn't contended that she was mistreated while under her contract by Scott Borchetta (the owner of BMR), or any employee of BMR, and so she cannot sue for breach or frustration under this. Furthermore, you can only sue for breach if the defendant refuses or is unwilling to perform [Universal Cargo v Citati], if the defendant is unable to perform [Universal Cargo v Citati, again], or if there is notice of a fundamental breach [Decro-Wall v Practitioners in Marketing]. There are none of these in this case.
Speaking of Swift's mistreatment, as a side note, could she sue for a tort? If she wanted to claim a psychiatric damage, she must have developed a known medical condition [Hinz v Berry], and mere distress is not enough to constitute grounds for a tort. Defamation is perhaps a more favourable route, but again this requires evidence of serious harm [Defamation Act 2013, s.1(1)] and due to the massive success of the albums she recorded with BMR, I don't think it would be easy to argue this. The only exceptions to this rule is if whomever defamed her (Braun, for instance) claimed she was a criminal, or was unfit or incompetent to conduct her business [Defamation Act 1952, s.2]. I don't think it would be easy to contend that Swift is incompetent due to her massive commercial success, and I can't see that anyone made this contention, and so I don't think a defamation suit would work particularly well.
Can Swift re-record her work and re-release it? Yes. If there is contractual provision for this, and she claims there is, Swift is at liberty to begin re-recording her old songs in November 2020.
There was undoubtedly a massive inequality of bargaining power when the contract between Borchetta and Swift was signed - a growing corporation with massive potential led by an industry giant against a fifteen-year-old country singer. But while the UK Supreme Court is hesitant to deal with this issue, and step in to ensure equality between two parties in a contract, the European Court of Justice seems to be more receptive to this concept. This is, however, a developing area of the law, but, for now, freedom of contract reigns supreme, and so Swift was able to negotiate and enter into any contract she pleased, regardless of how favourable the terms were to her.
Intellectual property
Big Machine Records (BMR) owns the masters to Swift's recording. There is a concept in the law known as the 'right to integrity' that allows Swift to object to any derogatory treatment of her copyrighted work [CDPA, ss.80-83], but as Swift does not own the copyright to these masters, I don't see a way she can object to any derogatory treatment of them by Braun or any other party.
Under EU law, Swift should still have a right to some cut of the profits/revenue from any resale of her work, and so, as far as I can tell, she should still benefit financially from the sale of her masters to Braun, but I will be the first to admit I don't fully understand this concept [Dir 2004/84/EC].
Swift, as the author of her work, has 'first ownership' but she has transferred this to BMR, and BMR retains the recording rights of this work [CDPA, ss.185-188], and so she cannot re-record her own work until November 2020 according to her contract.
According to the doctrine of first ownership, Swift retains the copyright to her songs. She owns the lyrics, and she owns the notes - essentially everything but the masters. As such, she is indeed at liberty to re-record her songs without any copyright infringement of BMR's property.
I know this has been a long article, and I hope you enjoyed it. Contract and intellectual property tend to be fairly technical areas of the law, but let me know if there is anything I haven't answered or addressed.
In conclusion, I believe that Swift's only position is to wait until November 2020, and re-record her albums, and re-release them, ensuring that she, and only she, owns the masters. There is great debate around this concept - who owns art - and while I don't want to pass judgment, it appears to me that artists should retain the right to their own art, regardless of contracts with record companies, in order to protect the artistic integrity of their work, but let me know your own thoughts below...
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