(Bloomberg) -- When Taylor Swift is named the artist of the decade at the American Music Awards later this month, she may not be able to perform the songs that earned her the prize in the first place.
Swift claims her old record label, Big Machine, is blocking her from performing her biggest hits in public, using an obscure provision in most record contracts that prevents artists from rerecording their music. The dispute has rallied millions of Swift’s fans to her side, and opened a debate about the nature of rerecording provisions.
Generally speaking, the rules aren’t used to prevent artists from performing their own songs.
“It’s never used like that,” said John Seay, an Atlanta-based attorney who represents acts including pop group Of Montreal and rapper Bloody Jay.
Record labels created the provision to prevent artists from rerecording songs they made for one label and then selling them -- without sharing proceeds with the initial label. Labels don’t usually use them to block artists from performing in public because such appearances bring new attention to those songs, thus increasing the value of the original recordings.
In Swift’s case, she is planning on rerecording her songs in the studio, but only when the clause preventing her from doing so expires next year.
Whether Big Machine can block Swift from performing the old songs in the meantime is unclear. “Despite all the coverage of this, I’m not seeing what mechanism a record label can use to stop an artist from performing her songs live if she is not using the masters,” Matt Pincus, a music adviser to LionTree LLC, posted on Twitter.
But Seay says Big Machine may have a case. “Typically, it says you can’t rerecord those for the purpose of making records for anyone else. But records is really broadly defined,” he said.
Swift is doing a documentary with Netflix Inc., and it seems clear that Big Machine has the right to block her old songs from being used in that.
But when it comes to the awards show, is a televised performance a rerecording — or just the equivalent of a concert?
Big Machine has disputed Swift’s version of events, saying that it isn’t stopping her from performing. But it’s not clear if that means she can perform all her songs or just the new ones, which Big Machine doesn’t have the rights to. A representative for the label didn’t respond to a question on that topic.
Instead, Big Machine has framed the dispute around money that Swift owes the label.
“The truth is, Taylor has admitted to contractually owing millions of dollars and multiple assets to our company, which is responsible for 120 hardworking employees who helped build her career,” the label said in a statement.
Whether or not Big Machine has the right to block Swift, her public plea for support has escalated her fight with her old record label. Swift recorded her first six albums for Big Machine, including “1989,” the biggest record of her career.
Earlier this year, Swift criticized Big Machine just hours after the company announced it had been acquired by Ithaca Holdings, a company affiliated with music manager Scooter Braun. Braun represents Ariana Grande and Justin Bieber, and is by most measures one of the most powerful figures in the music business. Swift accused Braun and Scott Borchetta, Big Machine’s founder, of blocking her efforts to buy back her music, claims Borchetta rejected.
Swift’s fight with Big Machine has reignited a decades-old debate in music. Most artists don’t own the rights to their recordings. For decades, labels have signed young artists before they were famous, providing upfront capital to support the recording of new music.
When the music is released, the label promotes it, tapping relationships with radio stations, record stores and, now, streaming services. The label recoups its investment and then splits the resulting profits, if there are any, with the musicians.
A handful of artists have protested this system, including Prince, who compared it to slavery. While the internet has made it easier for artists to replicate many label functions on their own, especially promotion, most artists still sign to record labels. Swift, for example, inked a new deal last year with Republic Records, a division of Universal Music Group, the world’s largest music company.
But many established artists can demand ownership of their songs, and Swift has those rights under her current deal. Not content to own her future music, Swift has said she will rerecord her old songs as soon as her contract allows it, potentially undermining the value of Big Machine’s best assets.
When she’s free to rerecord those songs, that will open up new questions. Will radio stations and streaming services play the old versions of her hits or the new ones? And what will listeners prefer?
But given the intensity of the dispute, the fight with her old label is likely to come to a head long before that.
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