This Is the Best Way for Artists to Fight Back Against Record Labels

On Sunday afternoon, Taylor Swift posted an open letter on her personal Tumblr account addressing the sale of Big Machine Records—her previous record label and the owner of the master recordings of her back catalogue—to Scooter Braun. She accused Braun of repeatedly bullying her in public and called the purchase of her masters an attempt between the owner of Big Machine and Braun to “[control] a woman who didn’t want to be associated with them.” Swift’s letter also discusses the importance for an artist to maintain ownership over their master recordings and their work—“[t]his is what happens when you sign a deal at fifteen to someone for whom the term ‘loyalty’ is clearly just a contractual concept. And when that man says ‘Music has value’, he means its value is beholden to men who had no part in creating it.”

In part, she also indicated that she wanted to share her story so that young artists would be incensed to “learn about how to better protect themselves in a negotiation." Swift ended the letter by saying “You deserve to own the art you make.” After her post, several artists posted messages of support on social media—Sky Ferreira posted a long response on her instagram story that indicated “…every contract I ever signed has always been set up to take advantage of me/my work in some way,” and urged artists not to “let people pressure you into giving away your rights.”

In music copyright, each song can implicate several rights holders, who are not all treated exactly the same. A musical recording encompasses two separate copyright works—one is the composition, and the other is the master recording. As Swift identifies, master recordings are traditionally owned by record labels forever once a contract is signed, while compositions typically remain the property of writers (or their publishing companies). Contracts can designate specific royalties associated with continued exploitation of the works, but those royalties are far from standardized by law and thus up for negotiation. Although what Swift is suggesting to young artists does point out an unintuitive application of copyright law—an artist who performs but does not write a song is left with little to own—her advice is not easily applied to most contractual negotiations for young artists.

Negotiations often hinge on what leverage either party can bring to the table, and it is no surprise that young, new artists often have little leverage when approached by a record company that has the ability to make or break their careers. 21 Savage and SZA were able to build their personal brands so effectively prior to signing a deal that they did manage to negotiate ownership of their masters, but the overwhelming majority of artists do not. Although Swift now has a deal that allows her to own her masters, she is an established top-tier musician and her leverage in a negotiation is undeniable.

The failure of a musical performer to own their performance—or, their works in this context—can mean that a creator cedes all control over their work if it is sold. In European countries, more robust moral rights regimes permit artists to maintain some control over their work even if the copyright is owned by another party. For example, moral rights may include the right of withdrawal, wherein the artist can take their work out of circulation, and the right to protect the “integrity” of the work to prevent modifications. The mere presence of these rights not only provides an artist with some recourse in a troubling situation, but can provide an artist with leverage in negotiations over ownership as well. The United States has implemented a narrow version of moral rights to certain works of visual art like paintings and sculptures, but there is no moral right statute for musical works.

There are, however, ways that artists in other contexts have been able to push back on unfavorable ownership terms—among them, by bringing collective bargaining actions. Collective bargaining can consolidate power and act as a powerful tool to standardize more fair contractual terms. For example, in order to gain leverage for actors in negotiations movie and television studios, the Screen Actors Guild fought for standardized contracts that provide working wages and re-use fees, even for the most junior of its members. Through strength in numbers, artists might be able to standardize more favorable contractual terms such as a reversion of rights after a period of time.

In order to successfully bargain as a unit, musicians would have to effectively organize and negotiate, all the while avoiding antitrust scrutiny. As for Swift’s commitment to bargaining on behalf of other artists, she is undoubtedly paving the way for collective action. Her current agreement with Universal Music Group demonstrates an attempt at leveling the playing field; in November of last year she announced on Tumblr that as part of a new contract with UMG, “any sale of their Spotify shares [would] result in a distribution of money to their artists, non-recoupable.” In 2015, she successfully petitioned Apple to pay all artists fees for the use of their music on free trials of Apple Music. Taylor’s attention to the shortcomings of label deals and ownership will certainly shine a light on the issue and perhaps even encourage collective action.

Jessica Meiselman is a lawyer and writer based in New York. Follow her on Twitter.