Lawyers often say that bad facts make bad law – meaning that unusual or unlikely details of a case can shape precedent in unpredictable ways. But bad facts can also make for bad contracts, to judge by the contractual restrictions on re-recording that major labels may be adopting in the wake of the success of Taylor Swift‘s “Taylor’s Version” of her albums.
Re-recording restrictions, a common contractual provision that has been part of record deals for decades, are intended as a kind of post-term noncompete. Their understandable economic purpose is to stop an artist from re-recording songs released under a contract that has run its course in order to benefit a subsequent label – and let the subsequent recording compete with the original without a comparable investment. Under that logic, the reasonable duration of a re-recording restriction would be a few years, as was the practice before the “Taylor’s Version” releases came out. It’s harder to justify locking up artists for a protracted period that might be longer than the duration of the original recording agreement.
That duration could be limited, too, by a potential legal challenge. Both the federal government and many states restrict the enforceability of noncompete clauses in employment agreements, particularly when they limit economic freedom. (Examples include California Business and Professions Code Section 16600, and the recently passed New York Senate Bill S3100A, which New York governor Kathy Hochul is expected to sign.) Next year, the Federal Trade Commission will vote on banning noncompete clauses in employment agreements altogether. Labels often say that recording artists aren’t employees, but that wouldn’t necessarily put these kinds of restrictions above the fray – especially if they last longer than seems reasonable.
Few artists re-record anything, and those who do usually only revisit one or a few hits, maybe their biggest album at most, and that’s more likely if there’s a contractual dispute. It’s unprecedented for a significant artist to re-record his or her entire catalog, repackage each album and promote their rerelease – particularly when the original hit releases are still readily available. That requires motivation. Or, in Swift’s case, perhaps, frustration. But in a “Taylor’s Version” world, who wants to be the one who let it happen again?
Without getting into the he-said-she-said of the sale of Big Machine, including Swift’s recording catalog, it’s important to note that it was an unusual case. So, it’s worth asking if there’s a lower-risk alternative.
If a label is going to sell a living artist’s entire catalog – or sell a company whose value is dominated by that catalog – the safe thing to do might be to offer the artist a chance to bid on it. Or, failing that, at least consult with the artist to create a comfortable situation, even if that requires additional assurances or an additional payment. If you think it’s only necessary to do the minimum, look at what can happen with an overly legalistic approach. To artists like Swift, these recordings are their life.
Changing the recording agreement template to try to guarantee an outcome may backfire. “Taylor’s Version” simply isn’t a normal situation – it’s one that involved the world’s most popular artist, who is as attached to her catalog as any performer, plus just as business-savvy as most executives. It’s a situation that was almost impossible to anticipate – so making contracts even more one-sided may not help. Instead, a change like this could draw the attention of President Biden’s FTC, which seems to have an abiding interest in noncompete clauses. Especially if a number of competitors just happen to push the same contractual change at the same time.
If labels must have extended re-recording restrictions, couldn’t they add a sweetener, such as offering living artists a right to match the highest bid if their recording catalogs are ever sold individually, or a blocking right over the buyer or something similar? Alternatively, they could also just leave things be.
An overreaching re-recording restriction could also provoke retaliation from artists’ lawyers. They could make leverage points like post-term marketing restrictions and audits more important deal points in order to fight restrictions. That means disfavored buyers might have to wonder how hard it could be to get the approvals they need, or how much they would like continual audits. And in cases where artists are also principal songwriters, buyers could also have trouble clearing song rights, especially for new purposes like AI.
Some labels may be less concerned with expanding this restriction than they are with winning a competitive negotiation to sign a new artist. And if a competing label agrees to a shorter restriction, it could be an easy compromise that would cost little or nothing.
There’s always a temptation to add restrictions to contracts, but in this case, the exercise could backfire. Labels might be advised to be careful what they wish for.
Chris Castle is an Austin-based lawyer. He represents artists, publishers, songwriters and startups on commercial and public policy matters.
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