Re-Record Restrictions

It's Tay-Tay's World; We Just Live In It

I’ve had several people ask me recently to explain the law and business issues around re-record restrictions in record contracts. Taylor Swift has been rolling out her re-recorded albums at a fast clip (about one per year, and I can’t imagine how it could go any faster than that). There’s been a lot of speculation about the timing and order of the releases of her “Taylor’s Version” re-records, and that can be the subject of someone else’s post. People want to know why she had any restrictions at all on remaking her records.

They’re asking right now because Billboard reported this week that record labels are seeking to extend re-record clauses beyond the industry standard as a response to Taylor’s Versions. I’m not here to express my outrage, or really even to express much of an opinion on the substantive issue. I’ve spent most of my career representing artists in deals, as I do currently as a private practice lawyer. But I’ve recently been president of a big independent label, and I followed the industry standard on these restrictions in our deals because it’s a policy that addresses an actual risk. In the absence of some protection, an artist could deliberately impair the label’s ability to recoup their investment. And that is something to keep in mind when analyzing these issues: labels aren’t always evil or even amoral. They often take on real financial risks and opportunity costs to develop artists. Back-end terms often seek to strike a reasonable balance between an artist’s autonomy and the label’s opportunity to recoup and make a profit.

I always try to negotiate these clauses for artists, to get rid of them or at least reduce the length of them - but label lawyers are always fiercely protective of this right. When I explain these provisions to artists, they never latch on to these restrictions as a deal-killer. When it comes to closing a deal, it’s never been a priority over, say, owning masters, or fewer options, or more money. There are often real problems with contracts that could seriously mess up an artist’s career. But having to wait a couple years post-term to re-record something a label released? Probably not a career-ending problem. But ten years?

So what is the industry standard? Since I’ve been a lawyer in the music industry (nearly 20 years, wow), the standard re-record clause in traditionally-structured deals is the LATER of 5 years after a recording is released OR 2 years after an artist is out of the exclusive term of their contract. I’ve heard this structure is because of the “De Havilland Law” of the California Labor Code that limits personal service contracts to 7 years, but I’m not sure. Anyway, assuming Taylor was under the industry-standard term, she was able to release 1989 (Taylor’s Version) because she’s been out of her deal for more than 2 years (she was released in 2018), AND 1989 came out in 2014.

It’s important to note that a recording agreement is a grant of rights in recordings, but a re-record restriction is a restriction on a song (which is a separate copyright). The label owns or controls the recording pursuant to the recording agreement, but typically a label’s license with respect to a song is limited to the right to release the recording of the song. The re-record restriction isn’t a grant of rights in the song per-se; it would apply to a song an artist wrote in the same way it would attach to a cover version. The restriction functions more like a non-compete. The artist agrees contractually to refrain from recording the song for another party for a period of time.

One way that I do always try to negotiate a re-record restriction is to make clear that certain types of recordings are permissible without a waiver from the label. An example is a television appearance. Technically, an artist appearing on a television show that is taped for later broadcast violates a re-record restriction. An artist on a festival stage with a time-delayed webcast violates the restriction. The existence of these sorts of recordings benefits the label, so the label willingly grants waivers. It makes sense to anticipate some of these exceptions to cut down on the administrative red tape. But an artist would have a difficult time trying to get their label to waive, say, a live album released within the window. Those are re-records, even though they’re not soundalikes. It’s also an overreach in my opinion for a label to enforce a restriction on a record that was delivered to a label but never released. Heck, if they don’t plan to put it out, they should give it back.

The only other point I want to make is that the Taylor’s Versions of her Big Machine albums are truly extraordinary, even unique. For the most part, re-recordings of famous records are annoyingly bad, and they are everywhere on platforms. Think of an iconic country or R&B artist from the 50s or 60s and pull up their Spotify or Apple page. You’ll find dozens or even hundreds of albums, and many of them are cheap re-records. It takes some time and diligence to find the original master recordings on platforms, but it’s always worth it because the re-records usually suck. For the most part, the producers haven’t attempted to do what Taylor’s done in painstakingly recreating her original recordings so that we’re hard-pressed to tell any difference. Check this out - it’s wild. I’m a fan, and I don’t feel like I’m losing anything in the experience listening to Taylor’s Version over the original. It must have cost millions, but because she’s Taylor, it will make even more millions.

Point is, you’d have to have a huge incentive to take on such an ambitious and expensive project. Like Taylor, you’d have to have a strong sense of injustice. I’ve made a bunch of albums in my artist “career,” and I can’t imagine trying to re-create any of them in a way that would be remotely convincing. Obviously there’s no inventive for me to attempt this, even if I had time and resources to pull it off. Nobody cares. I don’t think there’s a big risk that she’ll start a trend here, because Taylor is a unicorn! Most artists couldn’t do it if they wanted to, even with unlimited budget, personnel, and resources. Also most artists would have a lot more margin for error for accuracy because they don’t have hundreds of millions of fans who know every note and nuance of their records! She has to get it exactly right, or else her fans will push back. But that is one reason her fans are so passionate: She always takes the time and puts in the work to get it right.

The one opinion I’ll express is that I don’t think it’s a good look for labels to respond to the “threat” of Taylor’s Versions by seeking to expand restrictions. It’s negative press that’s getting a lot of attention. People are curious, and the prevalent position people are taking on social media is that it’s just another overreach by these terrible companies and there’s no justification for limiting an artist’s autonomy in any way. I am basically pro-record label - I’m glad they still exist. I WANT them to exist! I ran one for 5 years, and I approve all sorts of record deals for artists all the time. I understand and accept why labels think these restrictions on competition are necessary, even if it’s an arguable point. As a label head, I insisted upon these terms in every deal because my job included managing the company’s risks. But with labels having to compete more and more with self-release and label services options that allow artists to own and control their recordings, it’s just not a good look to be pushing to extend these terms now. I don’t think it will result in changing the standard, but it’s just another thing to spin up outrage about how terrible record labels are.