this means war

Taylor Swift vs. Scooter Braun and Scott Borchetta, Explained

There’s a lot to untangle, and the legalities of the situation are convoluted and sticky. Photo-Illustration: Vulture and Getty Images

On June 30, news broke that Scooter Braun, the megawatt music manager who’s guided the careers of Ariana Grande and Justin Bieber, had acquired Scott Borchetta’s Big Machine Label Group and, with it, Taylor Swift’s catalogue, for over $300 million through his Ithaca Holdings LLC. It’s a business move that’s commonplace in the industry — where one music magnate sees the long-term value of a hefty investment — and, from afar, transpired smoothly.

That is, until soon after, when Swift posted a substantial post on her Tumblr account claiming that it was her “worst case scenario.” “This is what happens when you sign a deal at fifteen to someone for whom the term ‘loyalty’ is clearly just a contractual concept,” she wrote. “And when that man says ‘Music has value’, he means its value is beholden to men who had no part in creating it.” In the missive, she claimed that Braun had engaged in “incessant, manipulative bullying” toward her over the years, and that she’d learned of the sale at the same time as the rest of the world. She noted that she was given the opportunity to “earn” back the masters to her albums, one at a time, for every new album she turned in, and that her future would be in jeopardy, knowing that Borchetta would sell the label while she was locked into the new contract and leaving her future uncertain. Instead, she walked away, leaving the company and signing with Republic and UMG in November 2018.

What ensued after Taylor’s Tumblr post was a series of fiery rebuttals. “How embarrassing this temper tantrum is because you didn’t get your own way,” wrote Scooter’s wife, Yael Cohen Braun, on Instagram. Borchetta posted a blog on the BMLG site, along with a screenshot of BMLG’s response to Swift’s contract demands, as well as text messages between the two that explained how they had tried to come to an agreement but failed to do so. Borchetta confirmed that she did in fact have the opportunity to earn back her masters, in exchange for signing with the label for ten more years. The stakes for BMLG were high: In 2018, Variety reported that Swift’s music accounted for as much as 80 percent of BMLG’s revenue.

Everything seemed to die down shortly after, save for some mentions from both parties in the press. Swift released her blockbuster seventh album, Lover, in August, which debuted at No. 1, and this past Wednesday, put out a remix of the title track featuring Shawn Mendes. If the controversy did anything, it certainly didn’t distract from the upward slope of her juggernaut career.

That is, until November 14, when Swift revealed what’s allegedly been going on behind the scenes, and got a swift rebuttal from BMLG. She posted a message across her social-media platforms claiming that the fallout from Braun’s purchase of BMLG was actively crippling her career, and that Braun and Borchetta were effectively blocking her from performing any of her songs prior to Lover during a performance at the upcoming American Music Awards, taking place November 24, where she’ll be honored with the Artist of the Decade Award. She also said that they were preventing her from using any of those songs in a previously unannounced upcoming Netflix documentary, despite the fact that there is no mention of the aforementioned parties in the film, and that they’d grant use of her catalogue if she agreed not to rerecord her music down the road and stop talking about them publicly.

BMLG responded that they never blocked her from performing at the AMAs — without acknowledging claims that they were withholding performance of her catalogue — and said that this boiled down to the fact that Swift allegedly owes the label millions of dollars and assets and that she hasn’t responded to a single request to mediate. Swift’s longtime publicist retorted that they’re allegedly the ones who in fact owe Swift money — $7.9 million, to be exact — and not the other way around.

There’s a lot to untangle, and the legalities of the situation are convoluted and sticky. Below, Vulture breaks down Swift’s latest post, which she introduced with the note, “Don’t know what else to do,” urging Braun’s artists to try to talk some sense into him, and encouraging Swifties to let him and Borchetta “know how you feel about this.”

Can Taylor Swift legally perform her old songs at the AMAs?

An artist wouldn’t normally need permission to perform their songs, but the fact that she’s performing them during a live broadcast like the AMAs, where the footage may end up on YouTube, is where the issue lies. Swift says that Borchetta and Braun are preventing her from performing a medley of old songs on the grounds that she’d be technically rerecording them, or making “copycat” versions, as she put it in her letter. There’s plausibility to the notion that it’s in fact rerecording, but the law isn’t set up to restrict a performance like this.

Tiffany Almy, an attorney at Rothenberg, Mohr & Binder, LLP, a powerhouse firm formed in 2018 with clients like Top Dawg Entertainment and Calvin Harris, explains that a label may claim that such a performance is a rerecording, but that any restriction in place usually isn’t intended to prevent an artist from doing so in a situation like this. “[It] seems counterintuitive, especially where the artist is the recipient of the award being presented and the promotional value of such a performance is mutually beneficial to both the label and the artist,” she says. (Big Machine has doubled down to TMZ, saying “we have no legal right to stop this and have never tried.”)

Swift could try to claim ephemeral use, where one doesn’t need permission from the owner to perform copyrighted material. But that doesn’t apply here. Under U.S. copyright law, ephemeral, which means “temporary,” refers to just that. The legal explanation is coded in jargon, but essentially if a copyrighted song is played during a real-time event, like during the live broadcast of a sports game, the broadcaster is permitted to use a song if it “makes only one copy of the work, doesn’t distribute it to any other outside entities, and destroys the copy within six months,” explains Songtrust. The fact that the AMAs will likely be reproduced (by being rebroadcast or recorded and put on YouTube or any streaming service) restricts her from using this defense. In other words, Swift might be powerless when it comes to performing her old songs herself at the AMAs, but at the same time, Big Machine maintains it isn’t trying to stop her.

Does the AMAs restriction apply to her Netflix doc?

As for the Netflix restriction, it’s a lot simpler. It isn’t in Borchetta or Braun’s interest to restrict usage of her old songs in a documentary, and Almy explains that Swift would have to be the one to approve their sync usage, not the other way around. “[Braun and Borchetta] have the right to sync them as they please,” she says. “This seems counterintuitive and is likely to perturb investors.”

What would happen if Taylor agrees to Braun and Borchetta’s terms not to rerecord her old songs?

Swift says that Big Machine would waive the restriction to have her perform during the AMAs in exchange for her agreeing not to rerecord her music or speak about Braun and Borchetta publicly. In her post, Swift explained that she couldn’t wait to rerecord her first six albums — something pop singer JoJo did last December after facing a similar label-holding situation, and that Def Leppard forged back in 2012 to spite their label — when she’s contractually able to next November. A typical recording contract states that the artist is restricted from doing so over a certain period of time, says Almy, typically five years after date of delivery of the last master recording, and two to three years after the expiration or termination of the terms of their agreement. For Swift, that could mean she’s able to rerecord her work as competition to the masters in November 2020, which is likely two years after the contract with BMLG was terminated.

But if she were to agree to their terms not to do so, it would essentially tie her hands behind her back and leave Borchetta and Braun with the advantage. “Taylor is alleging that Big Machine would waive their rerecording restriction, allowing her to ‘record’ these old songs at the AMAs in exchange for her agreeing to a perpetual extension of their current rerecording restriction clause, thus forever preventing her from rerecording old songs in new masters and creating competition for them in the marketplace,” Almy says. In this case, if Swift agreed to the terms, she’d be unable to perform any of her old songs owned by Ithaca for sync uses in essentially any circumstance — on TV, in video games, etc. — unless the label gives approval.

“This takes some wind out of the sails of an artist heading back to the studio to rerecord old songs in new masters following the long wait for their rerecording restriction to expire,” she continues. “The artists’ prior label now has extended rights to withhold approvals for certain uses of those newly recorded masters, including synchronization of those newly recorded masters in a Netflix documentary, for example.”

Does Taylor have any legal loopholes?

There may be an easy, albeit not ideal, workaround. If Swift wanted to circumvent the restrictions placed on her from performing her own songs on recorded televised broadcasts, she could enlist others to give renditions of the tracks in a tribute. Artist Eden suggested as much on Twitter:

Almy says this is a legal alternative. “Any other recording artist could perform those exact songs live without Big Machine’s consent,” she says. That’s because when a master recording isn’t being synchronized during a live performance, usually only the writers and publishers who control the composition would need to grant permission, not the owner of the master recording. That means she wouldn’t need a license from Ithaca for that.

What is the Carlyle Group and what do they have to do with all this?

In her post, Swift mentioned the Carlyle Group, who “put up the money for the sale of my music to these two men,” and asked them for help. She’s referring to the gargantuan investment firm that helped finance the deal through the Carlyle Partners VI Fund and, according to its site, has “$222 billion of assets under management across 365 investment vehicles.” In return, Carlyle remained a minority stakeholder in Ithaca, and planned to make an additional investment in Ithaca that would tick up its worth to more than $800 million. As a stakeholder, they likely have some influence in the decisions made by the company, but without knowledge of the contract, it’s unclear to what extent.

What is #IStandWithTaylor all about?

Activating her fan base has elicited a considerable militarization from the Swift army on Twitter against Braun and Borchetta. As quickly as an hour after Swift posted her message, fans publicly shared what were alleged to be their phone numbers and posted screenshots of what they were texting them. Perez Hilton tweeted out the contact information for the Carlyle Group. Meanwhile, artists came to her defense. Halsey wrote on her Instagram story, “This is just mean. This is punishment. This is hoping to silence her from speaking about things by dangling this over her heard.” Tinashe, no stranger to her own label woes, tweeted at Swift, “Fuck that. We’re with you.” Gigi Hadid, a member of Swift’s squad, also took to Twitter: “Scott and Scooter, you know what the right thing to do is. Taylor and her fans deserve to celebrate the music!!” Many more have come to her defense.

What does this mean for her future?

Right now, the AMAs performance, the Netflix documentary, and any other recorded events are a “question mark,” as Swift puts it. It’s unclear who exactly owes which party money, if that’s what this is really all about. Her Reputation tour ended last November, and her Lover Fest international trek kicks off in June, where she’ll be able to perform songs from her back catalogue. But, that means no DVD release of the concert or high-production HBO tour documentary if she performs her old hits. For now, she’s got her pick of 15 more songs from Lover to push as potential singles, plus “Beautiful Ghosts,” her newly released contribution to Cats. And nothing is standing in the way of that.