TS v. BS: a case study of how Taylor Swift “had every chance in the world”
TL;DR: I think Scott Borchetta’s terms for Taylor Swift were probably worse than simple “an album for an album”, and the notion that Taylor Swift “was given a chance to own 100% of her art and just walked away” is (ahem) not entirely accurate — which can be gleaned from just that single screenshot Scott Borchetta posted to illustrate his extraordinary feat of generosity.
Disclaimer
a. I may or may not be horribly, horribly wrong; since
b. I know virtually nothing about the music industry and its rules and contracts; hence
c. this post has more in common with reading food labels than with any legal work; also
d. I’m only using fancy words here ’cause there’s a saying “never approach a Swiftie without a loaded dictionary”; however
e. people do weirder things nowadays.
I’m two years late, I know. All I can say in my defense is I only heard about this last week. Why? Well, here’s the short explanation:
Not entirely certain if someone analyzed it closely. Judging by how many (dozens of millions?) people saw the screenshot and given Swifties’ collective eye for detail, I guess it’s been thoroughly researched several hundred times over. Nevertheless, following the universal and widely accepted wisdom of “better late than never” here’s my stab at a better, superior “late”.
Kowalski, status report!
My fellow practitioners of the viscid art of preposterous slowerpokery, unfamiliar with the subject matter are strongly encouraged to apprise themselves by following up on the story here and here… and practically everywhere else.
So, deal of the century Taylor Swift reportedly walked away from for reasons unfathomable to her woebegone benefactors.
What they say
Jun 30, 2019 Taylor Swift posted on Tumblr:
For years I asked, pleaded for a chance to own my work. Instead I was given an opportunity to sign back up to Big Machine Records and ‘earn’ one album back at a time, one for every new one I turned in. I walked away because I knew once I signed that contract, Scott Borchetta would sell the label, thereby selling me and my future. I had to make the excruciating choice to leave behind my past. Music I wrote on my bedroom floor and videos I dreamed up and paid for from the money I earned playing in bars, then clubs, then arenas, then stadiums…
…This is my 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. And when that man says ‘Music has value’, he means its value is beholden to men who had no part in creating it.
And the very same day Scott Borchetta replied on Instagram:
So, it’s time for some truth… In regard to a post earlier today from Taylor, it’s time to set some things straight.
Click the link in my bio
The link led to the post on the record studio blog, where, to “set some things straight” Borchetta posted a screenshot with deal points he and Taylor were negotiating.
What the small print says
First off, I’m curious as to how he was able to post that piece if everything was lawyered up and whether he was in breach of his very own NDA. Now, that would be fun!
Let’s start with the screenshot with the deal points and go over some of Borchetta’s helpful commentary after.
TS (Taylor’s side) v. BS (Borchetta’s side):
1. Term of the contract
TS: Let’s make it 7 years
BS: Let’s make it 10 years
2. Upon execution of the contract
TS: I want all my stuff that you currently got, with no strings attached except your guarantee that there are no strings attached. And you got to disclose if there are any strings attached after all. Thanks.
BS. Agreed…
…provided that the TS Materials would be subject to the terms and conditions of any license or other contract BMLG has entered into to-date with regard to them, including, without limitation, mechanical licences, master licenses, union agreements, manufacturing agreements, distribution agreements and agreements with creators of content or their affiliates.
I.e. you’ll remain tied by all kinds of existing contractual obligations between us and other people, including those you (probably) know nothing about. And who’s to say we cannot renew or extend our existing contracts? And nothing will (probably) stop us from slipping in a carefully constructed deal or two with some entity right before we shake hands. Long story short, you got your masters, sorta… but that’s irrelevant because things will basically stay the same since we‘ll keep managing licensing, distribution, manufacturing, etc - and your freedom to use your stuff will actually depend on the legal framework we’ve already built around you and our ability to tighten the noose by juggling those agreements.
3. During the term of the contract
TS: For the duration of the term above you’ll have the exclusive license to use my stuff to run business on the territory we agreed upon. This will be in your name and you will be a party to those agreements but I’ll be directing and approving things (naturally, duh), including licenses to third parties. When we have resolved all other issues I’ll be open to discussion about giving you control over distribution.
BS: Agreed as to the Delivered Existing TS Materials (i.e. your stuff from Paragraph 1) and the New TS Materials (um…*shrug*). However, we have some tiny, really minor alterations…
a. TS would retain the exclusive right to exploit the Undelivered Existing TS Materials, provided that no phonorecord uses may be made of them by any entity other than BMLG.
Well, the devil is forever in the details. What is being meant by Undelivered Existing TS Materials? If we have a very close look at Paragraph 2, we’ll see that “TS Materials” on the right corresponds to “all recordings (audio and/or audio-visual), artwork, photographs, and any other materials relating to TS” on the left. It’s also interesting to know the actual difference between “New TS Materials” and “Undelivered Existing TS Materials”, but one can only surmise.
Okay, so what about “ no phonorecord uses … by any entity other than BML”? Now, what is a “phonorecord”, exactly? Let’s look that up.
Um, that’s actually “masters” I guess. Could this mean (depending on the exact definition of “TS Materials” not presented by Mr. Borschetta, of course) not “an album for an album”, but something like “anything existing that you can write a song about/with, i.e. anything material, every scrap of paper, every picture, anything and everything that you currently have that can be made into a song and released will have to go through us first”? Because, well, that’s what one would (probably) call “Undelivered Existing TS Materials” that would require phonorecord uses at some point. Maybe. Maybe not. There’s not enough context, but this would certainly be about unreleased songs.
b. BMLG agrees to the concept of TS control with regard to material, substantive issues (thresholds TDB) other than the choice of distributor(s) and manufacturers and the terms and conditions of the agreement(s) with them.
Directing and approving things — sure, why not. Except manufacturers and distributors, that’s where you leave it to us completely. I.e. we’re handling the money, you’re keeping whats-that-thing-called… creative control.
Now, how very generous. And this is just five paragraphs and something Borchetta thought was speaking in his favor. Just makes you wonder about what the rest of it looked like.
Setting things straighter still
So what did Borchetta have in his blog post in terms of explanation?
I am attaching a few very important deal points in what was part of our official last offer to Taylor Swift to remain at Big Machine Records. Her 13 Management team and attorney Don Passman went over this document in great detail and reported the terms to her in great detail.
Taylor and I then talked through the deal together.
a. It’d be nice to see the whole offer/agreement, since, you know, even tiny little provisions buried somewhere can have a lot of very interesting consequences. Just a few “very important deal points” is not nearly enough to see what was really on the table.
b. “…went over this document in great detail and reported the terms to her in great detail” — in my understanding it’s not about just “going over this document” and amicably “talking through the deal together”. For instance, BS wording in the first paragraph was actually screaming about the need to cavity search every single contract mentioning “TS materials” for bugs. And that’s just one paragraph.
c. Spoon-feeding facts like that without showing the whole picture… Why not post more very important deal points, or the deal itself since Borchetta clearly didn’t think he was in breach of a non-disclosure agreement posting a few very important deal points?
As you will read, 100% of all Taylor Swift assets were to be transferred to her immediately upon signing the new agreement.
While this is not (technically) a lie, what was being meant by “one hundred percent” of assets? What is an asset?
“Transferred immediately”, but “subject to the terms and conditions of any license or other contract BMLG has entered into to-date with regard to them”? Sooo, isn’t this really about licenses and royalties? Since…
We were working together on a new type of deal for our new streaming world that was not necessarily tied to ‘albums’ but more of a length of time.
Of course, you were. Hence you were okay with giving up the masters but keeping the licensing framework attached to your recording company and wanted to have control over distributors and “phonorecord uses”.
…My offer to Taylor, for the size of our company, was extraordinary. But it was also all I could offer as I am responsible for dozens of artists’ careers and over 120 executives and their families.
Actually, “extraordinary” went all the way up the proverbial 🛴 creek where it met “mendacity” and they decided to have babies together. “All I could offer”, indeed.
…Taylor had every chance in the world to own not just her master recordings, but every video, photograph, everything associated to her career. She chose to leave.
Shedding tears of sympathy for a dolorous Borchetta one can only imagine what TS would’ve ended up with after signing up for the next ten years.
“I walked away because I knew once I signed that contract, Scott Borchetta would sell the label, thereby selling me and my future.” — Taylor Swift
Indeed.
My 2 cents worth input on moral issues. While researching this I met comments on social media saying “well, isn’t she rich already” and “that’s business and if you don’t like it, you should not be in the industry cause it’s just how it works”, etc.
For the sake of an exercise (and with no connection to the text above, of course) imagine there was someone your own (very) hard work made rich(er) and whose input had nothing to do with creativity. That person was supposedly an old friend, pledging loyalty and telling you (and everybody else) how important you were to them. Some day you asked that person for your creative stuff back, politely, on clear terms. Because you kind of suspected that, despite all those grand words and warm smiles they didn’t give a flying 🛴 about your creative legacy and it was all just about money and underhand deals. So, you were having negotiations and that “friend” of yours said “AGREED” to your points and gave you the kind of deal that was basically robbing you blind. And when you stormed out and let others know what kind of 🛴 you’d been dealing with, that person claimed you had “every chance in the world” to get what you wanted and called on their friends to make you look unreasonable and mean. In my humble and highly unenlightened opinion, this is kind of universally unacceptable, regardless of personal net worth and established business (mal)practices.
“Direct and honest”
There was another post in the BMLG blog on November 15, 2019, the day after Taylor Swift finally lost her temper over being unable to use her own music for the 2019 AMA and the Netflix “Miss Americana” documentary and asked Swifties to intervene. It’s interesting to see what immediately crawled out of the woodwork there.
…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. We have worked diligently to have a conversation about these matters with Taylor and her team to productively move forward. We started to see progress over the past two weeks and were optimistic as recently as yesterday that this may get resolved. However, despite our persistent efforts to find a private and mutually satisfactory solution, Taylor made a unilateral decision last night to enlist her fanbase in a calculated manner that greatly affects the safety of our employees and their families….
I.e. Not only did Taylor have to leave her creative legacy in our hands and not only did we sell it to the person Taylor dreaded the most (and published photos celebrating the deal, like), we were optimistic (lol) she’d graciously bestow on us millions of dollars and “multiple assets” after that… And were working diligently to extract that out of her. So when TS decided to tell the world about how we were operating and called for help, that came as a total 🛴ing surprise. We thought we had the edge, but we completely forgot about the community the size of a nation we tried to gaslight previously. Whoops.
Taylor, the narrative you have created does not exist. All we ask is to have a direct and honest conversation. When that happens, you will see there is nothing but respect, kindness and support waiting for you on the other side. To date, not one of the invitations to speak with us and work through this has been accepted. Rumors fester in the absence of communication. Let’s not have that continue here. We share the collective goal of giving your fans the entertainment they both want and deserve.
How does this make sense? Even if we momentarily forget both the 🛴ty deal and the shady sale, the BS logic behind this post is still a little shaky:
a. We were trying to have a conversation about how you “contractually owe” us millions of dollars and “multiple assets”, we “started to see progress” and “as recently as yesterday” “were optimistic” this “would get resolved” thanks to our “persistent efforts”,
b. Although “not one of the invitations to speak with us and work through this has been accepted”.
c. We were trying to “find a private and mutually satisfactory solution” (i.e. make sure nobody knows what we’re trying to do to you),
d. Nevertheless, when/if we do have this “direct and honest” conversation (about how you “contractually owe” us), “you will see there is nothing but respect, kindness and support waiting for you on the other side”.
Besides, in their previous post BS claimed that
a. “100% of all Taylor Swift assets were to be transferred to her immediately upon signing the new agreement”, and
b. “Taylor had every chance in the world to own not just her master recordings, but every video, photograph, everything associated to her career. She chose to leave.”
Wasn’t that supposed to be a clean breakup since BS were to keep the TS assets and TS “chose to leave”? How come TS ended up with “contractually owing” BS money and “multiple assets”?
“The narrative you have created does not exist. All we ask is to have a direct and honest conversation.”
Someone’s been living inside their own “virtual rectitude” bubble a little too long if they think something like this magically becomes not looking 🛴ed up on so many levels as soon as they publicly super-believe it’s all legit. Never mind being hilariously self-contradictory about it, too.
Let me wrap this up with a placating gesture. Of course I may be wrong entirely or partially and of course I’d want to know more about the recording industry, contracts and genuine whiteknighthood and overall nobility of certain paladins of unequalled integrity. After all, I am nothing but reasonable. Here, I even swapped all the rude words with emojis.
