LOOK WHAT YOU MADE HER DO: HOW SWIFT, STREAMING, AND

LOOK WHAT YOU MADE HER DO:

HOW SWIFT, STREAMING, AND SOCIAL MEDIA

CAN INCREASE ARTISTS’ BARGAINING

POWER

EMILY TRIBULSKI†

ABSTRACT

Music and technology have always been intertwined and

recently the developments of streaming and social media have

opened the door for artists to elevate their place in the music

industry. The growth of social media engagement is undeniable

and in 2016 streaming platforms led to the music industry’s first

earnings increase in fifteen years, with double digit gains each

year since—a change to the status quo that cannot be ignored. The

technological moment provided by streaming and social media

gives lesser-known artists, especially when they are backed by

superstars, a unique opportunity to challenge traditionally label

friendly record deals. These technologies provide artists with the

ability to grow their fanbase and increase their bargaining power

before reaching the negotiation table with a label—giving them

more leverage to maintain ownership of their music and receive

more artist friendly contracts.

I. INTRODUCTION TO THE MUSIC INDUSTRY (TAYLOR’S VERSION)

It is difficult to make it very long without hearing news about the

Artist of the Decade: Taylor Swift.

Swift became a household name in the

2010s, and over the last decade, Swift topped music charts, influenced the

music industry and pop culture, ruled social media, and packed stadiums

full of adoring fans.

With a star this big, all of her major industry moves

†

Duke University School of Law, J.D. expected, May 2021; Villanova University,

B.A., May 2017. Thank you to my faculty advisor, Professor Nicole Ligon, for

her guidance and encouragement. I appreciate all the feedback and insight from

Professor Jennifer Jenkins and my Duke Law & Technology Review colleagues.

A final thank you to my friends and family for all their support. This Note is

dedicated to my grandfather, Peter J. Tribulski Jr., for encouraging me to always

keep learning.

Christopher Rosa, Taylor Swift Is the Artist of the Decade–Whether You Like It

or Not, GLAMOUR (Dec. 24, 2019), https://www.glamour.com/story/taylor-swift-

is-the-artist-of-the-decade.

See, e.g., id. (“No singer affected music and pop culture in the 2010s quite like

she did.”); Chart History: Taylor Swift, BILLBOARD, https://www.billboard.com

/music/taylor-swift/chart-history (last visited Mar. 15, 2020) (listing Swift’s 97

chart appearances, 25 Top 10 Hits, and 5 No. 1 Hits); Devin Leonard, Taylor Swift

IS the Music Industry, BLOOMBERG (Nov. 13, 2014 9:02 PM EST)

https://www.bloomberg.com/news/articles/2014-11-12/taylor-swift-and-big-

machine-are-the-music-industry; Jem Aswad & Chris Willman, Taylor Swift

No. 1] DUKE LAW & TECHNOLOGY REVIEW 92

make headlines. This includes her November 2018 transition from Big

Machine Records (“BMR”), the Nashville-centered independent label that

originally signed her, to Universal Music Group (“UMG” or “Universal”),

one of the “Big Three” music labels in the industry.

While this signing initially made news because of Swift’s stardom

and advocacy for other artists, it faded from headlines until many months

later.

In the summer of 2019, Scooter Braun purchased Big Machine

Label Group, the parent organization of BMR, with the backing of the

Carlyle Group and Ithaca Holdings, Braun’s company.

In response to this

seemingly normal business move, Swift proclaimed that this was her

Signs Landmark New Deal with Universal Music Group, VARIETY (Nov. 19,

2018, 7:06 AM PT), https://variety.com/2018/music/news/taylor-swift-news-

alert-1203032124/ (“[Swift was] the youngest-ever recipient of the Grammy for

Album of the Year — and the first female solo artist to win the award twice — is

the only artist in history with four albums with sales of more than one million

copies in their first week of release.”); Mark Savage, Grammys 2021: Beyoncé

and Taylor Swift Make History, BBC (Mar. 15, 2021),

https://www.bbc.com/news/entertainment-arts-56397324 ( “Taylor Swift [] made

history at Sunday's ceremony, by becoming the first female artist ever to win

album of the year three times.”); Person of the Year, TIME,

https://time.com/vault/subject/person-of-the-year/ (last visited Mar. 15, 2020)

(featuring Swift on Time’s Person of Year Cover in 2017 among four other

women calling them “The Silence Breakers” for their influence on the MeToo

movement); Jason Lipshutz, Billboard Woman of the Decade Taylor Swift: ‘I Do

Want My Music to Live On,’ BILLBOARD (Dec. 11, 2019 9:56AM EST),

https://www.billboard.com/articles/columns/pop/8545822/taylor-swift-cover-

story-interview-billboard-women-in-music-2019 (naming Swift Billboard’s

Woman of the Decade for her unprecedented rise to stardom using her star power

to advocate for artists’ rights); The Most Followed Instagram Profiles,

trackalytics, https://www.trackalytics.com/the-most-followed-instagram-profiles

/page/1/ (last modified Mar. 15, 2020) (ranking Swift as the fourteenth most

followed Instagram account with over 142 million followers); Taylor Swift,

YOUTUBE https://www.youtube.com /user/taylorswift/about (last visited Mar. 15,

2020) (documenting the nearly 19 billion views on Swift’s YouTube videos); Eric

Frankenberg, Taylor Swift's Reputation Stadium Tour Breaks Record for Highest-

Grossing U.S. Tour, BILLBOARD (Nov. 30, 2018), https://www.billboard

.com/articles/columns/chartbeat/8487606/taylor-swift-reputation-stadium-tour-

breaks-record-highest-grossing-us-tour (discussing that Swift’s Reputation

Stadium Tour became the highest grossing tour in the U.S. while pulling in over

$345 million internationally).

Kathryn Rosenberg, Restoring the Seven Year Rule in the Music Industry, 26

FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 275, 277 (2015) (“[T]he “Big

Three,”—Sony Music Group (“Sony”), Universal Music Group (“UMG”), and

Warner Music Group (“WMG”)—represent a large share of the music market;

many well-known, though seemingly smaller, regional record labels actually fall

under the corporate umbrella of one of these three players.”).

See Aswad & Willman, supra note 2.

Ed Christman, Scooter Braun Acquires Scott Burchetta’s Big Machine Label

Group, Taylor Swift Catalog For Over $300 Million, BILLBOARD (Jun. 30, 2019),

https://www.billboard.com/articles/business/8518119/scooter-braun-acquires-

big-machine-label-group-scottborchetta?utm_campaign=20190630&utm_source

=Sailthru&utm_medium=email&utm_term=biz_breakingnews.

93 Look What You Made Her Do [Vol. 19

“worst case scenario.”

While Swift’s reaction was initially perplexing to

some, diving into Swift’s former deal with BMR and her past relationship

with Braun reveals just how personally taxing this purchase was for her.

Swift signed with BMR at just fifteen years old and released her first six

albums with the label.

BMR retained the rights to her sound recordings,

or masters, for these first six albums after Swift left for UMG.

Besides

the true he-said-she-said of Swift’s ability to purchase her masters from

BMR before her departure to UMG, the fact is her masters remained with

BMR and even accounted for a reported 50–80% of BMR’s revenues.

Swift and Braun have a tumultuous relationship and his purchase

of BMR put him in charge of Swift’s past art.

While Swift was able to

start re-recording her albums released under BMR after her exclusivity

clause expired in November 2020 and released her first re-recorded album

Fearless (Taylor’s Version) on April 9, 2021, her original masters

currently remain under Braun’s control.

As this article will discuss in

Section II, infra, owning one’s own master recordings is the key to

Taylor Swift (@TaylorSwift), TUMBLR (Jun. 30, 2019),

https://taylorswift.tumblr.com/post/185958366550/for-years-i-asked-pleaded-

for-a-chance-to-own-my.

Ashley Cullins, “She Has No Legal Recourse”: Why Taylor Swift Won’t Sue

Scooter Braun to Get Her Masters, HOLLYWOOD REP. (July 2, 2019 2:14 PM PT),

https://www.hollywoodreporter.com/thr-esq/why-taylor-swift-wont-sue-scooter-

braun-get-her-masters-1222082.

Christman, supra note 5.

Dominic Rushe, Why Taylor Swift and Scooter Braun’s Bad Blood May Reshape

the Industry, GUARDIAN (Nov. 23, 2019 1:00 AM EST), https://www.theguardian

.com/music/2019/nov/23/taylor-swift-scooter-braun-amas-old-music-masters

(citing Chris Willman, Taylor Swift Stands to Make Music Business History as a

Free Agent, VARIETY (Aug. 27, 2018 4:18 PM PT), https://variety.com

/2018/music/news/taylor-swift-stands-to-make-music-business-history-as-a-free-

agent-1202918336/). See generally, Cullins, supra note 7 (providing that Don

Passman, Swift’s attorney, claimed BMR “never gave Taylor Swift an

opportunity to purchase her masters”); M.H., The Relationship Between

Musicians, Masters Recordings and Record Labels, ECONOMIST (Jul. 8, 2019),

https://www.economist.com/prospero/2019/07/08/the-relationship-between-

musicians-master-recordings-and-record-labels (discussing the possibility of

Swift earning back her masters through signing a second contract with BMR).

Brittany Spanos, Taylor Swift vs. Scooter Braun and Scott Borchetta: What the

Hell Happened?, ROLLING STONE (July 1, 2019 1:22 PM), https://www.rolling

stone.com/music/music-news/taylor-swift-scooter-braun-scott-borchetta-

explainer-853424/.

Tim Ingham, Taylor Swift Plans to Re-Record Her Hits. Here’s What She Might

Be Facing, ROLLING STONE (Dec. 9, 2019 11:20 AM), https://www.rollingstone

.com/music/music-features/taylor-swift-plans-to-re-record-her-hits-heres-what-

she-might-be-facing-923019/; Jon Caramanica et al., Taylor Swift Remade

‘Fearless’ as ‘Taylor’s Version.’ Let’s Discuss., N.Y. TIMES (Apr. 9, 2021),

https://www.nytimes.com/2021/04/09/arts/music/taylor-swift-fearless-taylors-

version.html (discussing the release of Swift’s first re-recorded album); Joe

Coscarelli, Taylor Swift’s Rerecorded Album Releases Begin With ‘Fearless’ in

April, N.Y. TIMES (Feb. 11, 2021), https://www.nytimes.com/2021/02/11/arts

/music/taylor-swift-rerecord-fearless.html.

No. 1] DUKE LAW & TECHNOLOGY REVIEW 94

controlling one’s artistic fate.

Masters are the original sound recordings

of songs; they embody “a recording artist’s life’s work and musical

legacy” and constitute an “irreplaceable primary source of recorded

music.”

Indeed, the master recordings are “essential to releasing re-

mixed and re-mastered versions of previously released material in new

configurations; creating new releases from previously-unreleased tracks,

outtakes, and alternative versions from recording sessions; and generating

new sources of revenue as technology evolves.”

Further, owning the

masters of a work means owning the sound recording copyright—which

has significant control and financial implications.

For Swift, seeing her

work in the hands of a man who famously bullied her was a devastating

turn of events.

The internet rallied around the popstar but in the end the

tension was “a personal issue, not a legal one.”

Swift likely did not have

a case. She signed a contract at a young age releasing ownership of her

masters to BMR, which then eventually led to the potentially

unforeseeable and unhappy scenario where a personal enemy legally

gained ownership through the sale of the label.

Without a clause in her

contract restricting the sale of her masters to third parties, there was not

much she could do at the time except bring publicity to the issue and then

move on.

Fast-forward to November 2019, when Swift versus Braun was

once again on front pages—this time for a dispute over Swift’s ability to

perform her old songs at the American Music Awards (“AMAs”) where

Why Owning Your Master Recordings Means Everything, AWAL (Sept. 19,

2018), https://www.awal.com/blog/maintaining-ownership-rights-as-an-artist;

Anastasia Tsioulcas, Artists File $100 Million Suit Against Universal Music Over

2008 Fire, NPR (June 22, 2019 1:13 PM), https://www.npr.org/2019/06/22/7349

73029/artists-file-100-million-suit-against-universal-music-over-2008-fire.

Class Action Compl. for Breach of Contract, Soundgarden v. UMG Recordings,

Inc., No. 2:19-cv-05449-JAK-JPR, 2020 U.S. Dist. LEXIS 64545, 20 (2020)

[hereinafter Class Action Complaint].

Id.

See Copyright 101: What Artists Need to Know to Protect Their Work, STEM

(June 21, 2018), https://stem.is/music-copyrights-artist-rights/ [hereinafter

Taylor Swift (@TaylorSwift), TUMBLR, supra note 6; see Lisette Voytko,

Here’s Why Taylor Swift Hates Scooter Braun So Much, FORBES (July 1, 2019),

https://www.forbes.com/sites/lisettevoytko/2019/07/01/heres-why-taylor-swift-

hates-scooter-braun-so-much/?sh=2c1e858e2084 (explaining Swift’s allegations

that Braun bullied her through his clients Justin Bieber and Kanye West).

Cullins, supra note 7.

See id. (quoting Derek Crownover, Nashville-based entertainment and music

lawyer, who said of this situation, “I don’t see any legal ramifications that could

come of this, unless there were restrictions on the sale of the masters to third

parties.”).

See id. However, James Sammataro, an artist and company representative in the

music industry, says that “there may be a confidentiality provision that could have

been breached when Borchetta posted the proposed deal terms online,” which

could give Swift some type of legal recourse against Braun and Borchetta.

However, “it's just as likely that [Braun] could argue Swift breached it first by

posting on Tumblr.” Id.

95 Look What You Made Her Do [Vol. 19

she was set to be honored as the Artist of the Decade.

In a post on social

media, Swift announced that Braun would not allow her to perform her old

songs “on television because [he] claim[ed] that would be re-recording

[her] music before [she was] allowed to.”

While Swift was ultimately

able to perform her songs at the AMAs, this situation brought the issue of

artists’ ownership and rights back into the mainstream media

conversation.

Swift’s particular position, as not only the performer but

also as the writer of her songs, gives her the ability to re-record her works

after the exclusivity clause in her original BMR expires.

However, since

this exclusivity lasted until November 2020, Braun and BMR relied on a

relatively unique argument that because Swift’s AMAs performance was

set to be televised then it could be a considered a recording and therefore

a violation of the exclusivity clause of her contract.

Beyond the back and forth and overall media circus, this very

public dispute brought many serious issues of the current artist-label

See, e.g., Dan Alder, Just in Time: Scooter Braun Breaks His Silence on Taylor

Swift Ahead of the American Music Awards, VANITY FAIR (Nov. 22, 2019),

https://www.vanityfair.com/style

/2019/11/scooter-braun-taylor-swift-statement; Riya Bhattacharjee et al., Taylor

Swift Accuses Scott Borchetta and Scooter Braun of ‘Tyrannical Control,’

Blocking Her from Performing Her Old Music at AMA, CNBC (Nov. 14, 2019,

8:06 PM), https://www.cnbc.com/2019/11/14/taylor-swift-accuses-scott-borc

hetta-and-scooter-braun-of-blocking-her-from-performing-her-old-music-at-

ama.html; Reid Nakamura, Taylor Swift Says Scooter Braun Won’t Let Her Play

Her Old Songs at the American Music Awards, WRAP, (Nov. 15, 2019, 10:33

AM), https://www.thewrap.com/taylor-swift-says-scooter-braun-wont-let-her-

play-her-old-songs-at-the-american-music-awards/; Amy X. Wang, Can Taylor

Swift Really Be Banned From Performing Her Old Albums?, ROLLING STONE

(Nov. 15, 2019, 2:35 PM ET), https://www.rollingstone.com/pro/news/can-

taylor-swift-be-banned-from-performing-amas-big-machine-913150/.

Taylor Swift, Don’t Know What Else to Do, TUMBLR (Nov. 14, 2019),

https://taylorswift.tumblr.com/post/189068976205/dont-know-what-else-to-do.

See Jon Blistein, Taylor Swift Allowed to Perform Old Songs at AMAs, Says

Former Label, ROLLING STONE (Nov. 18, 2019, 3:37 PM), https://www.rolling

stone.com/music/music-news/taylor-swift-amas-big-machine-914127/; Tatiana

Cirisano, Taylor Swift Cleared by Big Machine to Perform Old Songs at AMAs,

BILLBOARD (Nov. 18, 2019), https://www.billboard.com/articles/business/8544

038/taylor-swift-amas-cleared-perform-old-songs.

Travis M. Andrews, Can Taylor Swift Really Rerecord Her Entire Music

Catalogue, WASH. POST (Aug. 22, 2019, 7:44 PM), https://www.washington

post.com/arts-entertainment/2019/08/22/can-taylor-swift-really-rerecord-her-

entire-music-catalogue/.

See Bhattacharjee et al., supra note 20 (“While an agreement would not restrict

Swift from performing any of her songs, it would prevent her from performing

them at an event that would be recorded, like the American Music Awards or in a

Netflix documentary, Alter said. However, it is unusual that a label would restrict

an artist from doing this. The restriction is usually put in place so an artist cannot

record with another label or on their own in a way that would be competitive to

the first label, she said.”) Id.; Ingham, supra note 11.

No. 1] DUKE LAW & TECHNOLOGY REVIEW 96

dichotomy into the general public’s consciousness.

Even as one of the

most powerful artists in the world, Swift was locked into a “bad deal” that

she made at a young age. If Swift and her current team of high-powered

attorneys are powerless against an unfair contract, it begs the question of

how exploitative labels can be over the less powerful players in the

industry.

While owning one’s masters means everything for artists,

traditionally the power imbalance between artists and labels has prompted

new talent to sign away their rights for a label’s help to make it in the

industry.

Despite Swift’s lack of legal claims in her battle with Braun,

she was “wrestl[ing] with [one of] the tectonic shifts in the music market:

the shift to digital.”

As the technological landscape continually shifts and

creates ease of access and exposure for artists, artists will hopefully be able

to increase their negotiation power and decrease their dependence on the

traditional label friendly record deal. While exploitative record deals may

be legally permissible if the artist signs on the dotted line, “legal doesn’t

mean moral or ethical” and the industry structure ought to change.

This Note calls for a change to the status quo in the artist-label

relationship. Since a complete rejection of major labels is likely not

feasible (and would likely be devastating for many artists and industry

employees), in the alternative, this Note examines the importance of power

in an artist’s initial contract negotiation with a record label and concludes

that artists ought to try to leverage technology to increase their negotiation

power to best avoid the pitfalls of modern recording contracts. Section II

starts by exploring the rise of the artist-label relationship and provides a

broader view of the battles between labels and top artists over the decades

to highlight the pervasive problems of this inherently exploitative

relationship. Section III provides a brief overview of the current status of

relevant aspects of music rights and ownership as it pertains to the

dynamic between artists and labels. Section IV considers the shortcomings

of the current dynamic from an artist’s perspective. Building off this

understanding, Section V will discuss the opportunity that technology

presents for artists to take more control of their career without having to

sign away their rights to major labels. Section VI will highlight some ways

in which powerful artists have utilized this framework to help blaze a new

path and how they can aid new artists in an effort to further shift the power

imbalance. Numerous changes are needed to better ensure the fair

Scott Borchetta, So, It’s Time for Some Truth . . ., BIG MACHINE LABEL GROUP

(June 30, 2019), https://www.bigmachinelabelgroup.com/news/so-its-time-some-

truth; Quinn Keaney, Big Machine Denies Blocking Taylor Swift from Singing

Hits, Calls Threats “Calculated, ”POPSUGAR (Nov. 15, 2019),

https://www.popsugar.com/entertainment/big-machine-records-statement-about-

taylor-swift-amas-feud-46904752.

Why Owning Your Master Recordings Means Everything, supra note 12.

Dominic Rushe, Why Taylor Swift and Scooter Braun’s Bad Blood May

Reshape the Industry, GUARDIAN (Nov. 23, 2019, 1:00 AM EST),

https://www.theguardian.com/music/2019/nov/23/taylor-swift-scooter-braun-

amas-old-music-masters.

Halsey (@Halsey), TWITTER (Nov. 15, 2019, 11:16 AM), https://twitter.com

/halsey/status/1195374934207254528.

97 Look What You Made Her Do [Vol. 19

treatment of young artists in initial artist-label record transactions, and this

Note seeks to provide a blueprint to help bring about this important

industry change.

II. I’M ONLY ME WHEN I’M WITH YOU: THE HISTORIC

RELATIONSHIP BETWEEN ARTISTS AND LABELS AND THE

RESULTING OWNERSHIP BATTLES

While “[a]rtists and labels have fought from the early days of

labels,” the relationship began because it was mutually beneficial.

Since

the advent of Thomas Edison’s phonograph, those that could afford

recording technology saw an opportunity to sell vinyl records to those

willing to pay—but they needed desirable material to create demand.

The performers themselves did not generally have the means or access to

press records themselves so they would be limited to in person

performances if left to their own devices.

The partnership between artists

and labels was therefore natural and mutually beneficial from the start—

the creative and the industrial production elements were better when

paired than either of them could be alone. The first record deal was struck

in 1904 with relatively generous terms for the performer.

This deal, and

those that followed after, were typically pursued because the artist and

label had something the other side needed. Labels need talent to produce

chart toppers and reap big profits. Artists need someone to take a chance

on them to cover the upfront expenses faced when launching a career since

many performers could not finance themselves.

Even when both parties benefited, however, these were not equal

partnerships. In fact, today “[r]ecord contracts are notoriously slanted in

the favor of labels.”

Labels often have the upper-hand when negotiating

contracts because of their deep-pockets and deep-rooted connections to the

industry.

These strong incentives, alongside the typical asymmetry in the

parties’ sophistication in and familiarity with contract law, allow labels to

write their initial contracts with artists in very favorable terms for

themselves.

Signing a contract with a resource-laden label is typically very

appealing for new artists. Labels’ deep-pockets allow them to offer artists

large sums of cash—called an “advance”—upon signing. Since most

Bhattacharjee et al., supra note 20 (quoting Lisa Alter, a music attorney).

Decoded: The History of Record Deals, AWAL (Apr. 30, 2019),

https://www.awal.com/blog/history-of-record-deals.

Id.

This deal awarded the artists a $4,000 flat fee and about 40¢ of each record sold

which is roughly equivalent to $115,000 flat and $11 per record. Id.; Morgan

Friedman, The Inflation Calculator, WEST EGG, https://westegg.com/inflation/

(last visited Oct. 23, 2020).

Jody Rosen, The Day the Music Burned, N.Y. TIMES MAG. (June 11, 2019),

https://www.nytimes.com/2019/06/11/magazine/universal-fire-master-

recordings.html.

See Heather McDonald, The Record Label’s Role in the Music Industry,

BALANCE CAREERS (Oct. 28, 2019), https://www.thebalancecareers.com/what-is-

a-record-label-2460614.

Id.

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artists do not have the personal wealth to launch their careers

independently, the advance is crucial to beginning their career. Advances

are like a loan that an artist can use toward their work and living expenses

while they develop as an artist and write and produce their music.

artist’s record deal, which usually includes the label owning their masters,

serves as the guarantee for these loans and if the artist succeeds, their first

earnings go toward paying the advance off in recoupment payments.

However, an advance is very different from a typical bank loan in that if

the artist fails, they do not owe the label.

This lopsided deal, where the

artists only have to recoup their advance if they are successful, is

extremely appealing to artists because they cannot walk into a typical

lender and secure a deal that would forgive them in a similar manner.

This opportunity, to have someone—and not just anyone, but a big player

in the industry—take a chance on an artist and assume all of the risk makes

signing with a label extremely appealing to new artists who are struggling

to earn a living or are not financially secure enough to dedicate themselves

to their art without a cash influx.

Labels also create an alluring opportunity for new artists because

the labels are known players with ingrained industry relationships. When

an artist signs with a label, that label’s connections with distributors,

producers, publicists, marketers and other industry players suddenly

become accessible to that artist. Not only do labels know the players, but

because of their frequent repeat business, they are able to negotiate credit

agreements and reduced rates that an artist without a label would never be

able to receive for themselves—even if they did find their own initial

access to these business relationships.

Even established and extremely

successful artists do not have the bargaining power of a label against

industry resources because one artist can only provide so much business

volume to a manufacturer or public relations firm.

Beyond these external

connections and reduced-price agreements, many labels have plenty of

Helienne Lindvall, Behind the Music: What Do Record Labels Actually Do?

You’d Be Surprised, GUARDIAN (Feb. 2, 2012, 8:12 AM), https://www.

theguardian.com/music/musicblog/2012/feb/02/behind-music-record-labels; see

David Andrew Wiebe, How Much Advance Do Record Labels Give, and How

Much Should You Try and Get?, MUSIC INDUS. HOW TO,

https://www.musicindustryhowto.com/how-much-advance-do-record-labels-

give-and-how-much-should-you-try-and-get/ (explaining that advances typically

range from $50,000 to $350,000) (last visited May 8, 2020).

Recording Contracts - Getting Started in the Music Business, TEX. MUSIC

OFFICE, https://gov.texas.gov/music/page/tmlp_contracts (last visited May 10,

2020).

Lindvall, supra note 36.

See id. (“I can only imagine walking into a bank asking for a £100,000 loan,

saying: ‘I'd like to use it to pay my living and work expenses for the next four

years, so that I can develop my craft by being able to write full-time and work

with songwriters all over the world. You'll make it back from the royalties the

songs I write during those years will accumulate. And if you don't, I don't have to

pay that money back. What? You need some kind of guarantee? Just listen to these

new songs I've written.’ They'd laugh me straight out of the door.”).

McDonald, supra note 34.

Id.

99 Look What You Made Her Do [Vol. 19

internal teams that can complete a myriad of essential tasks for a

successful artist.

An artist needs a good team, and labels provide

accounting departments, press and marketing teams, and radio pluggers

amongst others.

Like their ability to negotiate down terms with external

partners in the industry, the major labels’ ability to share these costs across

all of their artists allows them to more easily cover the expenses than if an

artist had to cover these costs alone.

These financial and industry advantages often allow labels to

negotiate extremely favorable terms for themselves. Label friendly terms

often include control over an artist’s direction,

ownership of an artist’s

masters, and a large share of the artist’s profits.

Typically, when a new

artist signs with a label, their lack of bargaining power enables the label to

use contracts to extract control over sound, style, and even lyrics from the

artist.

Labels take a large percentage of the profits generated by an

artist’s sales and even own the masters a majority of the time.

While it is

true that record labels take the risk of the upfront costs of production,

recording, talent development, promotion, distribution, etc. and need to

ensure they recoup their expenses, labels often go much further than

simply earning a percentage on top of their expenditures.

Typically, the

initial profits an artist earns will go directly into the label’s pocket as the

recoupment for their advance. Eventually, after paying off their debts to

the label, artists will begin to see royalties as profit from their work—

however, most artist royalty rates in recording contracts are as low as 10–

20%.

This means that even after an artist completely repays the label, the

label still often makes more than the artist from each additional sale of the

recording.

See Lindvall, supra note 36 (quoting Jake Gosling, Ed Sheeran’s producer:

“You still need labels . . . they've got marketing teams, press teams, radio

pluggers, accounts departments and when you get bigger you need help with that

stuff. You need a good team around you.”).

Id.

Commercially satisfactory delivery requirements give the label the power make

acceptance contingent on its determination that the recording is “satisfactory for

commercial exploitation” which gives the label broad discretion over what types

of songs will fulfill an artist’s contractual obligations. DONALD S. PASSMAN, ALL

YOU NEED TO KNOW ABOUT THE MUSIC BUSINESS 117 (10th ed. 2019).

See infra notes 48–50 and accompanying text.

McDonald, supra note 34.

Rosen, supra note 33.

Online Entertainment and Copyright Law: Coming Soon to a Digital Device

Near You: Hearing Before the S. Comm. on the Judiciary, 107th Cong. 154 (2001)

(statement of Richard D. Parsons, Co-Chief Operating Officer, AOL Time

Warner).

Marshall Brain, How Recording Contracts Work, HOWSTUFFWORKS (May 22,

2003), https://entertainment.howstuffworks.com/recording-contract2.htm.

Id.; Chris Vinson, Record Sales: Where Does The Money Go?, BANDZOOGLE

(June 9, 2006), https://bandzoogle.com/blog/record-sales-where-does-the-money

-go (explaining that record labels usually take a 30% royalty on top of the other

No. 1] DUKE LAW & TECHNOLOGY REVIEW 100

For most artists signing their first deal, the label is typically able

to negotiate a contract where the label owns the master recordings as well.

The master is separate from the underlying composition itself but is the

“original sound recording of a piece of music.”

Owning this recording

gives the owner broad power to control how the recording is used.

Often,

the most important control that the master’s owner has is the ability to

control who can get third-party licenses for the recording.

Third-party

licenses can be granted to services like streaming platforms, for use in film

and television, and public performances. The owner of the master splits

the proceeds of these licensing agreements with the composition’s

So, not only is the label profiting off the sales, but it

also has control over where the recording shows up and what it can be used

to promote.

Understandably, many artists want to regain this control for

themselves if they can gain the power to do so.

As artists grow more successful, they typically gain more

bargaining power because they present a strong and established revenue

stream for the label without as much of the initial risk. Artists can often

use their success to renegotiate more favorable terms in their subsequent

contracts.

However, even some of the most famous artists of their time,

and in history, have had great difficulties getting out from under the

control of their labels.

Global superstars like Prince, Jay-Z, and Janet Jackson “have

publicly complained about not owning the physical manifestation of their

work.”

One of the most newsworthy ownership battles was between

Prince and Warner Brothers Records (“WBR”).

WBR released Prince’s

first 18 albums, but as Prince began to lose his artistic control, he very

fees that go directly into their pockets before calculating and paying the artist’s

royalty rate).

Chris Eggertsen, What Are Masters and Why Do Taylor Swift & Other Artists

Keep Fighting for Them?, BILLBOARD (July 3, 2019), https://www.billboard.com

/articles/business/8518722/taylor-swift-masters-artists-ownership-labels-rights-

prince.

Id.

Id. But, the owner of the master “pays out a previously agreed-upon percentage

of that revenue to the artist.” Id.

For voluntary licenses, the owner of the masters has the ability to license the

sound recordings but cannot unilaterally allow a production to utilize the song or

recording because the owner of the composition copyright also needs to license

the underlying composition. The owner of the composition, often the publisher or

songwriter, can unilaterally block sync licenses for her song and therefore a

specific recording of that song and control how it is used in television, films,

commercials, video games, etc. PRACTICAL LAW INTELLECTUAL PROPERTY &

TECHNOLOGY, ET AL., Music Licensing Chart, PRACTICAL LAW CHECKLIST, W-

015-7676 (2021) [hereinafter Music Licensing Chart].

McDonald, supra note 34.

Cullins, supra note 7; see Eggertsen, supra note 51 (providing brief overviews

of Janet Jackson, Jay-Z, Courtney Love, Metallica, U2, Rihanna, Frank Ocean,

and others’ battles with their labels over ownership of their music catalogues).

Eggertsen, supra note 51.

101 Look What You Made Her Do [Vol. 19

publicly tried to get out of his contract.

In 1993, Prince changed his name

to in an act of defiance against WBR and “in order to signal a

fundamental severance from an identity he saw as a wholly owned

commodity of Warner.”

Since Prince’s name change was unsuccessful

in making his contracts unenforceable, he continued his public campaign

against WBR. Further, Prince saw his dispute “in profoundly racialized

terms” and was not merely fighting to renegotiate his contract but fighting

for his “freedom and his own artistic agency” as a black artist under white

label executives.

In fact, Prince wrote “Slave” on his face in protest to

his WBR contract and also famously said that “[i]f you don’t own your

masters, your master owns you,” referring to the label as a slave master

over himself and other artists.

In 1996, once out of his WBR contract,

Prince released an album entitled Emancipation through his own label, and

used the album to rebel against the artistic limits he was under with

WBR.

Prince fought for total control of his music and his art, and even

when he could not achieve it at the negotiating table, he then fought “risky

public battles for it” which paved the way for future artists to follow.

Many artists are still publicly waging these battles for control. In

2019, a group of artists and their estates filed a class action against UMG

seeking $100 million for damages from the destruction of masters in the

2008 fire on the lot of Universal Studios.

Dubbed “the biggest disaster

in the history of the music business,” an unknown number, but reportedly

thousands, of master recordings burned.

For unreleased songs or less

popular artists, these sole copies are now lost to oblivion.

The plaintiffs

Id.

August Brown, What Today’s Artists Learned From Prince’s Approach to the

Industry, L.A. TIMES (Apr. 22, 2016, 2:43 PM), https://www.latimes.com

/entertainment/music/posts/la-et-ms-prince-imaginative-legacy-music-business-

20160422-story.html; Eggertsen, supra note 51 (explaining that the symbol was

called Love Symbol (#2) and forced journalists as well as WBR to jump through

hoops and even create a new font to refer to the artist).

Brown, supra note 60.

Id.; Eggertsen, supra note 51; Jon Pareles, A Re-Inventor of His World and

Himself, N.Y. TIMES, (Nov. 17, 1996), https://www.nytimes.com /1996/11/17/

arts/a-re-inventor-of-his-world-and-himself.html.

Dan Weiss, Prince’s 20-Year-Old ‘Emancipation’ Wasn’t Just an Industry

Kiss-Off, It Was a Going-Away Party, BILLBOARD (Nov. 18, 2016),

https://www.billboard.com/articles/columns/pop/7581348/prince-emancipation-

anniversary-review.

Brown, supra note 60.

Rosen, supra note 33; Colin Stutz, Universal Music Group Hit With Class

Action Lawsuit by Tupac Estate, Soundgarden & More Over 2008 Vault Fire,

BILLBOARD (June 21, 2019), https://www.billboard.com/articles/business/8517

081/universal-music-group-class-action-lawsuit-2008-vault-fire.

Rosen, supra note 33. Notably, A U.S. District Judge dismissed the class action

suit against UMG in April 2020 after the credibility of this NEW YORK TIMES

report on which the parties based theirs claims was challenged for overstating the

damage and loss in the fire. Jem Aswad, Judge Dismisses Soundgarden Litigation

in Universal Fire Lawsuit, VARIETY (Apr. 6, 2020), https://variety.com/2020

/music/news/judge-dismisses-soundgarden-litigation-in-universal-fire-lawsuit-

1234572488/.

Id.

No. 1] DUKE LAW & TECHNOLOGY REVIEW 102

contended that UMG hid the impact of this loss through false public

statements stating that they had “‘only lost a small number of tapes and

other material by obscure artists from the 1940s and 50s.’”

In its motion

to dismiss, UMG argued that since it had full ownership over the masters

it had no obligation to split any insurance proceeds with the artists whose

music was destroyed nor did it “violate any good faith term in their

contracts with artists to keep those recordings safe for the mutual benefit

of musician and label.”

Essentially, UMG argued that when it owns the

masters, the label can do whatever it wants, including destroy them.

III. EVERYTHING HAS CHANGED: THE CURRENT STATE OF THE LAW

ON MUSIC CONTRACTS AND OWNERSHIP

The world is an entirely different place now than it was at the

beginning of recorded music. There have been developments in law,

technology, and society that have significantly impacted the artist-label

relationship. While copyright protection has existed in the United States

since the first Copyright Act was passed in 1790,

developments leading

to modern copyright ownership have critically underlaid many of the

current tensions between labels and artists. Relatedly, recording contracts

have changed significantly since the first one was signed in 1904. This

Section will explore the developments in these areas which have led to the

current state of music ownership and recording contracts. An

understanding of this background provides important contextual

knowledge behind the artist-label dichotomy.

The Copyright Clause of the United States Constitution states that

“Congress shall have the power . . . [t]o promote the progress of science

and useful arts, by securing for limited times to authors and inventors the

exclusive right to their respective writings and discoveries.”

Through

this Clause, Congress enacted the main source of copyright law today: the

The Copyright Act includes protection for

Class Action Complaint, supra note 13, at 9; Anastasia Tsioulcas, Artists File

$100 Million Suit Against Universal Music Over 2008 Fire, NPR (June 22, 2019,

1:13 PM), https://www.npr.org/2019/06/22/734973029/artists-file-100-million-

suit-against-universal-music-over-2008-fire.

Tsioulcas, supra note 68; Jon Blisten, Universal Music Group Files Motion to

Dismiss Class Action Suit Over 2008 Fire, ROLLING STONE (July 17, 2019, 8:22

PM ET), https://www.rollingstone.com/music/music-news/universal-music-

group-files-motion-to-dismiss-class-action-suit-2008-fire-860370/.

Blisten, supra note 69 (“UMG’s position ‘is the same as Donald Trump during

his campaign — that he could shoot someone on 5th Avenue with impunity. And

they think they can set fire to those master recordings on 5th Avenue with

impunity.’”).

Timeline of Copyright Law in the United States: Eighteenth Century, U.S.

_century.html (last visited Apr. 16, 2021).

U.S. CONST. art. I, § 8, cl. 8.

103 Look What You Made Her Do [Vol. 19

original, creative “musical works, including any accompanying words”

fixed in a tangible medium of expression.

For every recorded song there are two copyrights: the musical

composition copyright and the sound recording copyright, also referred to

as the master or master rights.

The musical composition copyright covers

the underlying song, which consists of the music itself, meaning the lyrics,

melody, chords, and other components that would appear on sheet music.

The owner of the musical composition copyright is typically the

songwriter or publisher.

The sound recording copyright covers the actual

recording of a performance of a song (not the underlying composition).

The owners of the sound recording copyright are the performers of the

song.

However, labels often try to contract to own all of a performer’s

sound recording copyrights via “work made for hire” provisions or gain

the rights through assignment when they sign the artist to a record deal.

Ownership of the musical composition copyright comes with five

exclusive rights: to reproduce the work, to distribute copies of the work,

to perform the work publicly, to make a derivative work, and to display

the work publicly.

The sound recording copyright excludes the public

display or public performance rights but includes one additional exclusive

for Musical Compositions, U.S. COPYRIGHT OFFICE, 1, https://www.

May 8, 2020).

Id.; Berklee College of Music Online, How Copyright Works with E. Michael

Harrington, YOUTUBE (Aug. 30, 2018), https://www.youtube.com/watch?v=

pOVlkoi_8FI&list=PL1wHeEmBdcWTbxL2yqQZ2EmwmnEbvFD4b&index=8

[hereinafter How Copyright Works].

How Copyright Works, supra note 76.

PASSMAN, supra note 44, at 329.

these contracts is treated, for all legal intents and purposes, as a work authored by

the label—it is as if the person that actually performed or composed the work does

not exist in the eyes of copyright law. This attempt to define sound recordings

made while an artist is under contract as works for hire has further significance

because works made for hire are not subject to the termination of transfers

provision in the Copyright Act. The termination of transfer provision is an

inalienable pro-artist provision that provides artists the opportunity to get their

rights back after 35 years. Fortunately, because of the requirements for something

to be considered a “work for hire,” this attempt to grab copyright ownership from

an artist under contract does not typically succeed. However, while master

recordings typically are not successfully captured under the “works for hire”

category (despite its continued inclusion in the deals in the hope that it will be

enforceable), labels still achieve ownership over sound recording copyrights

through more simple assignment of ownership rights. Copyright Act of 1976, 17

U.S.C. § 101(2) (2020); PASSMAN, supra note 44, at 307–09; Phillip W. Hall Jr.,

Smells Like Slavery: Unconscionability in Recording Industry Contracts, 25

HASTINGS COMM. & ENT. L.J. 189, 215 (2002).

213.

No. 1] DUKE LAW & TECHNOLOGY REVIEW 104

right: the right to perform the work publicly via digital transmission.

Beyond these rights, the most important consideration for most artists and

interested parties is that copyrights implicate the financial gains of a song’s

success. In the United States, the owner of the musical composition

song whether it be from a license for a live performance, a sale of a

physical copy or digital download, or a stream of the recording.

For the

owner of the sound recording copyright, they will be paid when their

specific recorded performance of the song is purchased or streamed.

and licensing fees.

The four main types of royalties for the composition

and print.

For the sound recording, there are also revenue streams that

come through both compulsory and voluntary licenses which have set

royalty rates and wide ranging negotiated licensing fees, respectively.

Generally, copyright owners will transfer some of their exclusive rights by

licensing or assigning their rights to another party and will then receive

royalties in return.

Royalty distribution between involved copyright

owners, like co-writers or a songwriter and a publisher, are determined in

their own contracts.

So, when a composition is licensed, the songwriters

How Copyright Works, supra note 76. While artists have the exclusive rights,

which would entitle them to payment for uses of their composition, in reality there

are likely many uses that can go uncompensated.

Id.

Rory PQ, How Music Royalties Work in the Music Industry, ICON COLLECTIVE

(last updated May 3, 2020), https://iconcollective.edu/how-music-royalties-work

/#19-the-breakdown-of-copyright-and-licensing.

See id. (explaining that mechanical rights allow a party to physically or digitally

reproduce and distribute the copyrighted work; public performance rights allow a

party to perform or play the copyrighted work in any public place;

synchronization rights allow a party to sync the copyrighted work with visual

media like television, advertisements, music videos, video games, etc.; print rights

allow a party to distribute sheet music of the copyrighted work); see Music

Licensing Chart supra, note 55 (explaining composition sample and karaoke

licenses—two other revenue streams for composition rights holders).

Music Licensing Chart supra, note 55. This provides that the non-interactive

digital public performance license is compulsory, and rights owners received the

set royalty rate as determined by the Copyright Royalty Board. Further, there are

a collection of voluntary licenses—master use license, digital public performance

license, reproduction and distribution license, and the sound recording sample

license—which can range in license fees based on many factors, like the

popularity of the recording artist, due to its voluntary nature. Id.

U.S. COPYRIGHT OFFICE, COPYRIGHT AND THE MUSIC MARKETPLACE: A

REPORT OF THE REGISTER OF COPYRIGHTS 25 (2015), https://www.copyright.gov

/docs/musiclicensingstudy /copyright-and-the-music-marketplace.pdf.

Id. at 19. For example, the common split between a songwriter and publisher

will be 50/50 on the copyright ownership. However, when there are many

songwriters working together to compose a song the division can get quite

complicated as the songwriters will have to negotiate a contract to divide

to negotiate what portion of their share of the copyright will go to their publisher.

105 Look What You Made Her Do [Vol. 19

and publishers will split the royalties and when a sound recording is

licensed the performers and copyright owner (typically the label) will split

the royalties.

However, arrangements on royalty splits can grow

extremely complicated based on the number of parties and the specific

contractual terms drawn between those parties.

While federal copyright law provides many protections for

creators, the contracts between artists and their labels, as well as other

industry players, can have the most significant impact on what an artist’s

career looks like. The artist-label contract plays a significant role in a

musician’s career and financial bottom-line, so understanding some of the

basics of a major label deal will help to contextualize this discussion.

Record labels traditionally made a lot of their income on the large

royalty percentages they received from each record sold by their signed

artists. However, as streaming has replaced physical record sales as the

“dominant revenue source for recorded music,” labels have had to begin

looking elsewhere to recoup their investments and profit off of

representing artists.

The industry has “increasingly moved to so-called

360 deals that place far less emphasis on an artist’s album sales in favor of

taking a cut” from the artist’s other revenue streams like touring,

songwriting, merchandising, endorsements, acting engagements, and

licensing.

The defining characteristic of a 360 deal is all the “income

from revenue streams outside of recordings” in which the labels stake a

claim.

These deals were a product of desperation for record labels as

traditional music sales continued to dwindle year after year.

While the

first hundred years of the artist-label relationship were marked by pure

record deals, now, the standard contract with a major label merely includes

a record deal that is only “one part of the 360 package” that labels compel

artists to sign.

These contracts are called 360 deals because “record companies

. . . want to share in the total pie of an artist’s income” far beyond just their

recorded music.

Donald Passman, a leading music attorney (and no

coincidence, one of Swift’s lawyers), describes the labels’ rationale behind

360 deals as allowing the label that “rocket launch[ed]” an artist’s career

PQ, supra note 85.

PASSMAN, supra note 44, at 1.

Id. at 102; Nilay Patel, Taylor Swift Doesn’t Understand Supply and Demand,

VOX (July 7, 2014, 6:59 PM EDT), https://www.vox.com/2014/7/7/5878

603/taylor-swift-doesnt-understand-supply-and-demand; see also Jeff Leeds, The

New Deal: Band as Brand, N.Y. TIMES (Nov. 11, 2007), https://

www.nytimes.com/2007/11/11/arts/music/11leed.html (discussing how these 360

deals have created some interesting income sources for record labels, like

Interscope Record’s income from a Pussycat Dolls themed Las Vegas nightclub).

Leeds, supra note 93.

Id.

Lee Marshall, The 360 Deal and the “New” Music Industry, 16(1) EUR. J.

CULTURAL STUD. 77, 84 (2012).

PASSMAN, supra note 44, at 101; Sara Karubian, Note, 360° Deals: An Industry

Reaction to the Devaluation of Recorded Music, 18 S. CAL. INTERDISC. L.J. 395,

422 (2020).

No. 1] DUKE LAW & TECHNOLOGY REVIEW 106

to more fully capture its share of the total profits the artist generates.

Passman has explained that many see the 360 contract as “a land grab,

arguing that the company brings no value to the party beyond their record

business expertise.”

This is becoming the industry standard, which an

artist is almost powerless to fight against if they want that coveted advance

and record label backing their name.

100

As an artist’s bargaining power

increases, the artist might be able to reduce the amount of revenue streams

a label insists upon profit sharing. However, today it takes superstar status

to get just a pure record deal from a major label.

101

There is no uniform industry custom governing how 360 deals

work, however, it is seemingly common for labels to require a proportion

of the artist’s net income.

102

There are typically negotiations of precise

percentages for each type of right (songwriting, merchandising, etc.) but

most record labels want a cumulative “10% to 25% of the artist’s net

income from non-record sources.”

103

Labels want to use the highest total

calculation of net-income, typically using the language “gross receipts less

customary, third-party, arm’s length expenses” to ensure that artists cannot

artificially lower their net-incomes.

104

Labels further their goal of keeping

net-incomes high by putting limitations on the total commissions an artist

can pay to their representatives for the purposes of calculating their net-

income.

105

The unique nature of touring results in labels wanting a

percentage of the gross touring income but that often results in a smaller

percentage, typically 5% to 10%.

106

Such a structure makes it possible for

an artist to have to pay the record label even when the artist themselves

loses money on tour.

107

Labels sometimes offer new artists some

protections by “not taking their percentage for monies under a certain

dollar amount,” which is called a shelter.

108

However, as soon as an artist

PASSMAN, supra note 44, at 102.

Id. However, Passman does admit that “record companies are the only ones

spending substantial money to break an artist’s career, so their argument has some

merit.” Id.

100

Id. (“[F]rom the major labels down to the independents, virtually all the

companies are insisting on some kind of 360 rights. Meaning, if you want to sign

a record deal, you gotta live with it.”).

101

Id. at 102–03 (“With enough bargaining power, you may be able to trim back

the 360 pie. Sometimes (actually, it’s becoming ‘rarely’) you can get a ‘180 deal,’

meaning the company only gets a share of one other income stream (songwriting,

touring or merchandising . . .) or two of the three streams (called a ‘270’).

Sometimes, for real superstars or other extremely hot artists, it’s just a record deal.

Or a minimal 360 participation. But it’s getting harder and harder.”).

102

Id. at 103; Marshall, supra note 96.

103

PASSMAN, supra note 44, at 103.

104

Id.

105

Id. at 103–04 (stating that the cap is typically around 30% to 35% of an artist’s

gross earnings, however, some labels set this same percentage cap based on net

earnings which makes it a much tighter squeeze for artists to pay their team under

this cap).

106

Id. at 104–05.

107

Id. at 104.

108

PASSMAN, supra note 44, at 104.

107 Look What You Made Her Do [Vol. 19

earns more than this shelter amount, the record company’s percentage

kicks in and the artist must share from her gross income.

109

IV. I KNEW YOU WERE TROUBLE: SHORTCOMINGS OF CURRENT

LABEL CONTRACTS

Besides the major percentage of profits that labels skim off of

artists’ record sales and their frequent ownership of artists’ masters,

110

the

current dynamic between major labels and recording artists contains a

multitude of other restrictions and dangers for artists. Label contracts can

stifle creativity, limit financial incentives reaching the artist, and

potentially even disrespect an artist’s control of her art.

Working under a major label can stifle creativity for artists in the

form of censorship or controlled decision-making. Labels can interfere

with an artist’s ability to make poignant political or social commentary. In

fact, Billie Holiday was forced to find a specialty label to release “Strange

Fruit,” which protested the lynching of Black Americans in the Southern

United States, since her main record label would not allow her to record

the track.

111

Ice-T went as far as leaving WBR in 1993 over “creative

differences” in the wake of having to pull the song “Cop Killer” off of his

heavy metal band’s album due to label pressure after a wave of protests

against the song began.

112

In 2007, Sara Bareilles felt pressured by her

label to put out a radio-friendly hit so she wrote a passive aggressive retort

to their demands called “Love Song” to push back against their demands

to her to conform to a specific mold of writing pop love songs.

113

Ideally, artists would not be stifled by labels since the United

States values the arts and seeks to incentivize creation and investment by

granting copyright ownership for those who invest themselves in the

arts.

114

While there is debate over who is meant to be the primary

beneficiary of copyright law (e.g., either the creator or the public), the

means of providing the benefit indisputably comes through financial

incentive for the creator through a copyright.

115

Given the complex

109

Id. at 105.

110

See discussion supra Section II.

111

Gabriella Landman, Banned Music: 21 Artists Censors Tried to Silence,

BILLBOARD (Aug. 17, 2012), https://www.billboard.com/articles/list/513610/

banned-music-21-artists-censors-tried-to-silence.

112

Shiela Rule, Ice-T and Warner Are Parting Company, N.Y. TIMES, Jan. 29,

1993, at A1.

113

Genghis Cohen, Sara Bareilles: The Sweet Author of Tough Songs, CBS NEWS

(Jan. 5, 2014, 9:33 AM), https://www.cbsnews.com/news/sara-bareilles-the-

sweet-author-of-tough-songs/.

114

See U.S. CONST. art. I, § 8 (“To promote the Progress of Science and useful

Arts, by securing for limited Times to Authors and Inventors the exclusive Right

to their respective Writings and Discoveries”).

115

See Mazer v. Stein, 347 U.S. 201, 219 (1954) (“The economic philosophy

behind the clause empowering Congress to grant patents and copyrights is the

conviction that encouragement of individual effort by personal gain is the best

way to advance public welfare through the talents of authors and inventors in

‘Science and useful Arts’”); see Mike Masnick, Yes, Copyright’s Sole Purpose Is

No. 1] DUKE LAW & TECHNOLOGY REVIEW 108

representation and ownership structures that recording contracts typically

create, often the artist is not the owner, or at least not the sole owner, of

their sound recording copyright, or masters.

116

So, financial enticements

must be provided through other avenues to continue incentivizing the arts

when copyright law cannot achieve this goal of motivating creation on its

own. However, in the music industry, the monetary incentives that would

typically flow to a creator of a product do not always follow this usual

economic pattern. In fact, in 2010, for every $1,000 artists had in album

sales, the average musician only saw $23.40 go into her pocket.

117

For example, a member of TLC, dubbed “one of the biggest and

most influential R&B groups of the ‘90s” by Billboard, once said “a lot of

people have made money off of us, and we haven’t.”

118

Despite having

one of the decade’s best-selling albums by a girl group, the members of

TLC filed for bankruptcy in the 1990s after receiving only 56 cents for

each album sold—which then had to be divided between the three

members.

119

TLC’s “bad contracts” with their manager and associated

labels, which led to the members’ bankruptcy, exemplify the problem of

letting labels, rather than creators, profit off the creator’s art.

120

Indeed,

when the label, or any intermediaries, reaps the benefit of the creator’s

investment and hard work, this undermines the very purpose of copyright

law and impedes on the incentive structure that the Constitution

established.

to Benefit the Public, TECHDIRT (Apr. 10, 2012, 10:07 AM), https://www.techdirt

.com/articles/20120407/00171418416/yes-copyrights-sole-purpose-is-to-benefit-

public.shtml (arguing that copyright is to benefit the public and not to benefit or

incentivize creators); Scott T. Okamoto, Musical Sound Recordings as Works

Made for Hire: Money for Nothing and Tracks for Free, 37 U. S.F. L. REV. 783,

785–86 (2003) (discussing the purpose of copyright law).

116

Sher Hann Chua & Payton Hoff, Ownership of Master Recordings in the Music

Industry: Swift Winds of Change?, TILLEKE & GIBBINS (Sept. 11, 2019),

https://www.tilleke.com/resources/ownership-master-recordings-music-industry-

swift-winds-change (saying that “[i]t is common for artists to not own their master

recordings.”).

117

Justin Wm. Moyer, Five Problems with Taylor Swift’s Wall Street Journal Op-

ed, WASH. POST (July 8, 2014), https://www.washingtonpost.com/news/arts-and-

entertainment/wp/2014/07/08/five-problems-with-taylor-swifts-wall-street-

journal-op-ed/?arc404=true.

118

TLC Chart History, BILLBOARD, https://www.billboard.com/music/tlc (last

visited May 8, 2020); Carol Cooper, TLC's T-Boz: ‘A lot of people have made

money off of us, and we haven’t’, GUARDIAN (July 8, 2015, 7:00 AM EDT),

https://www.theguardian.com/music/2015/jul/08/rocks-back-pages-tlc-rolling-

stone-1995-t-boz-chilli-left-eye.

119

Keith Caulfield, Rewinding the Charts: 20 Years Ago, TLC’s ‘Creep’ Crowned

the Hot 100, BILLBOARD (Jan. 28, 2015), https://www.billboard.com

/articles/columns/chart-beat/6451114/rewinding-the-charts-20-years-ago-tlcs-

creep-crowned-the-hot-100; The Dark Tale of TLC Going Bankrupt in the ‘90s,

BEAT, https://www.beat.com.au/the-dark-tale-of-tlc-going-bankrupt-in-the-90s/

(last visited May 8, 2020).

120

See The Dark Tale of TLC Going Bankrupt in the ‘90s, supra note 119

(explaining how TLC’s bankruptcy resulted from “bad contracts” with Laface

Records).

109 Look What You Made Her Do [Vol. 19

When new artists approach major labels to negotiate, there is a

very real imbalance of power and labels have been able to use this to trap

more vulnerable parties into nonlucrative and unconscionably one-sided

contracts.

121

The rejection of this manipulative control in other areas could

carry through to the music industry and create a wave of support for artist’s

rights—especially as Swift draws attention to many of the perceived

injustices she faced that many lay persons are shocked to find are rather

commonplace and acceptable in the industry. This heightened public

awareness of the uneven playing field and the impacts it has on people’s

favorite artists could open up an era of opportunity for artists to gain more

in their label negotiations as labels look to avoid public scorn.

V. READY FOR IT?: THE OPPORTUNITY TECHNOLOGY PRESENTS

The relationship between labels and artists has long been rocky,

but with the advent and prominence of social media, artists have the

“ability to really take the dispute to the fan base in a way that was not

[always] possible.”

122

Taylor Swift posted about both of her key conflicts

with Scooter Braun on her social media accounts and set the platforms

ablaze with conversation. This phenomenon is not rare either. The current

technological age creates the perfect storm for artists to take control of

their careers and launch themselves. The combination of social media,

streaming platforms, low-cost high-quality recording and production

programs, and simple online song licensing programs all work together to

put many of the valuable tools that were traditionally only accessible

through record labels within the reach of unsigned artists.

Social media has ways of igniting, influencing, and destroying

careers that likely could not even be imagined at the turn of the century.

Some of the biggest names in music right now launched their careers with

loyal followers and fans that found them through the internet. Justin Bieber

was discovered by Usher and Scooter Braun on YouTube.

123

Shawn

121

See Patricia Tsai, Discovering the Full Potential of the 360 Deal: An Analysis

of the Korean Pop Industry, Seven-Year Statute, and Talent Agencies Act of

California, 20 UCLA ENT. L. REV. 323, (“There has been a lot of discussion about

how 360 deals are ‘slave’ deals and how they are unfair. Some talent managers

think that 360 deals are a ‘thinly veiled money grab’ and are skeptical that labels

will ‘deliver on their promises of patience.’”); Ian Brereton, The Beginning of a

New Age: The Unconscionability of the 360-Degree Deal, 27 CARDOZO ARTS &

ENT. L.J. 167, 168 (2009) (“However, despite such pervasive feelings in the

industry, most struggling musicians still believe that a major label record deal is

the only viable avenue to commercial success. As a result, new artists have been

forced to accept recording agreements that are arguably unconscionable as a

matter of law.”); Todd M. Murphy, Crossroads: Modern Contract Dissatisfaction

As Applied to Songwriter and Recording Agreements, 35 J. MARSHALL L. REV.

795, 806 (2002) (“Both artists and publishers can have a contract nullified through

a decision of a court . . . . [C]ommon assertions by parties seeking to nullify a

contract are unconscionability, undue influence,79 and unequal bargaining power

at the time of contract formation.”).

122

Bhattacharjee et al., supra note 20 (quoting Lisa Alter, a music attorney).

123

Justin Bieber: From YouTube to Global Superstar, CNN (Sept. 3, 2019, 10:40

AM ET), https://www.cnn.com/2019/03/26/entertainment/gallery/justin-bieber

No. 1] DUKE LAW & TECHNOLOGY REVIEW 110

Mendes was discovered on Vine after posting a six-second clip of himself

singing a Justin Bieber song.

124

Chance the Rapper was the first streaming-

only artist to ever win a Grammy, all after his start on SoundCloud without

a label.

125

Halsey leveraged Tumblr, YouTube, and SoundCloud to

kickstart her career before becoming an international superstar.

126

While

these levels of success cannot be expected by all new artists, these success

stories do exemplify the vast potential these sites can create for some

artists.

Social media does not only offer an opportunity for fans to find

artists, but it also allows artists real opportunities to directly reach out and

connect with their fans en masse. Swift is notoriously active on social

media—particularly Tumblr, a microblogging site, which allowed her to

develop one of the largest, loudest, and most devoted fan networks in the

music industry.

127

This type of mass communication has the ability to also

foster deep connections. Swift is known for personal lyrics and often treats

her lyrics like a diary, but this emotional vulnerability and connection does

not stop there—she shares her thoughts and feelings online as well which

helps her foster deep connections with her fans.

128

Swift’s interactions

with fans, including using social media to reward some of her most loyal

or most vulnerable fans, has created a unique community that has only

grown more invested in her next career moves as she feeds into the

fandom’s inside jokes and quirks.

129

/index.html; Gail Mitchell, Usher Introduces Teen Singer Justin Bieber,

BILLBOARD (Apr. 28, 2009), https://www.billboard.com/articles/news/268791

/usher-introduces-teen-singer-justin-bieber.

124

Brittany Spanos, Shawn Mendes: How a Toronto Teen Became the Superstar

Next Door, ROLLING STONE (Apr. 13, 2016, 4:05 PM), https://www.rolling

stone.com/music/music-news/shawn-mendes-how-a-toronto-teen-became-the-

superstar-next-door-237177/.

125

Lyndsey Havens, Chance the Rapper’s ‘Coloring Book’ Is First Streaming-

Only Album to Win a Grammy, BILLBOARD (Feb. 13, 2017), https://

www.billboard.com/articles/news/grammys/7686341/chance-the-rapper-color

ing-book-first-streaming-only-album-grammy.

126

Deepa Lakshmin, Thank You Halsey, For Being a Fan Girl Just Like Me, MTV

(Dec. 4, 2015), http://www.mtv.com/news/2618129/thank-you-halsey-fangirl/;

Paula Mejia, How Halsey Went from Viral Sensation to America’s Buzziest New

Pop Star, ROLLING STONE (Aug. 31, 2015, 5:26 PM), https://www.rolling

stone.com/music/music-features/how-halsey-went-from-viral-sensation-to-

americas-buzziest-new-pop-star-60861/.

127

Avery Blank, Why Taylor Swift is So Influential (And How You Can Increase

Your Influence), FORBES (Nov. 18, 2019, 8:20 AM), https://www.forbes.com

/sites/averyblank/2019/11/18/why-taylor-swift-is-so-influential-and-how-you-

can-increase-your-influence/#11672aeb1020; Abeni Tinubu, Taylor Swift Feels

Like Tumblr Is the Last Place She ‘Can Still Make a Joke’, CHEAT SHEET (Dec.

15, 2019), https://www.cheatsheet.com /entertainment/taylor-swift-tumblr.html/.

128

Blank, supra note 127.

129

See Mark Beach, Taylor Swift, Dolly Parton Donate to Fight COVID-19 As

Music Industry Appeals for Government Action, FORBES (Apr. 2, 2020, 2:21 PM

EDT), https://www.forbes.com/sites/markbeech/2020/04/02/taylor-swift-dolly-

parton-donate-to-fight-covid-19-as-music-industry-appeals-for-government-

111 Look What You Made Her Do [Vol. 19

With all the opportunities social media presents, it is “one of the

best weapons in an unsigned act’s arsenal.”

130

Given this, it is even more

useful to starting, growing, or even established artists because most

platforms are free and some even provide successful users with the

opportunity to profit directly off of their follows and streams on the

platform.

131

The top platforms have a staggering number of active users

(Facebook: 2.7 billion; YouTube: 2.0 billion; Instagram: 1.16 billion;

TikTok: 689 million; Reddit: 430 million; Twitter: 353, million; Snapchat

433 million).

132

This reach, all for free and constantly accessible to artists,

enables artists to create the types of connections that helped build and

solidify Swift’s army of supporters. Artists can create a brand, share their

day, their artistic process, inside jokes, or where their next gig will be

played which can all help artists promote themselves without paying for a

team to do it for them. The internet loves talent and it does not always take

a social media manager desk at one of the major labels behind the

keyboard to help the internet find an artist’s personal page.

As followings begin to form online, artists can turn to other

technological tools in their arsenal to continue positioning themselves for

success. While technology is not equally accessible to all individuals, the

growing prevalence of personal computers and smart phones in the United

States makes the ease of access to cheap software a much more common

reality for the majority of artists in recent years.

133

An artist can kickstart

action/?sh=1a6fb5ea255a (referencing Swift’s direct donations to fans struggling

to pay bills, her support and donations to Feeding America, and her donation to a

Nashville record shop and its employees struggling during the COVID-19

shutdown); De Elizabeth, Taylor Swift Hosts First “Lover” Secret Session in

London, TEEN VOGUE (Aug. 3, 2019), https://www.teenvogue.com/story/taylor-

swift-first-lover-secret-session-london (discussing Swift’s Secret Sessions, a

tradition where she and her team invite fans to listen to and discuss her upcoming

albums with Swift before they are released); Glenn Rowley, All of the Easter Eggs

in Taylor Swift’s Video for ‘The Man’, BILLBOARD (Feb. 27, 2020),

https://www.billboard.com/photos/9324175/taylor-swift-video-the-man-easter-

eggs-cameos (serving as an example of the many Swift pieces that features Easter

Eggs and clues for her fandom to interact with and interpret); Aly Weisman,

Taylor Swift Had an Incredible Response to a Tumblr Meme About Herself,

BUSINESS INSIDER (Sep. 26, 2014, 11:10 AM), https://www.businessinsider.com

/taylor-swift-no-its-becky-tumblr-2014-9 (highlighting Swift’s interactions with

fans online and extending her fandom’s inside jokes into the real world).

130

Mark Haldon, A Guide To Releasing Your Music Without a Label, BRITISH &

IRISH MODERN MUSIC INST. (July 3, 2017), https://blog.bimm.co.uk/a-guide-to-

releasing-your-music-without-a-label.

131

See Thomas Smale, How to Make Money with Social Media, ENTREPRENEUR

(Apr. 27, 2016), https://www.entrepreneur.com/article/274687 (discussing the

opportunities to make money on social media).

132

J. Clement, Global Social Networks Ranked by Number of Users 2020,

STATISTA (Nov. 24, 2020), https://www.statista.com/statistics/272014/global-

social-networks-ranked-by-number-of-users/.

133

See Camille Ryan, Computer and Internet Use in the United States: 2016, U.S.

CENSUS (Issued Aug. 2018), https://www.census.gov/content/dam/Census

/library/publications/2018/acs/ACS-39.pdf (“Among all households in 2016, 89

percent had a computer, which includes smartphones, and 81 percent had a

broadband Internet subscription.”).

No. 1] DUKE LAW & TECHNOLOGY REVIEW 112

her own music career with nothing more than a computer, audio software,

and a microphone.

134

After recording and production are complete, artists have a variety

of options to stream their music to fans. Artists can return to social media

and let their dedicated fanbases preview their songs or simply promote

their new works by posting a link. That link could lead to some of the

many leading streaming sites like Spotify, Apple Music, YouTube,

Amazon Prime, and TIDAL.

135

Unsigned artists do not need to worry

about having industry ties or have any insider knowledge to release their

music on these major platforms—meaning artists do not need a label

backing them to achieve stardom online.

136

Artists simply need to find a

music online aggregator (there are many competing free options) and their

music will be distributed to all of that aggregator’s streaming partners.

137

Before uploading, there is one more step for artists that plan on releasing

something not entirely their own, like a cover, remix, or an original song

including samples—getting the required licenses for these underlying

works.

138

This can be a bit more difficult or expensive than some of the

earlier steps if the artist decides to sample popular songs that will charge

a large licensing fee or more obscure or older records in which the rights

holder is difficult to identify and track down.

139

However, just like all the

steps before, this can also be achieved online without a label in some

cases.

140

Once on the streaming platform, an artist will begin collecting

royalties for each of their streams.

141

Getting on a streaming site is not the finish line though. In fact, in

2013, there were over four million songs on Spotify that had never been

played.

142

While streaming sites create ease of access, they generally do

not promote an artist’s music for them as a label’s traditional marketing

134

Rory Seydel, Why You Don’t Need a Record Label, LANDR (Aug. 21, 2015),

https://blog.landr.com/dont-need-record-label/.

135

But see discussion supra Section VI for some of the criticisms to streaming

platforms artists like Swift have raised and the development of those policies over

time.

136

Haldon, supra note 130.

137

See id.; see also Free Music Distribution: 7 Best Aggregator Services for

Spotify, MASTRNG (Feb. 12, 2020), https://www.mastrng.com/free-music-

distribution/.

138

Haldon, supra note 130 (explaining that Mechanical Licenses are required in

the U.S., that remixes require a Master Use License around the globe, and that

samples require both a Master Use and Mechanical License for worldwide

distribution).

139

See PETER DICOLA & KEMBREW MCLEOD, CREATIVE LICENSE: THE LAW AND

CULTURE OF DIGITAL SAMPLING 155–63 (2011) (explaining the complexity of the

“institutions, processes, and terms involved in sample licensing”).

140

Haldon, supra note 130.

141

See Henry Schoonmaker, How Spotify Streams Turn into Royalties,

SONGTRUST, https://blog.songtrust.com/how-spotify-streams-turn-into-royalties

(last updated Jul. 20, 2020) (explaining how the process of streams turns into

royalties for artists).

142

Mario Aguilar, More Than 4 Million Spotify Songs Have Never Been Played,

GIZMODO (Oct. 14, 2013), https://gizmodo.com/more-than-4-million-spotify-

songs-have-never-been-playe-1444955615.

113 Look What You Made Her Do [Vol. 19

plan would. Generally, streaming services create a place for listeners to

find a song they are already searching for. However, Spotify Playlists,

Pandora, and Apple Music algorithms can highlight new music and

promote it to the users that will appreciate it the most.

143

As an example,

Spotify offers two types of curated playlists that can result in decent

exposure for new artists—personalized playlists and editorial playlists.

144

Personalized playlists, like Discover Weekly or Release Radar, are created

by algorithms that track listener preferences and habits and highlight

targeted selections to fit a user’s taste.

145

Editorial playlists are, on the

other hand, created by music and genre specialists and the Spotify for

Artist page allows artists to submit unreleased music to be considered for

these types of playlists.

146

So, despite not serving as an equivalent for a

promoter, Spotify and other streaming services still provide some

opportunities for new artists to be discovered by interested listeners. As

listeners enjoy the music, artists collect their royalties from the popular

streaming services. In fact, as of 2020, royalties from streaming companies

made up 83% of the music industry’s revenue.

147

While the plays are racking up on streaming services, an artist’s

recognition will continue to rise on the charts as well. With music metrics

like Billboard Charts and RIAA Certifications reacting to and

incorporating the new ways audiences listen to music, listening to songs

on a streaming site or even on YouTube will aid a song’s performance on

the charts and help raise its status for recognition during awards season.

148

Not all streams are equal; an on-demand stream counts more than a

programmed stream and a paid stream counts more than a free one, but all

143

See Vox Creative, Man-Made Machine Music, VERGE (Sept. 23, 2019, 5:25

PM), https://www.theverge.com/ad/20880077/fairness-for-musicians-artists-

music-streaming-algorithms (discussing how streaming platforms make use of

collaborative filtering and audio processing models to make personalized song

recommendations for users based on their tastes).

144

See Spotify for Artists: FAQ, SPOTIFY, https://artists.spotify.com/faq

/promotion#how-can-i-promote-my-music-on-spotify (last visited May 10,

2020). There is also a third type of playlist, one created by the user. Even through

this method Spotify algorithms will suggest similar songs to what is already

comprising the playlist and can put new songs in front of a listener who is already

searching out a specific genre or feel. Id.

145

Id.

146

Id.

147

Anne Steele, Recorded Music Revenue Hits $12 Billion in 2020 Amid

Pandemic Streaming Boom, WALL ST. J. (Feb. 26, 2021 1:31 PM ET),

https://www.wsj.com/articles/recorded-music-revenue-hits-12-billion-in-2020-

amid-pandemic-streaming-boom-11614364260#:~:text=Streaming%20

accounted%20for%2083%25%20of,app%20use%20on%20the%20rise. But see

Blake Montgomery, Fans Are Spoofing Spotify with “Fake Plays,” and That’s A

Problem for Music Charts, BUZZFEED NEWS (Sept. 13, 2018, 2:00 PM),

https://www.buzzfeednews.com/article/blakemontgomery/spotify-billboard-

charts.

148

Billboard 200 to Include Official Video Plays From YouTube, Streaming

Services, BILLBOARD (Dec. 13, 2019), https://www.billboard.com/articles

/business/chart-beat/8546247/billboard-200-changes-youtube-video-data-stream

ing-album-charts.

No. 1] DUKE LAW & TECHNOLOGY REVIEW 114

of them now count toward the top charts.

149

Streaming also equates to an

album sale, with every 1,250 streams counting as if a physical album was

purchased.

150

The Recording Industry Association of America (“RIAA”)

gives album certification awards (Gold, Platinum, Multi-Platinum), and

since 2016 it has also factored streams into its calculations.

151

Artists are

now able to go Platinum without ever signing with a record label and,

through their streaming accomplishments, can stand on the Grammy stage

to receive some of the highest honors in the industry.

152

Artists have been grappling with technology for decades; video

even killed the radio star.

153

But now technology offers a fantastic

opportunity for artists to improve their positions. Leveraging social media

and streaming platforms to build a fanbase, release tracks, and curate a

brand can increase an artist’s bargaining power if she chooses to go knock

on a major label’s door. Technology can even present the chance for artists

to succeed without ever signing with a major label.

154

By taking advantage

of either of these options, artists should be able to bypass some of the dark

sides of the music industry and remain in control of their masters, their

careers, and their lives.

149

Marc Hogan, Billboard Charts Change to Count Paid Streams More Than

Free, PITCHFORK (May 2, 2018), https://pitchfork.com/news/billboard-charts-

change-to-count-paid-streams-more-than-free/?verso=true (“Under the new [July

2018] rules, paid subscription services will count for one full point per play, while

free, ad-supported services will count for two-thirds of a point per play, and

programmed streams will count for one-half of a point. After streaming, radio

airplay is the next biggest part of the Hot 100 formula, followed by digital sales.”).

150

Ben Sisario, The Music Industry’s Math Changes, But the Outcome Doesn’t:

Drake is No. 1, N.Y. TIMES (July 9, 2018), https://www.nytimes.com

/2018/07/09/arts/music/drake-scorpion-streams-billboard-chart.html; see also

Brittany Spanos, RIAA to Count Streaming Towards Album Certifications,

ROLLING STONE (Feb. 1, 2016, 10:50 PM), https://www.rollingstone.com

/music/music-news/riaa-to-count-streaming-towards-album-certifications-

240860/.

151

RIAA Debuts Album Award with Streams, RECORDING INDUS. ASS’N OF AM.

(Feb. 1, 2016), https://www.riaa.com/riaa-debuts-album-award-streams/ (“RIAA

set the new Album Award formula of 1,500 on-demand audio and/or video song

streams = 10 track sales = 1 album sale.”).

152

See id.; see also Havens, supra note 125.

153

See Michelle Starr, The Day That Video Killed the Radio Star, CNET (July 31,

2016, 11:54 PM PT), https://www.cnet.com/news/did-video-kill-the-radio-star/

(discussing the rise of MTV and how television and music videos changed music

in the 1980s); THE BUGGLES, VIDEO KILLED THE RADIO STAR (Island Records

1979).

154

See Melissa Daniels, Why Independent Musicians Are Becoming The Future

of the Music Industry, FORBES (July 10, 2019, 7:08 PM EDT),

https://www.forbes.com/sites/melissamdaniels/2019/07/10/for-independent-

musicians-goingyour-own-way-is-finally-starting-to-pay-off/#6767519a14f2

(“For artists, technological advancements that allow them to share their work with

the world fuels their ability to make music and build their career at their own pace,

and with their own style.”). However, the issue of financing a tour is still rather

difficult without an entity like a record label helping with the large upfront

expenses. Id.

115 Look What You Made Her Do [Vol. 19

VI. GETAWAY CAR: A TIDAL SHIFT

Often, the difference between a “good deal” and a “bad deal” with

a record company rests on how much bargaining power an artist has when

they sit down at the negotiating table. While the most powerful artists have

always had more success avoiding some of the major pitfalls in recording

deals discussed in the sections above, there is a unique moment for the

most powerful artists to help lift up those below them. Recently, artists

have been stepping up to support other artists. Whether in the courtroom,

on social media, in the press, on streaming sites, or within their own record

label, this unity of power with the most powerful superstars leading the

charge is a force that the major labels cannot ignore.

155

From Swift to

Beyoncé, the biggest superstars are starting to disrupt the music industry

and using their influence to impose their will and make a more artist

friendly environment.

Swift has had no shortage of influential moments in the music

industry, and many of her most influential moves are not for her sole

benefit. Swift’s first such move came when she left Spotify in 2014.

156

the eve of the release of 1989, her fifth studio album, Swift pulled her

entire catalogue from Spotify in response to the platform’s decision “to

give full on-demand streaming to customers who weren't paying for a

monthly subscription.”

157

Swift also wrote an opinion piece in The Wall

Street Journal voicing that: “Music is art, and art is important and rare.

Important, rare things are valuable. Valuable things should be paid for . . .

music should not be free” and “[i]n the future, artists will get record deals

because they have fans—not the other way around.”

158

Swift pulled her

155

See, e.g., Derek Eppinger, The Many Proteges of Kanye West, ROOBLA

(Oct. 20, 2019), https://roobla.com/69844/the-many-proteges-of-kanye-west/

(discussing the many artists West helped mentor on their path to success); Cynthia

Littleton, James Taylor to Join ‘The Voice’ as Mega Mentor, VARIETY (Apr. 6,

2020, 6:56 AM), https://variety.com/2020/tv/news/james-taylor-the-voice-mega-

mentor-nbc-april-13-1234571850/ (reporting that Swift will serve as a mentor

alongside Kelly Clarkson, John Legend, Nick Jonas, and Blake Shelton who help

mentor upcoming artists on a weekly basis); Jeff Nelson, JoJo Says Taylor Swift

Sympathized with Her Over Label Lawsuits Years Before Her Own Masters

Drama, PEOPLE (May 4, 2020, 2:40 PM), https://people.com/music/jojo-label-

lawsuit-taylor-swift-sympathized/ (reporting the emotional support Swift

provided to JoJo during a period of great turmoil with her label); Jason Newman,

Taylor Swift Donates $250,000 to Kesha After Court Ruling, ROLLING STONE

(Feb. 22, 2016, 5:13 AM), https://www.rollingstone.com/music/music-

news/taylor-swift-donates-250000-to-kesha-after-court-ruling-123036/

(discussing Swift’s support of Kesha in her sexual assault suit against her

producer, Dr. Luke).

156

Aaron Souppouris, Taylor Swift Shakes Off Spotify, Pulls Entire Catalog,

ENGADGET (Nov. 3, 2014), https://www.engadget.com/2014-11-03-taylor-swift-

spotify-break-up.html.

157

Billy Steele, Spotify is Limiting Free Streaming For its Own Good, ENGADGET

(Apr. 6, 2017), https://www.engadget.com/2017-04-06-spotify-is-limiting-free-

streaming-for-its-own-good.html.

158

Taylor Swift, For Taylor Swift, the Future of Music Is a Love Story, WALL ST.

J. (July 7, 2014, 6:39 PM ET), https://www.wsj.com/articles/for-taylor-swift-the-

No. 1] DUKE LAW & TECHNOLOGY REVIEW 116

music because, in her own words, she was “not willing to contribute [her]

life’s work to an experiment that [she did not] feel fairly compensates the

writers, producers, artists, and creators of this music.”

159

Similarly, Swift did not initially release 1989 on Apple Music

because of Apple Music’s plan not to pay artists royalties during its three-

month free trial period.

160

In response to this move, Swift penned an open

letter to Apple and posted it on her social media accounts.

161

While Swift

would personally benefit from receiving royalties, she also emphasized

that her privilege as a recognized and successful touring artist means she

does not rely on royalties to fund her or her team.

162

However, Swift wrote,

“[t]his is about the new artist or band that has just released their first album

and will not be paid for its success.”

163

The same day Swift made her letter

public, Apple announced that it would change its policy to pay artists

during this free trial period for users.

164

More recently, Swift’s switch from BMR to UMG captured the

attention of the music industry because, in making her deal, Swift not only

future-of-music-is-a-love-story-1404763219. But see Justin Wm. Moyer, Five

Problems with Taylor Swift’s Wall Street Journal Op-ed, WASH. POST (July 8,

2014), https://www.washingtonpost.com/news/arts-and-entertainment/wp/2014

/07/08/five-problems-with-taylor-swifts-wall-street-journal-op-ed/?arc404=true

(“Swift’s supply-side argument—if they come, you can build it—focuses on the

power of social media, but confuses social media with society.”); Nilay Patel,

Taylor Swift Doesn’t Understand Supply and Demand, VOX (July 7, 2014, 6:59

PM EDT) https://www.vox.com/2014/7/7/5878603/taylor-swift-doesnt-under

stand-supply-and-demand, (“the most important lesson of the internet music

revolution is that the vast majority of consumers actually reward convenience.”).

159

Chris Willman, Taylor Swift on Being Pop’s Instantly Platinum Wonder . . .

And Why She’s Paddling Against the Streams, YAHOO MUSIC (Nov. 6, 2014),

https://www.yahoo.com/entertainment/blogs/music-news/exclusive--taylor-

swift-on-being-pop-s-instantly-platinum-wonder----and-why-she-s-paddling-

against-the-streams-085041907.html.

160

Peter Helman, Read Taylor Swift’s Open Letter To Apple Music, STEREOGUM

(June 21, 2015, 10:25 AM), https://www.stereogum.com/1810310/read-taylor-

swifts-open-letter-to-apple-music/news/.

161

Id.; Taylor Swift News (@TSwiftNZ), TWITTER (June 21, 2016, 8:11 AM),

https://twitter.com/tswiftnz/status/745227588537188352?lang=en. The letter has

since disappeared from her own accounts but was documented by many others—

originally published June 21, 2016.

162

Id. (“This is not about me. Thankfully I am on my fifth studio album and can

support myself, my band, crew, and entire management team by playing live

shows.”).

163

Id. (continuing, Swift says, “This is about the young songwriter who just got

his or her first cut and thought that the royalties from that would get them out of

debt. This is about the producer who works tirelessly to innovate and create . . .

but will not get paid for a quarter of a year’s worth of plays on his or her songs.”).

164

Carly Mallenbaum, Apple Music Responds to Taylor: We’ll Pay, USA TODAY

(June 22, 2015, 2:11 PM ET), https://www.usatoday.com/story/life/

music/2015/06/22/taylor-swift-apple-music/29094853/; Chris Welch, Apple Now

Says It Will Pay Artists During Apple Music Free Trial, VERGE (June 21, 2015,

11:51 PM EDT), https://www.theverge.com/2015/6/21/8822369/apple-will-pay-

artists-during-apple-music-trial.

117 Look What You Made Her Do [Vol. 19

advocated for herself but also on behalf of all of UMG’s artists.

165

Swift

announced some of the terms of her deal by highlighting that she would

own her own masters and that UMG will share proceeds from the expected

sale of its Spotify equity with its artists. In this deal, Swift leveraged her

own success to fight for her belief that “streaming was founded on and

continues to thrive based on the magic created by artists, writers, and

producers.”

166

These terms with UMG ensured that the creators and artists

would receive a portion of the money, non-recoupable against their

advance, if UMG ever decides to sell any of its Spotify shares.

167

This

could make a huge impact for less financially successful artists since the

value of these shares is astronomical.

168

Most recently, Swift began releasing the re-recordings of her first

six albums which could act as a warning to record-executives going

forward. Swift’s position as both the songwriter and performer gives her

the ability to record exact replicas of her original albums that can then shut

BMR out of some of the original albums’ future revenue streams.

169

Since

labels rely on their biggest superstars to absorb the risk of signing lesser-

known artists, Swift’s ability to devalue BMR’s ownership of her original

masters through these re-recordings could motivate labels to treat their

artists better.

170

Also, Swift’s introduction of the re-recorded versions of

her back catalogue provides a market alternative for productions wishing

to use her songs in television, movies, and commercials. Swift’s ability to

grant licenses for these purposes, since she has both the sound recording

and composition rights for her re-recorded versions (coupled with her

ability to block BMR’s licensing of the original versions through her

165

Cullins, supra note 7.

166

Joe Coscarelli, Taylor Swift Announces New Record Deal with Universal

Music, N.Y. Times (Nov. 19, 2018), https://www.nytimes.com/2018/11

/19/arts/music/taylor-swift-record-deal-universal-republic.html; Taylor Swift

(@TaylorSwift), My New Home, TUMBLR (Nov. 19, 2018), https://taylorswift

.tumblr.com/post/180277025530/my-new-home.

167

Rachel England, Taylor Swift Ensures UMG Artists Will Profit from Spotify

Shares, ENGADGET (Nov. 20, 2018), https://www.engadget.com/2018-11-20-

taylor-swift-umg-artists-profit-spotify-shares.html.

168

Id. (“Some context. Earlier this year, Sony sold around half of its 5.7 percent

stake in Spotify for $768 million, while Warner Brothers sold 75 percent of its

five percent stake for $504 million.”).

169

See Chris Willman, Taylor Swift Fans Share Notes on How to Make the Old

‘Fearless’ Disappear, VARIETY (Apr. 8, 2021 2:50 PM PT), https://variety.com

/2021/music/news/taylor-swift-fans-fearless-big-machine-disappear-

1234947206/ (discussing the efforts of Swift’s fans to avoid streaming the original

version of Fearless in an effort to limit BMR’s revenue).

170

See Rushe, supra note 9 (explaining Swift’s catalogue accounts for 50–80% of

BMR’s revenues). Theoretically, this could actually work against artists and

encourage labels to demand lengthier exclusivity periods to discourage any timely

re-recordings like Swift’s in the future. However, any lasting impact on industry,

in favor or against artists, remains to be seen. Importantly, it is possible that BMR

could have avoided the financial risk presented by Swift’s revenge by offering

Swift with a more favorable opportunity to purchase the masters of her back

catalogue for their market value rather than making the sale contingent on her

producing six-more albums for BMR to “earn back” her original masters. See

M.H., supra note 9.

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composition copyright rights as the songwriter) makes her new versions a

more desirable target for potential licensees.

171

Through all these moves,

Swift has used her prominence and clout to fight for artists’ rights—

fighting both labels and streaming services to protect herself but also to

protect more vulnerable artists while highlighting the importance of artists

owning their masters.

Beyoncé, another extremely influential artist, has also utilized her

power and wealth to protect vulnerable artists and insulate them from the

threats of major labels and other industry powerhouses. The surprise

launch of Beyoncé’s self-titled album, Beyoncé, on a Friday in 2013 might

be considered her most revolutionary move “not for what it did, but for

what it didn’t do.”

172

Beyoncé broke all the traditional rules of releasing

music and, while her preexisting stardom made it possible to break this

barrier so successfully, it created a roadmap for future artists.

173

To release

this fifth solo album, Beyoncé forwent all the promotional tools and perks

of her major label—despite the industry’s perception that this promotional

“machine” was necessary to successfully launch an album.

174

Beyoncé had

“no radio promotion, no single, no advance press of any kind,”

175

instead

her eponymous album appeared on the iTunes store to the surprise and

delight of fans and debuted at number one on Billboard’s 200 list.

176

The

album sold over 617,000 copies in its first three days and her move is often

credited with switching the music release date from Tuesday to Friday.

177

171

See Music Licensing Chart, supra note 55. As the songwriter of her works,

Swift’s rights as the composition copyright owner give her the power to prevent

her old recordings use in television, movies, and commercials. These fall under

synchronization rights which require the approval of both the composition and

mechanical copyright holder, so Swift can unilaterally block her previous

recordings for these uses while granting licenses for her re-recorded versions

making them the more desirable target for licensees.

172

Zack O’Malley Greenburg, Music Industry Winners 2013: Beyonce,

Streaming, Rap DJs, FORBES (Dec. 30, 2013, 12:49 PM EST),

https://www.forbes.com/sites/zackomalleygreenburg/2013/12/30/music-

industry-winners-2013-beyonce-streaming-rap-djs/#4e587ab9458f.

173

Boogie Bousins, Beyonce Changes the World with Her Surprise Album, STILL

CREW (Dec. 13, 2018), https://stillcrew.com/beyonce-five-year-anniversary-

surprise-album-b7dda0b7fa0a; Henry Knight, Why Beyoncé Speaks for a

Generation, BBC (Apr. 15, 2015), https://www.bbc.com/culture/article/2015

0415-beyonc-voice-of-a-generation.

174

O’Malley, supra note 172.

175

Id.

176

Keith Caulfield, It’s Official: Beyonce Makes History With Fifth No. 1 Album,

BILLBOARD (Dec. 17, 2013), https://www.billboard.com/articles/news/5840086/

its-official-beyonce-makes-history-with-fifth-no-1-album.

177

Andrew Flanagan, Industry Sets Friday as Global Record Release Day,

BILLBOARD (Feb. 26, 2015), https://www.billboard.com/articles/business

/6487289/friday-global-record-release-day-ifpi; Clarisse Loughrey, Adele’s New

Album 25 is No. 1 on iTunes in Almost Every Country in the World, INDEPENDENT

(Nov. 26, 2015, 15:29), https://www.independent.co.uk/arts-entertainment/music

/news/adeles-album-is-no1-in-almost-every-country-in-the-world-

a6749626.html; Kelsey McKinney, New Albums Will Come Out on Fridays

Instead of Tuesdays Now. Blame Beyonce., VOX (Feb. 26, 2015, 2:50 PM EST),

https://www.vox.com/2015/2/26/8116201/friday-new-albums-beyonce.

119 Look What You Made Her Do [Vol. 19

With Beyoncé’s defiance of industry norms, many artists can now question

the necessity of perks that major labels claim to offer and evaluate just

how important those tools are going to be for their career and success.

Beyoncé showed artists there are alternatives to the traditional route and

opened the door for future artists to follow her path.

Beyoncé and Jay-Z, her husband and a music mogul, took their

business and music success in another direction as well when they

acquired TIDAL, which they launched in the United States in 2015.

178

TIDAL was the first artist-owned streaming service and was “founded

with the mission of bringing fans and artists closer together and creating a

sustainable industry model that values music and artists.”

179

And this

mission statement is not just an empty platitude, TIDAL does in fact back

artists in unique ways. First and foremost, TIDAL pays its artists,

producers, and songwriters more for their streams than other platforms, in

part to “ensure music maintains its value.”

180

TIDAL also pays equal rates

to artists no matter who or what type of representation they have, so an

artist on a major label and an artist with no label at all will both be paid

the same for each stream their music generates.

181

Further, TIDAL gives

artists the ability to connect with fans through the platforms TIDAL X and

TIDAL Rising programs.

182

TIDAL X provides artists with opportunities to interact with their

fans in unique ways including events, meet and greets, and exclusive

tickets for events and concerts for TIDAL subscribers.

183

TIDAL X is

available to artists of all notoriety but TIDAL Rising offers even more

benefits to artists trying to expand their fanbases.

184

TIDAL Rising selects

artists to support and provides them with a myriad of benefits beyond just

hosting the artist’s music on the streaming service, including public

relations support, music video support, and premium show placements.

185

One of the most important resources the service offers is Tour Support.

Tour Support is “a fund for TIDAL Rising artists that never has to be re-

couped or paid back” which can help cover the variety of expenses that

178

Sam Sanders, Jay Z’s Music Service, Tidal, Arrives with a Splash, and

Questions Follow, NPR (Mar. 31, 2015, 5:31 PM ET), https://www.npr.org

/sections/therecord/2015/03/31/396634244/jay-zs-music-service-tidal-arrives-

with-a-splash-and-questions-follow.

179

Id.; What is TIDAL?, TIDAL, https://tidal.com/whatistidal (last visited Nov.

15, 2020) (noting that other owners include Alicia Keys, Nicki Minaj, Rihanna,

Jason Aldean, Coldplay, Lil Wayne, and Usher).

180

What is TIDAL?, supra note 179 (explaining that TIDAL pays more than other

streaming services to streaming artist).

181

Id. (“Our artist-owners developed our model so that TIDAL pays the highest

ratio of royalties vs. revenues to music creators of any streaming service, and

equal rates are paid to artists regardless of whether they’re signed to a major label,

an indie label, or not signed to a label at all.”).

182

Id.

183

Id.

184

Id.

185

Id.

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arise from touring.

186

This type of angel investment provides a lot of the

help that young artists seek from labels without the harsh strings and terms

of a contract with one of the major labels.

Beyond Swift and Beyoncé, there are many big-name artists who

have started to give back to younger artists. Big artists do this in a variety

of ways—like serving as a mentor or inspiration, running a streaming

service, voicing support during important moments, or signing young

artists to their own label. The brotherhood of artists in the industry only

helps bolster the opportunity created by technology right now to put the

power in the hands of the artists rather than the traditionally powerful

labels.

VII. IN CONCLUSION, WE ARE NEVER EVER GETTING BACK

TOGETHER

Taylor Swift’s feud with Scooter Braun has left the internet

buzzing over artist’s rights because “[a]ny time Taylor brings attention to

an issue it gets magnified.”

187

Given the current environment, the

technological resources, and the trend of big stars supporting less powerful

artists, now is the perfect time for new and less powerful artists to leverage

all these opportunities. Artists can use these tools to either launch their

careers without label assistance or to at least raise their bargaining power

before approaching the major labels.

188

The power struggle between labels and artists has existed for

decades. As Swift brought attention to her disputes with BMR, the general

population’s consciousness began to consider what artist’s rights should

look like going forward. Artist dependence on major labels is deeply

ingrained in industry practice and these labels offer many real financial

and exclusive opportunities. So, the artist-label dichotomy will never

disappear overnight.

189

The allure of an advance, the draw of industry

expertise and access, and even the appeal of “making it” by signing a deal

cannot be erased instantaneously. But, the era of oppressive label friendly

contracts ought to be behind us. As big artists continue to express their

dissatisfaction and leverage their experience, brand, and connections into

opportunities for new artists, it is time for artists to reap their fair share of

the profits they generate.

The transformation of these artist-label relationships will take

time, but the current technologic and social moment gives rising artists a

186

Id. (explaining how TIDAL will finance artists for touring expenses from hotel

rooms, equipment rental, vans, gas, food, to any other expense that arises from

being on the road).

187

Cullins, supra note 7 (quoting James Sammataro, who represents both artists

and companies in the music industry).

188

Katie Shonk, The Importance of Power in Negotiations: Taylor Swift Shakes

It Off, HARVARD L. SCH.: PROGRAM ON NEGOTIATION DAILY BLOG (Nov. 18,

2019), https://www.pon.harvard.edu/daily/dispute-resolution/dispute-resolution-

with-spotify-taylor-swift-shakes-it-off/.

189

It is notable that despite many of the issues Swift highlighted and her existing

star-power, she still saw it worthwhile to sign with UMG. See discussion supra

Section I.

121 Look What You Made Her Do [Vol. 19

fantastic opportunity to ride the wave of this turning tide. Negotiations are

all about power and who holds the right cards—since labels historically

had the money, security, and connections they have been able to tip

exchanges in their favor. If a label thinks an artist is a safe bet and it will

easily recoup its investment in them, then the need for overly oppressive

contract terms diminishes. New artists can now hopefully avoid oppressive

terms by using the opportunities around them to stack their hand as much

as possible, by creating more certainty in their value, before entering the

contract negotiation process with a major label.

The current landscape allows young artists to prove themselves

before they sign recording contracts and demonstrate that they are not a

risk. This is where the opportunities created by technology, social media,

streaming, and superstar mentors can make a world of difference. Building

up a large fan following, having a lot of streams and followers, and

becoming part of the existing music scene will give young artists the

ability to negotiate better contracts with labels, potentially avoid labels at

all, and remain in control of their artistic integrity by retaining ownership

of their masters.