We Are Never Getting Back Together: A Statutory Framework for Reconciling Artist/Label Relationships

Washington Law Review Online Washington Law Review Online

Volume 98 Article 2

2023

We Are Never Getting Back Together: A Statutory Framework for We Are Never Getting Back Together: A Statutory Framework for

Reconciling Artist/Label Relationships Reconciling Artist/Label Relationships

Harrison Simons

University of Washington School of Law

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Harrison Simons,

We Are Never Getting Back Together: A Statutory Framework for Reconciling Artist/

Label Relationships

, 98 WASH. L. REV. ONLINE 35 (2023).

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Simons (Do Not Delete) 7/19/2023 10:05 AM

WE ARE NEVER GETTING BACK TOGETHER: A

STATUTORY FRAMEWORK FOR RECONCILING

ARTIST/LABEL RELATIONSHIPS

Harrison Simons



Abstract: Taylor Swift could tell you a thing or two about record label drama. Artists like

Swift who want to break into the big leagues and top the charts must rely on record labels’

deep pockets and institutional knowledge to do so. But artists, especially young ones, are often

asked to sign deals with labels that leave them with little control over their careers. For many,

the risk is worth the reward. However, many others come to regret their decision, with careers

that languish or sputter out in label purgatory. Anyone with an ear for the music industry knows

that artist-label relationships are a constant source of industry drama. Taylor Swift’s 2019 feud

with her former label and subsequent decision to rerecord her first six albums brought renewed

attention to the artist-label relationship and the contracts that often serve as its foundation.

While Swift’s own label drama and novel solution worked for her, other artists should not be

forced to go to such lengths to regain control of a career they could not have foreseen when

they signed their recording contracts.

While restructuring the entire music industry will have to wait, lawmakers can and should

intervene to protect young talent from the moment they sign a recording contract—this

Comment explores how. By young artists, this Comment means those who sign recording

contracts as “legal infants,” meaning artists under the age of eighteen. States across the country

allow legal infants to contract with recording labels in exchange for a waiver of their right to

disaffirm the contract because of their infancy. Building on these statutes, lawmakers across

the country should give courts the power to approve recording contracts for short, two-to-three-

year periods. In so doing, lawmakers can reinforce existing protections for artists and labels

alike while simultaneously creating a mediative framework artists and labels can use to address

and solve disputes before their relationship becomes unsalvageable. Should approval lapse,

lawmakers, through the courts, would allow young talent to escape an otherwise inhospitable

contract while remunerating the label for any provable and valid losses.

INTRODUCTION

In August of 2019, Taylor Swift announced her plan to rerecord and re-

release her first six albums.

This was an endeavor to rerecord upwards of



J.D. Candidate, University of Washington School of Law, Class of 2023. First and foremost, I

would like to thank all of the Washington Law Review Editors for their time and patience in helping

me put this Comment together—I could not have done it without you all. Second, special thanks to

Luke Sturgeon who helped mold my passion for Taylor Swift into something worth writing about.

And finally, a huge thank you to Ms. Swift herself. Her music and her tenacity continue to inspire me

in everything I do.

1. John D’Amelio & Tracy Smith, Taylor Swift on “Lover” and Haters, CBS NEWS (Aug. 25, 2019,

4:13 PM), https://www.cbsnews.com/news/taylor-swift-on-lover-and-haters/

[https://perma.cc/FZ3N-36TW].

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36 WASHINGTON LAW REVIEW ONLINE [Vol. 98:35

100 songs, originally recorded over the span of eleven years.

This

colossal undertaking constitutes Swift’s attempt to regain control of her

catalog after her label sold her original masters to third parties.

In so

doing, Swift touched off a renewed debate over long simmering issues of

intellectual property rights, artist-label relationships, and the music

industry at large.

Impossible to overlook in Swift’s struggle were the

facts that this upset came over a decade into an extremely fruitful career,

and that said career began in earnest when Swift signed a recording

contract with Big Machine Records at just fifteen years old.

In other

words, Swift was a “legal infant” when she signed her recording

contract—that is, she was under the age of eighteen, the age at which the

law allows individuals to bind themselves via contract without permission

from a guardian or a court. Swift may be unique in how high her star has

risen, but she is far from the first child to sign away years of labor and

creative control without even being able to vote. Recording artist and

fellow rerecorder JoJo, for example, signed her own recording contract at

an even younger age, just twelve years old.

While JoJo and Swift

experienced varying degrees of success in wresting back control of their

narratives, countless similarly situated artists undoubtedly failed to

succeed at all.

Thankfully, as long as labels have desired to develop and profit off of

young talent, so too have activists and lawmakers stepped in to make the

process more equitable for everyone involved. In some states, courts are

2. TAYLOR SWIFT, TAYLOR SWIFT (BONUS TRACK VERSION) (Big Machine Label Group 2006);

TAYLOR SWIFT, FEARLESS (PLATINUM EDITION) (Big Machine Label Group 2009); Taylor Swift,

SPEAK NOW (DELUXE EDITION) (Big Machine Label Group 2010); TAYLOR SWIFT, RED (DELUXE

EDITION) (Big Machine Label Group 2012); TAYLOR SWIFT, 1989 (Big Machine Label Group 2014);

TAYLOR SWIFT, REPUTATION (Big Machine Label Group 2017).

3. D’Amelio, supra note 1.

4. See, e.g., Ann Herman, Note, You Belong with Me: Recording Artists’ Fight for Ownership of

Their Masters, 18 NW. J. TECH. & INTELL. PROP. 239, 239 (2021) (proposing changes to copyright

law “that would place artists’ rights to ownership and control of their work at the forefront of the

laws’ purpose”); Emily Tribulski, Note, Look What You Made Her Do: How Swift, Streaming, and

Social Media Can Increase Artists’ Bargaining Power, 19 DUKE L. & TECH. REV. 91, 91 (2021)

(discussing how artists can leverage their social media capital in label negotiations).

5. Raisa Bruner, Here’s Why Taylor Swift Is Re-Releasing Her Old Albums, TIME (Mar. 25, 2021,

5:06 PM), https://time.com/5949979/why-taylor-swift-is-rerecording-old-albums/

[https://perma.cc/L9QT-YU4M]; see also Andrew Trendell, The Record Deal that Taylor Swift

Signed When She Was 15 is About to Come to an End, NME (Aug. 28, 2018),

https://www.nme.com/news/music/record-deal-taylor-swift-signed-15-come-end-2371599

[https://perma.cc/5DGX-Y7E6] (explaining that Taylor Swift “signed to Big Machine

Records . . . back in 2006” at just 15 years old).

6. Dee Locket, JoJo Spent Nearly a Decade Fighting Her Label and Won. Here’s What She

Learned, in Her Own Words., VULTURE (Nov. 2, 2015), https://www.vulture.com/2015/10/jojo-

fighting-the-major-label-man-in-her-own-words.html [https://perma.cc/4Q2N-9GTW].

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2023] WE ARE NEVER GETTING BACK TOGETHER 37

given the power to approve contracts between record labels and legal

infants.

Judicial approval serves two main purposes: it (1) prohibits a

legal infant from disaffirming a court approved contract using the infancy

defense and (2) mandates that a certain percentage of an artist’s profits be

set aside, ostensibly to protect the child’s profits from bad-faith guardians

and agents, until the minor reaches the age of majority.

However, the

persistence of artist-label feuds shows that more needs to be done. Using

existing statutes as a foundation, lawmakers across the country should

recognize and protect the less traditional interests young talent signs away

in recording contracts, protecting them from bad-faith labels in the

process. In doing so, lawmakers should remain mindful that recording

contracts codify what can and should be a mutually beneficial

relationship. This Comment proposes a four-part process by which courts

can approve recording contracts and allow arbitrators to play a

supervisory role in ensuring said contract remains beneficial to all parties

for its duration.

Part I highlights attempts by Swift, JoJo, and other artists to wrest

control of their recording catalogs from their respective labels. Part I also

emphasizes the limited utility each artist’s solution—including

rerecording their existing catalogs—would have for lesser-known artists

facing similar circumstances. Part I thus identifies the negotiation of

recording contracts as an area ripe for statutory and judicial intervention,

to better protect the financial interests of burgeoning recording artists.

Part II goes on to expand on the individual interests recording artists and

labels seek to advance and protect through recording contract negotiations

while Part III expands on the infancy doctrine and how it shapes said

negotiations. Then, Part IV introduces two seminal state statutes allowing

for judicial intervention in recording contracts, each of which represent

attempts to balance and protect both the artist and record label’s interests.

Finally, Part V proposes modifications to existing statutes that would

better protect young recording artists’ financial interests, both actual and

potential.

I. RERECORDING: A SOLUTION FOR SOME, NOT ALL

On November 12th, 2021, Taylor Swift released Red (Taylor’s

Version), the eagerly awaited rerecording of her seminal 2012 album Red.

Buried deep among the rerecording’s bonus tracks was “Nothing New,”

“a somber acoustic ballad . . . which grapples with the music business’

7. See infra sections IV(A) and (B) (discussing California and New York’s versions of said

statutes).

8. Id.

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38 WASHINGTON LAW REVIEW ONLINE [Vol. 98:35

famously fickle relationship to young women.”

Originally slated for

Red’s initial release, Swift’s musings on the way women in the music

industry are often “chewed up, spit out, and replaced” presaged her own

label troubles and high-profile conflict with music-manager Scooter

Braun.

Swift, despite her incredible wealth, popularity, and sway in the

music industry,

has also been exposed to the industry’s less savory

corners. In fact, in Swift’s own words: “[f]or years I asked, pleaded for a

chance to own my work.”

Swift considered Braun’s purchase of her

master recordings to be the inevitable climax to an ongoing struggle for

her “life’s work,” her “musical legacy.”

Per Swift, “[t]his is what

happens when you sign a deal at fifteen to someone for whom the term

‘loyalty’ is clearly just a contractual concept,” leaving the music’s value

“beholden to men who had no part in creating it.”

When Taylor Swift signed with Big Machine Records—the deal that

put her on the map and launched her to super stardom—she was just

fifteen years old.

Over the course of thirteen years, Swift released six

albums with Big Machine, in the process becoming one of the most

recognizable and influential names in music.

Considering Swift’s

meteoric rise to fame, her fans might be surprised to learn that all the

while, Swift was fighting to gain ownership of her master recordings.

Big Machine gave Swift the option of renewing her contract and “earning

back” the masters to one of her previous albums for every new album she

recorded under the new contract.

Swift would not own the masters to the

newly recorded albums.

Realizing she would simply be trading

ownership of her new records for ownership of the old ones, Swift let her

Big Machine contract expire in 2018 and signed a new record deal with

9. Olivia Horn, Taylor Swift: Red (Taylor’s Version) Album Review, PITCHFORK (Nov. 15, 2021),

https://pitchfork.com/reviews/albums/taylor-swift-red-taylors-version/ [https://perma.cc/JHX2-

TF25].

10. Id.

11. See D’Amelio, supra note 1 (“After only 13 years in the business, [Swift has] become a musical

force of nature, with an armload of #1 hits, more Grammy Awards than The Rolling Stones,

and . . . the distinction of being the highest-paid celebrity on the planet.”).

12. Taylor Swift, TUMBLR (June 30, 2019), https://taylorswift.tumblr.com/post/185958366550/for-

years-i-asked-pleaded-for-a-chance-to-own-my [https://perma.cc/EW8L-CEHW].

13. Id.

14. Id.

15. Bruner, supra note 5.

16. Id.

17. Swift, supra note 12.

18. Id.

19. Id. (“I was given an opportunity to sign back up to Big Machine Records and ‘earn’ one album

back at a time, one for every new one I turned in. I walked away because I knew once I signed that

contract, Scott Borchetta would sell the label, thereby selling me and my future.”).

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2023] WE ARE NEVER GETTING BACK TOGETHER 39

Republic Records.

Scott Borchetta, Big Machine’s owner, subsequently

sold the label to Ithaca Holdings, a private-equity group “owned by

powerhouse music manager Scooter Braun.”

Braun then sold Swift’s

masters “for a reported $300 million in 2019.”

The sale’s impact was

more than symbolic: “Swift’s master recordings reap profits whenever the

songs are streamed or bought.”

The idea that an artist does not wholly

own the songs she wrote,

and thus neither the right to profit off of those

songs, likely offends most peoples’ commonplace sense of right and

wrong. It is important to note that Swift, as the chief lyricist and composer

on her songs, owns the compositions underlying the master recordings.

The distinction between owning a master recording and the words

underlying it is explored below,

but is mentioned here because Swift’s

ownership of the compositions underlying her catalog’s master recordings

gave her the legal rights to rerecord. Without that ownership, Swift would

have had nothing to rerecord.

Furthermore, many artists do not write or

compose their own music, at least not alone,

meaning they have even

less ownership over the resulting product than artists like Swift or JoJo,

emphasizing the need for more equitable contract terms between artist and

label.

Ultimately, Swift refused to be cowed. Her albums under Republic

Records only increased her stature in the music industry and in August

2019, she announced her plan to rerecord and re-release her first six

albums,

in a strategic effort to thwart the effectiveness of the sale of her

masters and to inspire “young artists or kids with musical dreams” to

20. Id.; see also Taylor Swift (@taylorswift), INSTAGRAM (Nov. 19, 2018).

https://www.instagram.com/p/BqXgDJBlz7d/?utm_source=ig_embed [https://perma.cc/WEW8-

ZUWL] (announcing new record deal with Instagram post featuring Universal Music Group

Chairman/CEO Sir Lucian Grainge and Republic Records co-founder and CEO Monte Lipman).

21. Bruner, supra note 5.

22. Id.

23. Id.; see infra Part II.

24. Due to copyright’s law distinguishing between musical recordings and their underlying

compositions, Swift in fact owned the rights to her compositions (she wrote the lyrics and music to

most of her songs), but not the master recordings of those compositions. See infra section II.B.

25. See infra section II.B.

26. Kyle Kim, We Compared ‘Taylor’s Version’ Songs With the Original Taylor Swift Albums,

WALL ST. J. (Nov. 12, 2021, 10:49 AM), https://www.wsj.com/articles/we-compared-taylors-

version-songs-with-the-original-taylor-swift-albums-11636383601 [https://perma.cc/7K6D-MFVB].

27. See Tim Ingham, Hardly Anyone on the Pop Charts Writes Their Own Music (Alone) Anymore,

ROLLING STONE (Apr. 1, 2019), https://www.rollingstone.com/music/music-features/hardly-anyone-

in-the-pop-charts-writes-their-own-music-alone-anymore-815333/ [https://perma.cc/3CM2-6H5K]

(describing “an overwhelming trend in the music industry over the past decade: the near-complete

decline of the solo singer-songwriter pop hit, and the near-complete dominance of songs written by

committee”).

28. D’Amelio, supra note 1.

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40 WASHINGTON LAW REVIEW ONLINE [Vol. 98:35

“learn about how to better protect themselves in [label] negotiation[s].”

However, Swift is uniquely situated to pull off this sort of gambit. As

TIME magazine put it, “Swift . . . is not the usual artist.”

The COVID-

19 pandemic’s pause on touring gave her the time, her success gave her

the money, and her “meticulous” management of her own image and

deeply loyal fans put her “in the rare position to want to upend the system

and actually have the power to do so.”

Even then, Swift’s rerecordings

were a financial gamble, and their subsequent success does not detract

from the issues that necessitated them in the first place.

Swift is not the only recording artist in recent memory to rerecord her

previous albums. In December 2018,

recording artist JoJo released

rerecordings of her first two albums.

JoJo’s relationship with her original

label, which still owns the albums’ masters, ended poorly and litigiously

years ago.

The label subsequently pulled both albums from streaming

services.

Like Swift, JoJo signed her original record deal at a young

age—just twelve.

And similar to Swift, JoJo looks back on her original

signing with a sense of regret at having been so trusting and naïve. In her

own words: “[w]e really felt comfortable with [the label], like this was

our family.”

Like Swift, JoJo also lamented how young she was when

she made that ill-fated deal: “I was 12 when I got into my contract; my

mom signed it for me and didn’t have any experience in the industry.”

JoJo’s rerecordings did not receive nearly the attention Swift’s

announcement and subsequent re-releases did, highlighting that the

rerecording route, while novel and symbolically powerful, is not a garden

variety solution to the problems that record label contracts can engender.

In fact, Swift might be one of the last big stars to be able to pursue this

29. Swift, supra note 12.

30. Bruner, supra note 5.

31. Id.; see also Horn, supra note 9 (Swift rerecording Red (Taylor’s Version) is “built on the well-

founded belief that her fandom will consume anything spun by her hands—even lightly retouched

versions of songs that came out less than a decade ago.”).

32. JOJO, JOJO (2018) (Clover Music LLC Recordings Dec. 21, 2018),),); JOJO, THE HIGH ROAD

(2018) (Clover Music LLC Recordings Dec. 20, 2018).

33. Taylor Weatherby, JoJo On Rerecording Her First Two Albums After Legal Battle: ‘This Is

Closing a Chapter For Me,’ BILLBOARD (Jan. 1, 2019), https://www.billboard.com/music/pop/jojo-

interview-new-versions-the-high-road-old-albums-8493194/ [https://perma.cc/W99H-CVGJ].

34. See Locket, supra note 6 (“[My label] essentially burned a lot of bridges, and I didn’t want to

keep being a casualty of that.”).

35. See Weatherby, supra note 33 (“[JoJo’s first two] albums were at one time available on

streaming services but the label . . . had long since removed them.”).

36. Locket, supra note 6.

37. Id.

38. Id.

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2023] WE ARE NEVER GETTING BACK TOGETHER 41

route: even as Swift inked a new deal with Republic Records, its parent

company, Universal Music Group “has been effectively doubling the

amount of time that the[ir] contracts restrict an artist from rerecording

their work,” ostensibly to “protect its investments in artists’ work” from

artists inclined to follow in Swift’s footsteps.

While perhaps not a blueprint for the future, Swift and JoJo’s actions

have brought renewed attention to the plight of recording artists whose

careers get stuck in the intricacies of recording contracts, and for whom

more protection is needed. Anyone who works in or follows the music

industry knows that fraught artist-label relations are a staple of the

industry. In other words, the problem of inadequately balanced recording

contracts extends well beyond the bounds of Swift or JoJo’s careers. From

Prince and the Beatles to Lil’ Kim and Kesha, recording contracts have

presented a problem in the industry for decades.

As Swift and JoJo’s

experiences show, young artists are particularly vulnerable to bad faith

bargaining on the part of labels. While Swift and JoJo managed to reassert

control over their careers, it cost both years of work and money, and it is

not hard to imagine how similar circumstances might spell doom for a less

well positioned artist’s career. If recording contracts and their terms are

the problem, then in their negotiations must lie the solution.

II. WHAT’S AT STAKE: A BRIEF OVERVIEW OF RECORD

LABEL CONTRACTS

In order to explore how to improve the recording contract negotiation

process, it is important to understand what is at stake. Part II explains why

record label contracts remain an attractive option for some aspiring artists,

despite the rise of streaming and the democratization of music making.

Then, it gives an overview of how copyright law treats musical recordings

and the stakes it sets. Finally, it explains that an aspiring artist’s less

traditional interests can still impact their overall financial interests and

thus be protected in the contract negotiation phase and beyond.

39. Anne Steele, As Taylor Swift Rerecorded Her ‘Red’ Album, Universal Reworked Contracts,

WALL ST. J. (Nov. 12, 2021, 6:02 PM), https://www.wsj.com/articles/as-taylor-swift-rerecorded-her-

red-album-universal-reworked-contracts-11636741201 [https://perma.cc/3MNY-E5VJ].

40. See e.g., Andrea Park, Musicians v. Record Labels: 14 Famous Feuds, CBS NEWS (Feb. 25,

2016, 4:10 PM), https://www.cbsnews.com/pictures/musicians-v-record-labels-famous-feuds/

[https://perma.cc/KYC8-LJ29] (listing and summarizing fourteen “epic contract dispute[s]” between

recording artists and their labels); Sophie Dodd, 7 Artists Who Have Fought for Ownership of Their

Music, PEOPLE MAGAZINE (July 2, 2019, 7:39 PM), https://people.com/music/taylor-swift-beatles-

prince-artists-fight-ownership-music/?slide=7113316 [https://perma.cc/FCY5-NSQ3] (listing seven

well-known artists who fought with their labels for ownership of their music).

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42 WASHINGTON LAW REVIEW ONLINE [Vol. 98:35

A. Recording Contracts in the Streaming Era

As a preliminary point, some question whether record labels and the

contracts they offer are still necessary in the digital and streaming age.

Those questions are not without merit—as streaming becomes “the fastest

growing area of the [music] business,” and the relative importance of

radio-play

and physical sales diminish, avenues are opening for smaller,

“DIY” (“do it yourself”) artists.

In fact, more “niche” artists satisfied

with a smalltime music career can often “make a living doing gigs,

promoting [themselves] directly to [their] fans, and selling . . . tracks.”

Put simply, artists whose genres limit the size of their audience can profit

more by developing and promoting their music themselves than by

signing with a big-time label.

Artists seeking to break into more mainstream genres, however, might

still consider signing a recording contract. Donald Passman,

a highly

experienced and influential entertainment attorney, explains:

Apart from guaranteeing [aspiring artists] money (so [they] can

avoid sleeping on park benches while creating [their] music), the

record companies have the resources to get [artists’] music heard

over the noise of all the other artists out there—they have staffs

of people with experience in marketing and promotion, and they

will put up the bucks needed to push [an artist’s budding] career.

Also . . . the reality is that no new artist has been able to move

massive amounts of product by using the Internet on their

own. . . . [T]oday it still takes radio airplay and the clout and

expertise of a record company to hit a major home run.

In other words, if a recording artist wants to make the big bucks in the big

genres, they need the kinds of resources only a label can provide. This

maxim is even more salient in the Internet age, in which learning how to

41. Geoff Mayfield, As Streaming Dominates the Music World, Is Radio’s Signal Fading?,

VARIETY (Feb. 10, 7:35 AM), https://variety.com/2021/music/news/radio-signal-fading-streaming-

1234904387/ [https://perma.cc/D6NH-UZMY] (explaining that while “AM/FM radio still owns the

largest piece of America’s audio pie,” in terms of listening, “streaming led all sectors in the fourth

quarter of 2020 with a 33.2% share, compared to traditional radio, which ranked second with a 15.9%

share,” reflecting at least a five-year trend).

42. DONALD S. PASSMAN, ALL YOU NEED TO KNOW ABOUT THE MUSIC BUSINESS xi, 70–72 (9th

ed. 2015).

43. Id. at 71–72.

44. Id. at 72.

45. Id. at back flap (“[Donald S. Passman] practices law with the Los Angeles firm of Gang, Tyre,

Ramer & Brown, Inc., and has specializes intensively in the music business for more than thirty years.

He is frequently cited as one of the most influential people in the entertainment industry . . . .”).

46. Id. at 73. Note, however, that the statements about no artist having made it on their own was as

of 2015, and the Internet’s importance and utility to independent artists has only increased since then.

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2023] WE ARE NEVER GETTING BACK TOGETHER 43

make and distribute music is easier than ever.

Even independent artists

rely on record labels to achieve more traditional accolades, with or

without a recording contract. For example, when Macklemore and Ryan

Lewis’s “Thrift Shop” secured the top spot on the charts in 2013, the duo

emphasized that they achieved the feat without being signed to a major

label.

However, they in fact enlisted the services of Alternative

Distribution Alliance, “an arm of Warner Music Group, one of the most

major of the major labels,” to get the song in stores and played on the

radio.

Ten years after Macklemore and Ryan Lewis reached number one,

the debate over whether an artist needs to get signed rages on.

Thus,

record labels and recording contracts are still necessary for artists aspiring

to the highest levels of success.

B. Who Owns What? Copyright Law and Musical Recordings

Even in 2023, aspiring artists have good reasons to seek out recording

contracts. But what exactly is an artist giving up when they sign a

recording contract? Under U.S. copyright law, ownership of a song has

two distinct facets: the ownership of the musical work (the composition)

and ownership of the sound recording (the master).

Musical works

47. See, e.g., Tim Ingham, DIY Artists Will Earn More than $1 Billion This Year. No Wonder the

Major Labels Want Their Business, ROLLING STONE (May 6, 2019, 11:05 AM),

https://www.rollingstone.com/pro/features/diy-artists-will-earn-more-than-1-billion-this-year-no-

wonder-the-major-labels-want-their-business-830863/ [https://perma.cc/X5ME-WNZB] (describing

an “explo[sion]” of independent artists thanks to streaming and big labels’ desire to capitalize on their

success); Olivia Roos, What’s Bedroom Pop? How an Online DIY Movement Created a Musical

Genre, MSNBC NEWS (Feb. 6, 2020, 1:13 PM) https://www.nbcnews.com/pop-culture/music/what-

s-bedroom-pop-how-online-diy-movement-created-musical-n1131926 [https://perma.cc/V3P7-

CV64] (describing the rise of “bedroom pop” as “fueled by online platforms, easy access to high-

quality music software and algorithmically driven recommendation systems.”).

48. Zoe Chace, The Real Story of How Macklemore Got ‘Thrift Shop’ To No. 1, NPR (Feb. 8, 2013,

1:13 PM), https://www.npr.org/sections/money/2013/02/08/171476473/the-real-story-of-how-

macklemore-got-thrift-shop-to-number-one [https://perma.cc/AL9Z-SJWF].

49. Id.

50. See, e.g., Clovis McEvoy, Unlabelled: Do You Really Need a Record Label to Succeed in

2022?, MUSICTECH (Jan. 14, 2022), https://musictech.com/features/opinion-analysis/unlabelled-do-

you-really-need-a-record-label-to-succeed-in-2022/ [https://perma.cc/UQY2-74L3] (describing the

role music streaming technology has both empowered independent artists and skewed profits towards

major labels); Amy X. Wang, An Indie Music Expert Explains Why Artists Are Turning Away From

Record Deals, ROLLING STONE (Nov. 1, 2018, 10:36 AM),

https://www.rollingstone.com/pro/news/ditto-music-lee-parsons-interview-749510/

[https://perma.cc/YPF7-Y2SL] (highlighting modern, highly visible, and successful independent

artists).

51. U.S. COPYRIGHT OFF., Copyright Registration of Musical Compositions and Sound

Recordings, https://www.copyright.gov/register/pa-sr.html [https://perma.cc/JQ6E-6DD7] (“For

RECORDINGS.”).

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44 WASHINGTON LAW REVIEW ONLINE [Vol. 98:35

“cover[] the publishing side: the words, melody and underlying

composition.”

Master recordings, on the other hand, are “the original,

official and final recording of a song, sound or performance, from which

all later copies are made.”

Put simply, the composition is the words and

music that make up the song, while the master is the first recording of

those words and music. As the U.S. Copyright Office’s website makes

clear: “Copyright in a sound recording is not the same as, or a substitute

for, copyright in the underlying musical composition.”

Owning a master recording gives the label, or license holder, the right

to choose how and when the recording is used in subsequent media,

performances, and if or how it is made available on streaming services.

NPR points out that “[i]t’s uncommon for artists not of Swift’s stature to

own their masters; instead, the label’s ownership of those materials is

generally the centerpiece of any major-label contract.”

Ultimately, this

means a song can belong to both its author and their label. Split ownership

is usually the case when a recording artist writes their own music and

lyrics but relies on a label to record and distribute the results. For example,

when Ryan Adams, a recording artist, released a cover album of Swift’s

1989, “[h]is own label . . . control[led] the recording’s copyright,”

whereas “Swift and the other owners of the publishing side receive[d]

royalties” each time Adams’ covers are streamed, sold, licensed, etc.

Meanwhile, Adams’ label would have to approve requests to use Adams’

recordings in a commercial, or movie, for instance.

Also relevant here are rerecording restrictions, that is, “agreements

between an artist and label that stipulate the artist can’t rerecord a song

52. Kim, supra note 26.

53. Elizabeth Vulaj, Singing a Different Tune: Taylor Swift & Other Artists’ Fight for Music

Ownership, 27 NO. 12 WESTLAW J. INTELL. PROP. 02 (2020).

54. U.S. COPYRIGHT OFF., supra note 51 (explaining copyright registration for musical

compositions and sound recordings).

55. Id.; see also Copyright Act of 1976 § 106, 17 U.S.C. § 106 (“[T]he owner of copyright under

this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the

copyrighted work in copies or phonorecords . . . (3) to distribute copies or phonorecords of the

copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of . . . musical . . . works, to perform the copyrighted work publicly; (5) . . . to display

the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted

work publicly by means of a digital audio transmission.”); Kim, supra note 26. (“Owning the sound

recording means owning the master recording. Owning the masters allows you to control, for

example, how a master is duplicated and distributed across digital and physical formats.”).

56. Andrew Flanagan & Anastasia Tsioulcas, Taylor Swift’s Former Label Big Machine Is Sold,

Rankling The Star, NPR (July 1, 2019, 12:01 PM) (emphasis added),

https://www.npr.org/2019/07/01/737613627/taylor-swifts-former-label-big-machine-is-sold-

rankling-the-star [https://perma.cc/KX9L-FGW8].

57. Kim, supra note 26.

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2023] WE ARE NEVER GETTING BACK TOGETHER 45

for a certain period.”

Most recording contracts contain rerecording

clauses.

Otherwise, artists like Swift, who write and compose their own

music, could immediately circumvent a label’s master ownership by using

the underlying composition to rerecord an identical version of the song.

That is exactly what Swift did when the rerecording restriction in her Big

Machine contract expired in November 2020.

Changing the paradigm of

label control over master recordings seems unlikely, at least in the short

term, and thus such a proposal is beyond the scope of this Comment.

So what do artists get, exactly, if not ownership of their masters? Rather

than ownership, artists are entitled to royalties from sales of their songs—

however, they may not enjoy royalty payments until a label recoups the

advance typically paid to artists to create their first products under a

recording contract, as well as any other “recoupable costs,” such as the

cost of recording.

Passman points out that a “New Artist,” defined as

someone “who has never before had a record deal, or . . . never sold more

than 100,000 [records] . . . with a minor social media presence,” will

enjoy only 13% to 16% percent of the price paid for their recordings.

Taylor Swift and JoJo, neither of whom had released an album before their

initial signings, were likely “new artists” at fifteen and twelve,

respectively.

Even “superstars” enjoy only up to 20%.

With such small

percentages, the incentive to make it big is even stronger. These small

percentages also highlight that what an artist is really getting from a major

label is access to resources, industry contacts and expertise, and a shot to

rise above the noise of all the other artists trying to make it big. Therefore,

especially at the early stages of their careers, young artists seeking record

deals have a lot to gain, but everything to lose, and a long road before they

see the kinds of returns on their investments that Swift and JoJo likely

enjoy today.

C. Losing More than a Master: Nontraditional Interests at Stake

The rights to their master recordings are rarely, if ever, the only thing

58. Id.

59. Id.

60. Id.

61. For an example of such a proposal, see Herman, supra note 4 (proposing “a property rights

model of copyright law, in which the creator of a work is entitled to ownership of it.”).

62. Tribulski, supra note 4, at 97–98 (describing label advances to new artists); see also Passman,

supra note 41, at 86–88 (discussing the relationship between royalty payments, advancements, and

other “recoupable costs”).

63. Passman, supra note 41, at 92–93.

64. Id. at 94.

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46 WASHINGTON LAW REVIEW ONLINE [Vol. 98:35

a young artist signs away when they contract with a record label. As

Passman explains, “[r]ecord deals are traditionally structured with the

company having the smallest obligation that it can negotiate, while

keeping the option to get as much product as possible.”

Practically

speaking, this means that “a company may commit to record one

album . . . then have the option to require an additional four or five

albums, each one at the [label’s] election.”

Passman stresses that these

option contracts “are only good for the record company” because “[i]f [the

artist is] a flop, [they’ll] never see the money” and “if [they’re] a success,

it will probably be less than [the artist is] worth.”

In other words, each

new record presents the label with the choice to either drop the artist if

they are underwhelmed by their performance, or record another album—

on the label’s terms.

Applying this structure to JoJo, Swift, and other artists makes clear that

new artists sign over more than masters when they ink a record deal—

they also relinquish some amount of creative control over their work, as

well as the right to steer their own careers. These losses can impact the

artist’s financial interests. For example, when JoJo first signed her label

deal, “[i]t was a dream come true.”

However, “[w]ithin the first few

months of signing, [JoJo] started hearing horror stories from other artists

who used to be signed to the label.”

Those rumors did little to stop JoJo

from releasing her first two albums, both of which propelled her to the top

of the charts.

Following the release of her second album, however,

JoJo’s relationship with her label began to deteriorate. After a series of

departures, deal-shifting, and opaque explanations on the label and

business side of things,

JoJo found her career in a sort of “purgatory.”

JoJo’s label refused to release any of her new music, with little offered by

way of explanations. In JoJo’s own words:

It would’ve been a lot easier, almost, if [the label had] just said,

65. Id. at 108.

66. Id.

67. Id. at 110.

68. Locket, supra note 6.

69. Id.

70. See Janaya Williams, ‘Good To Know’: JoJo On Coming Out Of Hardship With First New

Album Since 2016, NPR (May 3, 2020, 5:29 PM), https://www.npr.org/2020/05/03/849327006/good-

to-know-jojo-on-coming-out-of-hardship-with-first-new-album-since-2016 [https://perma.cc/F3EN-

CKVX] (“JoJo was just 13 years old when her song ‘Leave (Get Out)’ hit No. 1 on the Billboard pop

charts in 2004 . . . ’Too Little Too Late,’ . . . made it even further to No. 3 on the Hot 100 . . . . “).

71. See Locket, supra note 6 (describing JoJo’s loss of distribution rights at Interscope, the

departure of JoJo’s original signer, and emphasis on courting other the up-and-coming artists like

Drake).

72. Locket, supra note 6.

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2023] WE ARE NEVER GETTING BACK TOGETHER 47

“We hate your new music, we think it sucks.” Because then I

could’ve been like, “Okay, tell me what sucks about it, what you

don’t like, and let’s fucking get back in there and do something.”

My work ethic has never been the issue.

Whether it was the label’s own allegedly precipitous business dealings or

some creative disagreement that held up any further official music

releases is almost beside the point: the bottom line is that JoJo’s career

and financial interests were suffering.

JoJo made as much clear when she sued her former label to try and get

out of her contract. In a complaint filed against her former label, JoJo

claimed that by delaying the release of her third album, her label was

causing her to miss out on not only typical financial interests like touring

and merchandise, but also less traditional interests such as “the ability to

make connections with important people” and the chance to maintain

“favorable publicity.”

In fact, JoJo’s suit expressly stated that “time is

of the essence.”

JoJo’s complaint continued:

The optimum age for an artist like JoJo to appeal to [a young adult

demographic] is limited, and each day that JoJo is prevented from

controlling her career in the manner of her choosing so that she

remains relevant to and connects with this particular fan base, is

a day lost that cannot be recovered.

As a later interviewer put it: “[a]fter acquiring a core fanbase of tweens

and young adults while herself a teen, a decade later, [JoJo’s] singing for

girls in their early 20s. The pop window is closing.”

Facially, at least, the ability to dictate the substance and timing of one’s

art might not seem like a financial interest, nor might the ability to

network and capitalize on one’s popularity. But, as JoJo’s situation makes

clear, a label can exert financial control over an artist by delaying an

album or dictating the direction they want an artist to take. Remember,

one of the big draws of label contracts is the resources they afford an

otherwise struggling artist. In fact, reflecting upon her label troubles, JoJo

explained her continued reliance on major labels: “I know I could’ve [self-

released music], but I don’t think it would’ve gotten the type or response

73. Id.

74. Shirley Halperin, JoJo Sues to Break Free of Label; Claims ‘Irreparable Damage’, THE

HOLLYWOOD REPORTER (July 31, 2013, 9:40 PM),

https://www.hollywoodreporter.com/business/business-news/jojo-sues-break-free-label-597349/

[https://perma.cc/S248-82RH].

75. Complaint at 8, Levesque v. Da Family Records, No. 652643 (N.Y. Sup. Ct. July 29, 2013)

[hereinafter Levesque Complaint].

76. Id. at 8–9.

77. Halperin, supra note 74.

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48 WASHINGTON LAW REVIEW ONLINE [Vol. 98:35

that I wanted.”

She continued: “I’m in pop music, and I still think having

the support of a major label is really beneficial.”

One might wonder

whether JoJo, whose star was ascending following her first two albums,

might not have ascended even higher than where she is today, had her

label facilitated, rather than obstructed, her plans for her third album.

Frank Ocean, another popular recording artist, and his experience with

his former label further demonstrate how control over all aspects of one’s

career can impact an artist’s financial interests. Ocean released his

critically acclaimed debut album, Channel Orange, in 2012, but it would

be another four years before he released a follow-up project.

Ocean had

signed a two-album deal with his label in 2009, meaning that following

2012’s Channel Orange, he owed his label one more album.

In the

middle of 2016, Ocean released Endless, a video album, through his label,

thus satisfying his contractual obligation to them.

The following day, he

released Blonde, which “stormed the charts entering at the number one

spot of the Billboard 200 charts” and “net[ing] about $2 million in sales

alone,” not a cent of which would go to his former label.

Needless to

say, Endless did not perform nearly as well.

In an interview following the double-album drop, Ocean explained his

motivations for getting out of his contract and releasing Blonde

independently: “Anytime you get into the business side of the arts, there

has to be some degree of objectification or commodification that you’re

comfortable with, of yourself and of your work.”

Presumably, Ocean

wanted to avoid any objectification or commodification of Blonde.

However, as even this brief timeline shows, it took Ocean years and the

simultaneous creation of two albums to reassert control over his music.

Albums, of course, do not materialize out of thin air, and Ocean likely

spent much of his own money to create the two albums and outwit his

label—money that the label ostensibly should have been investing in

78. Locket, supra note 6.

79. Id.

80. Miles Khanye, How Frank Ocean Finessed Def Jam & Apple Music Out of $20,000,000, TITLE

MAG (Oct. 13, 2020), https://title-mag.com/frank-ocean-finesse/ [https://perma.cc/HZ49-FH7F].

81. Id.

82. Id.

83. Id.

84. Ed Christman, How Much Money Frank Ocean Has Made In the Past Week (and His Former

Label’s Potential Take, Too), BILLBOARD (Aug. 29, 2016), https://www.billboard.com/music/music-

news/how-much-money-frank-ocean-blonde-endless-debut-week-1-7-million-def-jam-7488063/

[https://perma.cc/9N6P-NUXA] (estimating that Endless generated between $13,000 and $157,000

in revenue for Def Jam, Ocean’s label, and between $2,352.06 and $28,224.72 in revenue for Ocean).

85. Tom Jackson, Frank Ocean, GAYLETTER (Apr. 20, 2019), https://gayletter.com/frank-ocean/

[https://perma.cc/BFU7-HC4Z].

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2023] WE ARE NEVER GETTING BACK TOGETHER 49

Ocean’s vision, and money that a better-negotiated and modified contract

might have saved him.

While Swift does not present as clear-cut an example as JoJo or Ocean,

the analogy is not difficult to draw. It bears repeating that Swift’s success

has been attributed in part to her meticulous management of her image—

had Big Machine treated Swift like JoJo’s label treated her, Swift might

never have reached her current level of success. Furthermore, recall that

in Swift’s own words, the fight for her masters was more than a fight for

profits: it was a fight for her “life’s work,” her “musical legacy.”

One might argue, then, that Swift was fighting for the “moral rights” to

her music. Not widely protected in the United States, “moral rights”

“refer[] . . . to the ability of authors to control the eventual fate of their

works.”

“Moral rights protect the personal and reputational, rather than

purely monetary, value of a work to its creator.”

The concept of moral

rights, then, recognizes that there is value, monetary and otherwise, in the

control of an artist’s work, whether that work manifests as an album or

overall career trajectory. Even where the value is non-monetary, its

control can have very real financial effects, as addressed in the examples

above. Ultimately, while Swift has succeeded in her rerecording venture,

she might not have had to do so if protective statutes existed when she

initially signed her contract.

III. INFANCY AND ENTERTAINMENT CONTRACTS

A lot is at stake when an aspiring artist seeks a recording contract—this

is true whether the aspiring artist is twelve, twenty-two, or seventy-two.

However, it almost goes without saying that twelve and fifteen-year-olds

are at an inherent disadvantage when sized up against major record labels.

In fact, both Swift and JoJo have spoken on how their youth negatively

impacted their initial contract negotiations.

Besides the inherent

bargaining imbalance between children and major companies, it is

difficult for any party to a recording contract to foresee how successful an

artist might become, or what form that success will take. Who knew, in

2006, that a young country singer by the name of Taylor Swift would

become one of her generation’s most iconic popstars? And who could

have foreseen that a twelve-year-old JoJo would go on to record one of

the millennial generation’s most iconic break-up songs—”Leave (Get

86. Swift, supra note 12.

87. Betsy Rosenblatt, Moral Rights Basics, HARV. L. SCH. (Mar. 1998),

https://cyber.harvard.edu/property/library/moralprimer.html [https://perma.cc/KW2K-Y8XX].

88. Id.

89. See supra Part I.

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50 WASHINGTON LAW REVIEW ONLINE [Vol. 98:35

Out)”? When one looks at JoJo and Swift’s careers side-by-side, one

naturally wonders if JoJo might not have reached similar heights as Swift,

had her label not withheld her third album just as she was reaching the

peak of her initial fame. Thus, any protections for young artists must

consider both what they are giving up in recording contracts and their

legal infancy.

Generally speaking, to enter into any valid contract, each party must

have the legal capacity to do so. The Restatement (Second) of Contracts

states that “[n]o one can be bound by contract who has not legal capacity

to incur at least voidable contractual duties.”

The same section also

specifies that among those persons who lack capacity to contract are

“infant[s].”

Thus, “[u]nless a statute provides otherwise, a natural person

has the capacity to incur only voidable contractual duties until the

beginning of the day before the person’s eighteenth birthday.”

States

will statutorily set this “age of majority,” or “the age at which a minor

generally acquires the right to enter into a valid contract.”

Across the

United States, the “most prevalent age of majority is eighteen” years of

age.

The legal infant’s right to disaffirm contracts has come to be known as

“the infancy doctrine.”

Under that doctrine, a “minor has the right to

disaffirm a contract [they] may have entered into with an adult during the

period of [their] minority.”

In the modern era, the doctrine has been

distilled into “a general rule that all contracts entered into by minors can

be disaffirmed by the minor before reaching the age of majority.”

The

doctrine is based on an objective standard, meaning that if and when the

court applies it, the only inquiry it must make is whether or not the party

seeking disaffirmance was in fact a minor when they entered into the

contract.

While the doctrine is “still largely in effect today,” it has been

adapted to better suit “modern times,” such that “[c]ourts no longer rigidly

apply [it]” and “instead . . . balance equities and employ a number of

90. RESTATEMENT (SECOND) OF CONTRACTS § 12(1) (AM. L. INST. 1981).

91. Id. § 12(2).

92. Id. § 14 .

93. John H. Shannon & Richard J. Hunter, Jr., Principles of Contract Law Applied to Entertainment

and Sports Contracts: A Model for Balancing the Rights of the Industry with Protecting the Interests

of Minors, 48 LOY. L.A. L. REV. 1171, 1176 (2015).

94. Id.

95. Id. at 1177.

96. Id.

97. Victoria Slade, Note, The Infancy Defense in the Modern Contract Age: A Useful Vestige, 34

SEATTLE U. L. REV. 613, 617 (2011) (citing Donald T. Kramer, 1 LEGAL RIGHTS OF CHILDREN § 10:1

(rev. 2d ed. 2005)).

98. Shannon et al., supra note 93, at 1177.

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exceptions to the infancy defense.”

Among the various exceptions to the doctrine,

100

the most relevant here

is the “benefits exception,” which “allows minors to disaffirm contracts

on the condition that they make restitution of benefits received.”

101

While

this exception might, on its face, seem to dampen the power of the infancy

doctrine, it might also serve, within the framework explored below, as a

counterbalance to a legal infant’s power to disaffirm a contract. States

vary in how they apply the doctrine and its exceptions, but the doctrine,

in its most basic form, provides robust protections for legal infants. Thus,

when a court finds the infancy doctrine applicable to a particular contract,

legal infants are afforded an almost unilateral avenue to disaffirmance.

102

This powerful protection presents a problem to record labels who might

want to contract with minors. In fact, one of the purposes of the doctrine

is to “protect minors from ‘foolishly squandering their wealth through

improvident contracts with crafty adults who would take advantage of

them in the marketplace.’”

103

Replace “minors” with “young recording

artists” and “crafty adults” with “major labels” and the problem—signing

away artistic and financial control of a career before it even begins—

becomes clear. Both federal and state law, however, have addressed the

so-called “infancy defense” (i.e., application of the infancy doctrine by

the infant) by prohibiting its use in certain situations, as will be explained

below.

104

Some state statutes allow a state court to “approve” contracts

between legal infants and entertainment entities, with such approval

providing some protection to the child’s financial interests while

simultaneously prohibiting disaffirmance of the approved contract on

infancy grounds. However, as this Comment will explain, the threat of the

doctrine could provide the backstop necessary to effectuate the revised

statutory framework proposed below.

IV. CALIFORNIA AND NEW YORK ATTEMPT TO STRIKE A

BALANCE

The infancy defense, from its common law inception, has proven to be

a thorn in the side of those wishing to contract with legal infants. The

entertainment industry, dependent as it is on young talent, is particularly

99. Slade, supra note 97, at 615–17.

100. Id. at 617.

101. Id. at 617–18.

102. For more information, see Part II of Shannon et al., supra note 93, at 1176–80 (“Basic

Principles of Contract Law Under a Common Law Analysis”).

103. Slade, supra note 97, at 617 (quoting Halbman v. Lemke, 298 N.W.2d 562, 564 (Wis. 1980)).

104. See infra Part IV.

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52 WASHINGTON LAW REVIEW ONLINE [Vol. 98:35

vulnerable to such a defense. This uncertainty, however, has been

addressed at both the federal and state level.

At the federal level, the Fair Labor Standards Act (FLSA) prohibits the

use of “oppressive child labor,”

105

but excepts from this prohibition “any

child employed as an actor or performer in motion pictures or theatrical

productions, or in radio or television productions.”

106

“Because there is no

‘special [federal] legislation for [child performers], the area is not pre-

empted and states are free to legislate for minors in the entertainment

industry.’”

107

Thus, states can statutorily modify the infancy doctrine.

108

For example, the California Supreme Court upheld the constitutionality of

such statutory modifications in Ex parte Weber.

109

The Court explained

that “[i]t is competent for the [l]egislature to provide regulations for the

protection of children of immature years.”

110

As this section will show,

other states have enacted statutes like California’s to modify the common

law infancy defense. In fact, this Comment focuses on state responses to

contracting minors, due in large part to the FLSA’s exception for children

working in the entertainment industry.

Employment contracts in the entertainment industry are “unique” in

ways that the statutes explored below are meant to address.

111

First, the

infancy doctrine makes deal-making with minors inherently risky, given

that the doctrine amounts to a get-out-of-jail-free card in many

instances.

112

Second, younger artists (and new artists in general) require

record labels to make “significant investment of both money and

effort . . . on training and publicity,” not to mention development of the

music itself.

113

Third, the music industry often depends on multi-year or

multi-album contracts with minors.

114

That means a label’s financial

investment in an aspiring star who later disaffirms the contract on infancy

doctrine grounds represents a huge potential loss that most major labels

would refuse to accept, at least not without some assurances against

105. 29 U.S.C. § 212(c).

106. Id. § 213(c)(3).

107. Erica D. Munro, Comment, Under Age, Under Contract, and Under Protected: An Overview

of the Administration and Regulation of Contracts with Minors in the Entertainment Industry in New

York and California, 20 COLUM.-VLA J. L. & ARTS 553, 556–57 (1996) (quoting Gerald Solk, Legal

Rights and Obligations of Minors in the Entertainment Industry: The California Approach, 4 J. JUV.

L. 78, 80 (1980)).

108. Id.

109. 86 P. 809 (Cal. 1906).

110. Id. at 810.

111. Shannon et al., supra note 93, at 1180.

112. See supra Part III.

113. Shannon et al., supra note 93, at 1180 (quoting Munro, supra note 107, at 555).

114. Id. at 1181 (quoting Munro, supra note 107, at 555).

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disaffirmance.

115

All the while, the artists themselves are contending with

the label’s outsized bargaining power. A label’s institutional knowledge

of the recording industry, connections to that industry, and seemingly

cavernous pockets all help cement a label’s superior bargaining

position.

116

This imbalance is exacerbated by unequal levels of experience

and knowledge: signing talent and writing contracts is a label’s bread and

butter, while the same process might feel and read like legalese to

potential talent who are unlikely to have experienced such a situation

before.

117

States attempt to strike a balance between protections for both the label

and minors’ interests.

118

California and New York, both long-time,

important hubs in this country’s entertainment industry, led the way in

enacting statutes addressing entertainment contracts between minors and

record labels. While theses statutes aim to protect the interests of all

parties involved in a recording contract, the experiences of Swift, JoJo,

and other artists highlight the need for more robust protections for young,

aspiring artists.

119

The following sections explore each of these two

seminal statutes, focusing on the most applicable provisions to recording

artists and labels as well as the sometimes-divergent rationales that courts

and commentators attribute to each of the statutes.

A. California Sets the Bar

California’s law, called “Coogan’s Law,” was named after the famous,

early twentieth-century child actor Jackie Coogan.

120

Coogan, who was

discovered by Charlie Chaplin and starred in Chaplin’s The Kid, “reached

the age of majority and only then realized that his parents had spent most

of his earnings,” because, under then California law, “money that a child

earned . . . belonged to his parents as a matter of law.”

121

In response to

the “publicity and public outcry for reform” following Coogan’s failed

attempt to recoup his earnings, California passed Coogan’s Law in

1939.

122

The law codified an exception to the infancy doctrine, an

important point for record labels. The exception prohibited contract

115. Id. (quoting Thom Hardin, The Regulation of Minors’ Entertainment Contracts: Effective

California Law or Hollywood Grandeur?, 19 J. JUV. L. 376, 378 (1998)).

116. Tribulski, supra note 44, at 97.

117. Id.

118. Shannon et al., supra note 93, at 1181.

119. See supra notes 65–86 and accompanying text.

120. Shannon et al., supra note 93, at 1181–82.

121. Id. at 1181.

122. Id. at 1181–82.

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54 WASHINGTON LAW REVIEW ONLINE [Vol. 98:35

disaffirmation based on infancy “where such contract has been approved

by the superior court of the county where such minor resides or is

employed.”

123

As for the recording artists themselves, Coogan’s Law

“granted a court the power to require the formation of a trust fund or

savings plan in conjunction with the court’s approval of a contract.”

124

addition to trust formation, Coogan’s Law allowed the court approving a

recording contract “continuing jurisdiction over the [minor’s] earnings,”

with the power to “terminate or amend” any remuneration plan it

approved pursuant to the law.

125

Specifically, “[t]he court shall have

continuing jurisdiction over the trust established pursuant to the order and

may at any time, upon petition of the parent or legal guardian, the

minor . . . or the trustee or trustees, on good cause shown, order that the

trust be amended or terminated.”

126

An important corollary statute in

California’s Labor Code provides that contracts “to render personal

service[s],” including recording contracts, “may not be enforced against

the employee beyond seven years from the commencement of service

under it.”

127

Over the years, Coogan’s Law was amended by the state legislature.

Overall, amendments to Coogan’s law aimed at further securing a minor’s

earnings such that the minor’s “assets were in fact preserved for the

benefit of the minor.”

128

In 2000, the California legislature amended

Coogan’s Law so that it “now covers all contracts, not just those approved

by the courts,” thus “ensur[ing] that a child’s money will always be set

aside in a trust fund and that the trust cannot be touched by anyone but the

child.”

129

Courts may still approve recording contracts, however, and

123. CAL. LAB. CODE § 1700.37 (West 2011); see also CAL. FAM. CODE § 6751 (West 2022) (“A

contract, otherwise valid . . . entered into during minority, cannot be disaffirmed on that ground either

during the minority of the person entering into the contract, or at any time thereafter, if the contract

has been approved by the superior court in any county in which the minor resides or is employed or

in which any party to the contract has its principal office in [California] for the transaction of

business.”).

124. Shannon et al., supra note 93, at 1182 (citing CAL. CIV. CODE §§ 36.1–36.2 (Deering’s Supp.

1939) (codified at CAL. FAM. CODE § 6752 (“[T]he court shall require that 15 percent of the minor’s

gross earnings pursuant to the contract be set aside by the minor’s employer in trust, in an account or

other savings plan, and preserved for the benefit of the minor . . . .”)).

125. Id.

126. CAL. FAM. CODE § 6752(b)(7) (West 2022).

127. CAL. LAB. CODE § 2855(a) (West 2022).

128. Shannon et al., supra note 93, at 1187.

129. Id. (citing CAL. FAM. CODE § 771(b) (“[T]he earnings and accumulations of an unemancipated

minor child related to a contract of a type described in Section 6750 shall remain the sole legal

property of the minor child.”)); see also CAL. FAM. CODE § 6750(a) (West 2022) (“This chapter

applies to [certain entertainment] contracts entered into between an unemancipated minor and any

third part or parties on or after January 1, 2000[.]”).

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approval is required before the infancy doctrine exception applies.

130

Many commentators writing about California’s law and the need for its

continued improvement stress the need for additional protection of the

minor’s financial interests, or its extension to cover discrete kinds of

contracts.

131

B. New York Follows Suit

Another haven for entertainment, New York followed California’s lead

and amended its Arts and Cultural Affairs Law (ACAL) to protect minor

entertainers, using Coogan’s Law as a model.

132

As such, New York’s

additions to its ACAL were “promulgated by concern over the need to

uphold minor contracts and protect their earnings.”

133

New York’s law

sets guidelines that record labels can follow to receive court approval of

recording contracts, limiting said approval to three-year terms, with

extensions available upon a showing that the minor is adequately

represented by a knowledgeable attorney.

134

Furthermore, the law states

that a court may withhold approval unless a portion of the minor’s net

earnings are saved for the minor’s benefit.

135

In 2004, the New York state

legislature required court approval of minors’ contracts, whereas

previously court approval was sought at the contracting parties’

discretion.

136

Like Coogan’s Law, New York’s statute states that

recording artists whose contracts are approved by a New York court

pursuant to its protective statute “may not, either during [their] minority

or upon reaching . . . majority [age], disaffirm the contract on the ground

of infancy or assert that the parent or guardian lacked authority to make

130. See CAL. FAM. CODE § 6751(a) (“A contract, otherwise valid, of a type described [by this

Chapter], entered into during minority, cannot be disaffirmed on that ground either during the

minority of the person entering into the contract, or at any time thereafter, if the contract has been

approved by the superior court . . . .” (emphasis added)).

131. See, e.g., Munro, supra note 107, at 554 (focusing proposal on strengthening existing

protections rather than expanding types of interests protected); Dayna B. Royal, Jon & Kate Plus the

State: Why Congress Should Protect Children in Reality Programming, 43 AKRON L. REV. 435, 460–

61 (2010) (arguing that these protective statutes should protect a child’s psychological welfare); Ben

Davis, Comment, A Matter of Trust for Rising Stars: Protecting Minors’ Earnings in California and

New York, 27 J. JUV. L. 69, 81 (2006) (focusing on success of existing statutes to argue for their

expansion to other states); Shannon et al., supra note 9393, at 1171 (arguing that laws protective of

entertainers should also protect athletes).

132. Davis, supra note 131, at 76.

133. Id.

134. Id.; N.Y. ARTS & CULT. AFF. LAW § 35.03(2)(d) (McKinney 1998).

135. N.Y. ARTS & CULT. AFF. LAW § 35.03(3)(a) (McKinney 1998).

136. Davis, supra note 131, at 77.

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56 WASHINGTON LAW REVIEW ONLINE [Vol. 98:35

the contract.”

137

To seek court approval under New York’s law, the minors’ parent,

parents, or legal custodian must provide written consent to submit to the

court’s approval process.

138

Additionally, New York courts are

empowered to “make considerations involving the best interests of the

minor,”

139

and can, at any time during the approved period, “either revoke

its approval of the contract, or declare such approval revoked unless [there

is] modification of the contract which the court finds to be appropriate.”

140

The best interests being protected, however, are generally financial

interests, as evidenced by the statute’s emphasis on a minor’s finances:

the statute speaks in terms of savings plans and net earnings, rather than

emotional or physical wellbeing.

141

In fact, even when the statute speaks

to “the support, care, [and] education . . . of the infant,” it does so only to

ensure that the minor’s net earnings cover those needs.

142

The statute also

establishes criteria for savings plans benefitting the minor, like Coogan’s

Law, and even gives the approving court “discretion to fix the amount or

proportion of net earnings it deem[s] in the best interest of the minor,”

with potential to modify “upon subsequent application.”

143

Like those

analyzing California’s law, many of the commentators writing about New

York’s law emphasize the need for additional protection of the minor’s

financial interests, or its extension to cover discrete kinds of contracts.

144

This overlap in scholarship is unsurprising—New York took its cue to

amend its ACAL from California, after all.

145

New York courts too, have stressed the statute’s aim at balancing the

137. N.Y. ARTS & CULT. AFF. § 35.03 (McKinney 1998).

138. Id. § 35.03(2)(c).

139. Davis, supra note 131, at 77; N.Y. ARTS & CULT. AFF. LAW § 35.03(2)(e) (McKinney 1998).

140. N.Y. ARTS & CULT. AFF. LAW § 35.03(2)(e).

141. See generally id. § 35.03.

142. Id. § 35.03(3)(c)(ii).

143. Davis, supra note 131, at 77 (citing N.Y. ARTS & CULT. AFF. LAW § 35.03 (McKinney 1998)).

144. See, e.g., Jesus Cisneros, Comment, Leveling the E-Sports Playing Field: An Argument in

Favor of Government Regulation to Ensure Fair Player Contracts for Young Professional Gamers in

E-Sports, 58 CAL. W. L. REV. 333, 353 (2022) (arguing that section 35.03, and other statutes like it,

should be amended to “cover[] . . . professional E-sports gamers”); Kristin A. Hoffman, Comment,

Flipping and Spinning into Labor Regulations: Analyzing the Need and Mechanisms for Protecting

Elite Child Gymnasts and Figure Skaters, 25 MARQ. SPORTS L. REV. 565, 577–78 (2015) (noting that

while New York’s law ensures “children . . . have access to their money,” it does not adequately

regulate the actual labor performed by children subject to the law, and thus does not adequately

account for the children’s “health and well-being”); Ariel Tacher, Note, The Real World: Child Labor

and Reality Television, 20 CARDOZO J. L. & GENDER 489, 518–19 (2014) (“[S]tates with prevalent

television production such as California and New York[] need to specifically define ‘reality

television’ within their child entertainer laws.”).

145. See supra note 130 and accompanying text.

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interests of minors against the investments of record labels. For example,

in Caballero v. Anselmo,

146

the court identified the statute as one example

of New York’s “pervasive policy . . . to protect the rights and interests of

infants and minors.”

147

Just two years later, in Matter of Twentieth

Century Fox Film Corp,

148

the New York courts reiterated that stance,

with more emphasis on the balancing aspects, explaining the statute’s

two-fold purpose: the “purpose of the statute is to bestow upon the infant

an advantage of which [they] would otherwise be deprived by law, i.e.,

the ability to be bound by contract” but also “to permit the party

contracting with an infant to be as confident of the survival of the contract

as if the infant had reached majority.”

149

As recently as 2002, the New

York courts, in Matter of Applications of Atlantic Recording Corp.,

150

reiterated that the purpose of court approval of recording contracts was

two-fold: (1) ”‘to provide a degree of certainty for parties contracting with

infants in the entertainment industry so that the validity of such contracts

would not be rendered doubtful or subject to subsequent litigation

concerning reasonableness’ and ‘to completely eliminate the power to

disaffirm under certain circumstances,’” and (2) to determine “what part

of the contract remuneration should be set aside for” the minor.

151

C. Attempts and Proposals to Expand Protective Statutes

Both the artists regulated by these statutes and the scholars who study

them have interpreted them in novel ways that would better protect

aspiring artists’ interests. For example, JoJo’s initial recording contract

was approved by a court in New York, under its ACAL.

152

When JoJo’s

label, Blackground, delayed the release of her third album, JoJo attempted

to disaffirm her contract with them by suing under New York law.

153

JoJo

“allege[d] that she[] [was] legally allowed to break free of Blackground

and Da Family because she’d signed with them as a minor, and laws in

both New York and California stipulate that . . . JoJo could not be bound

146. 759 F. Supp. 144 (S.D.N.Y. 1991).

147. Id. at 152.

148. 601 N.Y.S.2d 267 (App. Div. 1993).

149. Id. at 270.

150. 747 N.Y.S.2d 889 (Sup. Ct. 2002).

151. Id. at 892.

152. See Levesque Complaint, supra note 75, at 3 (“On March 17, 2004, the Surrogate’s Court

granted the Petition For Approval as requested.

As a result, JoJo was precluded by law from

disaffirming the Recording Contract at any time during her minority or upon turning into an adult on

December 20, 2008.”).

153. See generally id.

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58 WASHINGTON LAW REVIEW ONLINE [Vol. 98:35

to [the court approved contract] after a period of seven years.”

154

JoJo

eventually settled with her label,

155

but her reliance on the law underscores

its potential for further artist protections. Without fuller access to JoJo and

her label’s court filings and overall strategies, it is impossible to say for

sure, but it is certainly possible that relying on the statute gave JoJo

leverage. Perhaps her label realized, in the face of New York’s statute,

that their case was not as airtight as they imagined, and settled rather than

bear the cost of protracted, and potentially unsuccessful litigation.

Much has already been written on these statutes, and how to revamp

them, but the scholarly focus has remained on protecting the narrowly

defined financial interests of minors. For example, in arguing for federal

protection of children on reality television, one scholar wrote of Coogan’s

Law: “[t]hough [it] is fairly protective of minors, [Coogan’s Law] is rather

one-dimensional in its economic focus . . . fail[ing] to address the

psychological harm child actors are often forced to endure.”

156

While that

scholar’s focus was on expanding statutory protections to cover a

nonfinancial interest—mental health and wellness—the scholar at least

identified an inherent limitation in both California and New York’s

statutes: neither has been adequately adapted to protect minors beyond

their most basic and traditional financial interests. This Comment adds to

the existing scholarship on these statutes by proposing modifications that

would better protect artists like JoJo. Specifically, it proposes that the laws

be modified so that the financial interests they ostensibly protect are more

broadly defined, and thus account for the myriad ways in which labels, as

opposed to self-interested parents and agents, can affect an artist’s bottom

line. Specifically, the financial interests protected on behalf of the artist

should include both the unrealized potential and uncapitalized popularity

that an artist possesses when they sign a recording contract.

V. ANALYSIS: A STATUTORY SOLUTION

The problem thus identified is two-fold: ensuring contract security for

labels and financial security for artists. On the one hand, emerging artists

need major labels’ resources and industry knowledge to break into the

154. Halperin, supra note 74; see also Levesque Complaint, supra note 152, at 6 (“By claiming

that the Recording Contract remains in full force and effect, Defendants have caused and are causing

JoJo to suffer irreparable damage to her professional career by depriving her of the benefits of Section

35.03 which reflects the considered public policy of the State of New York that under no

circumstances shall a person who is a minor at the time of contract approval by the Court be obligated

by law to perform or render services under that contract for a period of more than seven (7) years

from the date of approval.”).

155. See Locket, supra note 6.

156. Royal, supra note 131, at 460–61.

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mainstream. But those same artists usually must give up a lot more than

they are guaranteed to receive to get access to the label’s wealth and

knowledge. Labels, on the other hand, are being asked to invest time and

money in an artist that has no guarantee of being profitable for the label.

That these emerging artists are often under the age of majority only

compounds both parties’ risk. The results, as illustrated above, are often

lopsided deals that allow a label to exert creative and career control over

the emerging artist, potentially affecting the artist’s bottom line, and with

few viable avenues to resolution for the artist should the label exert too

much power over the artist.

Some states, California and New York chief among them, used statutes

to address the problem. Generally speaking, these statutes allow

contracting parties to seek judicial approval of their contracts. Judicial

approval serves two main purposes: (1) it prohibits a legal infant from

disaffirming a court approved contract using the infancy defense; and

(2) mandates that a certain percentage of an artist’s profits be set aside,

ostensibly to protect the child’s profits from bad-faith guardians and

agents, until the minor reaches the age of majority. Despite these

longstanding statutes, artists still find themselves beholden to a label’s

whims, often to their detriment, as Swift’s, JoJo’s, and other artists’ own

label troubles illustrate. Specifically, while a certain portion of an artist’s

gross profits may be protected in a court mandated trust, that protection is

aimed against guardians and agents who might take advantage of the legal

minor, rather than at the label. Furthermore, the emphasis on protecting

an artist’s profits shows that these statutes generally aim to protect the

traditional manifestation of an artist’s financial interests, and do not

directly address how other aspects of an artist’s financial interests, outside

profits, can suffer at the hands of a label acting in bad faith. As the

previous sections highlighted, an artist’s finances are directly affected by

how much or how little creative control a label exerts over an artist.

As the explanation of JoJo’s label troubles in section II(c) highlighted,

a label’s stifling of an artist’s career might stem from many factors: inter-

label business problems, disagreements over creative directions, or simply

bad timing. Still, one might ask why a label would do something it knows

will kill an artist’s career when the label also stands to gain financially

from the artist’s success? Because, ultimately, the label has very little to

lose during the early stages of an artist’s career. As section II(c) also

pointed out, recording contracts—based as they are on options—can

provide the minimum resources necessary to get a young artist started and

then simply elect not to record another album should they be unhappy

with the results. Presumably also, labels have rosters of artists sufficient

to support them, assuming one single artist’s career is stalled, for whatever

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60 WASHINGTON LAW REVIEW ONLINE [Vol. 98:35

reason. The artists, however, likely have a single label, the proverbial

basket into which they deposit all their eggs.

Thus, the following sections propose modifications to existing statutes

that would result in a four-fold process aimed at creating a more equitable

and mutually beneficial process by which labels and the artists they sign

can air their grievances and, under the court’s neutral and watchful eye,

solve them as equitably as possible. First, the statutes should recognize

that financial interests beyond pure profits are worthy and in need of

judicial protections. Second, the statutes should require court approval for

all recording contracts between a legal infant and a record label. That

approval should be for short, two-to-three-year terms. Third, the statutes

should outline an arbitration process by which artists can seek non-judicial

intervention upon a showing that a label is acting unreasonably or in bad

faith, affecting the financial interests of the legal minor in the process.

Finally, should the arbitration process fail, the statutes should allow for a

reinstatement of the infancy defense once the term of the court’s approval

ends. This defense would incentivize the label to negotiate with the artist

in good faith to reach an equitable solution, lest they lose the chance to

capitalize on the artist’s potential. To balance this powerful incentive, the

statutes should codify a variation of the benefits exception to bar artists

from waiting out the court-approved contract term just to disaffirm the

contract. To illustrate this process, each of the following subsections will

make a proposal on how the statutes should be modified and then apply

the theoretical modification to the experiences of the artists explored

above.

A. Step One: Protecting More than the Money

As a preliminary but important matter, state legislatures should

recognize, explicitly, that an artist’s financial interests manifest

themselves in more than just gross profits. For Taylor Swift, they

manifested in the right to control when and how her music is used. For

JoJo, in the ability to say what kind of music she was making and when.

For Ocean, in the ability to make the album he wanted to make without

compromise. In recognizing these less obvious but no less impactful

manifestations of an artist’s financial interests, state legislatures would be

using their power to protect those interests.

As they exist, Coogan’s Law and New York’s equivalent laws focus on

protecting purely financial interests from bad faith guardians or agents.

To do so, both statutes require that a certain percentage of an artist’s

profits be set aside in a trust, subject to specific conditions. However, as

some artists’ experiences show, it is not only bad faith guardians or agents

that can affect an artist’s bottom line—labels have that power, too.

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Furthermore, a label can wield its power to affect an artist’s profits before

those profits even materialize to be safeguarded in the statutorily

mandated trust. One reason for the existing focus on profits is likely that

dollars and profits are easy to quantify. Furthermore, the laws in question

were enacted, in part, to respond to newsworthy instances where a

guardian or agent, rather than a label, took advantage of a burgeoning star.

By contrast, the interests explored above are much harder to quantify, and

arose not from bad faith guardians but the labels themselves. How, then,

does one create a definition for “financial interests” that is broad enough

to account for and protect interests beyond money itself, but not so broad

that major labels will refuse to accept and play by the new rules?

The first step would be to foster a cooperative atmosphere between

artists and labels. State legislatures should begin by working with artists

and labels to identify what financial interests would be recognized and

protected by these modified statutes. Ensuring that labels have a seat at

the table, so to speak, increases the likelihood the modifications adopted

will actually guide future contracts. In terms of the quantification

challenge, short approval periods, explored below, is one potential

solution. Additionally, any statutory definition might focus on contractual

manifestations of creative and career control. For example, perhaps labels

might be willing to allocate some percentage of a project to the artist’s

control—be it one or two tracks on a debut EP or sole songwriting or

production credit on said tracks. Alternatively, the modified statutes might

require that artists account for how a label’s investment is being used, and

how the return on the label’s investment will materialize. Finally, perhaps

the statutes could recognize the label’s ownership of the masters but

prohibit the exercise of that right to block already published and streaming

work from existing streaming services.

Assuming that JoJo’s contract had been approved pursuant to statutes

modified as just suggested, her label would have had to account for why

her third album never materialized despite her best efforts. Whatever the

label’s reasoning, having some idea of its ability to support her career

could only have bolstered JoJo’s arguments to get out of her contract.

Furthermore, even in a worst-case scenario, the label’s inability to remove

JoJo’s first two albums from streaming services would have preempted

her later need to rerecord the works. Furthermore, it might also have

bolstered her career by keeping her early works alive in the notoriously

short-term memory of pop music. Finally, it would have provided JoJo

some monetary dividends.

B. Step Two: Court Approval for Short Terms

Having recognized and protected financial interests more varied than

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pure profits, state legislatures should then modify the statutes in two ways:

(1) require court approval for short terms (two to three years); and (2) set

up an arbitration-like process to address grievances that arise between an

initial approval and subsequent renewal hearings.

1. Working with Labels to Ensure Compliance with Mandatory

Approval Process

As a preliminary point, artists and labels would continue to construct

contracts as they generally have, and then present the contracts for court

approval. While much could be said about the contracts, their terms, and

the need for industry reform, this Comment assumes that the contracts

being approved by courts contain the “usual” terms and rights broadly

illustrated in Part II.

After signing the recording contract, the artist and record label would

petition their local state court for approval of said contract, much as they

would under the existing statutes. As the first proposed modification,

court approval of contracts between legal infants and record labels should

be required. This would benefit artists by ensuring access to an ostensibly

neutral forum and arbiter for contract negotiations, while also protecting

labels from unilateral disaffirmance by the artist on infancy grounds. To

further streamline the approval process and assuage those concerned with

wasting judicial resources, the legislature might work with labels and

artists to identify the most commonly “contested” or “controversial” terms

of a recording contract. For example, as part of its expansion of what

constitutes an artist’s financial interests, state legislatures might provide

examples of both contract terms and their practical effects, both positive

and negative. By working with artists and labels in expanding these

definitions and examples, state legislatures would benefit from the

specialized and institutional knowledge both sets of parties would bring

to the table. Overall, the regularity with which labels draft and sign these

contracts, and the provision of examples of questionable and model terms

by parties with institutional knowledge, would help streamline the

approval process. A court presented with a recording contract would more

quickly be able to identify by itself the terms its focus should be on,

allowing for quicker approvals.

As a matter of fact, California’s Coogan’s Law applies to all such

recording contracts, whether approved by the court or not. Other states

should enact statutes with the same terms, and states that already have

similar statutes should require court approval of all such contracts. By

requiring approval, the legislature and courts would help streamline the

process of signing young, new artists and ensure more equitable contract

terms to begin with, the rationale being that labels would know their

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contracts would be seen by the courts and potentially challenged by the

artist. In fact, the legislatures could work with labels and artists to create

“model” contracts and allow near automatic approval of said contracts

when presented by the signing parties.

Importantly, at this preliminary approval stage, the statutes should

make clear that the courts are not to modify or comment on the terms of

the contract unless they are prima facie unconscionable. New York’s

statute, in fact, requires that courts not modify the contract unless such

modification is acceded to by all parties. For labels to support such a

statutory scheme, they would likely need assurances that their freedom to

contract would not be hampered, at least not at this preliminary stage.

Section IV(c) explained how JoJo’s contract was approved under state

statutes, and how it is difficult to tell whether Swift’s was or not. For the

remainder of this section, the application of the proposed modifications to

Swift and JoJo’s situations assumes that their underlying contracts were

in fact approved by the courts.

2. Court Approval Should Be Limited to a Maximum of Three Years

In addition to expanding definitions of protectable interests and

requiring court approval, these protective statutes should also limit

approval periods to a maximum of three years for recording contracts. The

statutes could also allow for longer approval periods upon a showing of

good faith by the label. As it stands, Coogan’s Law and New York’s

equivalent already allow for approval periods for around seven years and

three years, respectively. Following approval, the label would only be able

to enforce the contract against its artist-employee for the judicially

approved period. At the end of each period, the parties would be brought

into a court-mandated arbitration session, ostensibly to renew the approval

of the contract for another short period. Renewal would be contingent

upon mutual acquiescence of the label and artist, with room made for the

raising of objections and issues. Assuming none are raised, the contract is

approved, the status quo maintained, and what is supposed to be a

mutually beneficial relationship continues to be one. If, however, the artist

or label have reasons to oppose or question reapproval of the contract,

they might raise their objections at said hearings. If the artist and label

were not able to come to an agreement, court approval would lapse,

reinstating the artist’s infancy defense but freeing the label of its

obligations to the artist and perhaps reimbursing it for some of its

investment in the artist.

The short renewal periods are intended primarily to protect artists from

the limbo or “purgatory” JoJo found herself in after her first two albums.

In fact, JoJo sued her label alleging that it could no longer enforce her

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contract against her because seven years had elapsed since its creation and

that was the period for which it had been approved.

157

While JoJo and her

label ultimately settled, shortening that waiting period from seven to

possibly two or three years, might have saved JoJo a lot of time, effort,

and wasted capital and popularity. For future artists, shorter periods would

guarantee that even if they could never reach an agreement with their

label, they would at least get the chance to start anew, with a different

label, after the short approval period expired. For Swift, who by her own

account had been fighting for ownership of her masters for much of her

career, short approval periods might have provided periodic check-ins for

her to press her case, or at least see the writing on the wall before her

label’s sale to Scooter Braun.

C. Step Three: The Arbitration Alternative

In addition to the reapproval proceedings at the end of each short

approval period, the protective statutes should be modified to allow the

artist to petition the court for something akin to an arbitration session.

Processing reapprovals and general complaints through an arbitration

setting, as opposed to a court room, would avoid burdening the court with

additional cases and complaints. To avoid frivolous complaints, the

legislature would likely have to create a standard that a party seeking

arbitration would have to meet before receiving said hearing.

158

The

existing statutes contain language speaking to the best interests of the

minor, and a standard might be fashioned from that. Legislatures might

look to existing common law contract defenses such as unconscionability,

misrepresentation, etc., to set the standard. Additionally, legislatures

could consider imposing the costs of arbitration on the party seeking

arbitration, should their grievance be found to lack merit. Finally,

legislatures would likely have to provide parties to approved contracts a

path to appeal the arbiter’s decision or an automatic approval lapse if no

agreement was reached.

D. Step Four: If All Else Fails

Finally, in recognition that the process described above will not always

produce solutions, the legislature should allow the reinstitution of the

infancy defense at the end of an approval term, but with an attendant

benefits exception. Essentially, once the approval period for a recording

157. See supra Part IV.C.

158. But not reapproval sessions—those are built into the approval of the contract and can be as

perfunctory or litigious as the parties allow them to be.

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contract neared its expiration, the artist and label would be sent to

arbitration, where reapproval would be the default unless the artist or label

objected. Assuming one party objected, and no agreement was reached,

the court’s approval of the contract would lapse. Once approval lapsed,

the minor’s right to disaffirmance by reason of their legal infancy would

be reinstated. This balance would provide a final incentive to both parties

to settle their grievances: otherwise, the label loses their artist and part of

their investment, and the artist in turn loses access to the label’s resources

and knowledge.

That being said, this last resort presents opportunities for both artists

and labels acting in bad faith. An artist, for example, should not be

allowed to rely on the label for the initial approval period, refuse renewal,

and retain all benefit derived from the initial contract. And a label, having

changed its mind about an artist, should not be allowed to provoke the

artist into disaffirmance and get its money back. To address the bad faith

artist, legislatures should codify a benefits exception to the infancy

defense. Under this common law exception, the artist seeking

disaffirmance would be allowed to do so only if they reimbursed the label

for any benefits they derived from the contract.

159

For example, if a label

paid the artist an advance for their first project, the artists would have to

pay back any of the advance spent. However, to maintain some

protections for the artist, the label would be required to show the artist had

also reaped some benefit from the initial investment. Thus, if the artist’s

contract was for one album, but the album’s performance will not cover

the initial advance, the label would be required to show that the artist

benefitted in some other way, be it a higher profile, retention of rights to

the first album, etc. Ideally, the defense and its benefits exception would

be applied in a balanced way, taking into consideration benefits to the

artist and the label.

A label is also capable of acting in bad faith and taking advantage of

the last resort this proposal supplies. For example, a label, having

calculated that an artist is no longer worth their investment, could string

the artist along or simply make things so bad for them that the artist has

no choice but to rescind the recording contract. The label would then rid

itself of an undesirable asset and potentially recoup some of its initial

investment in that artist. To protect against this possibility, the label would

first have to prove that the artists retained some benefit from the contract.

Furthermore, the label would have to account for any label bad faith the

159. See, e.g., 5 SAMUEL WILLISTON & RICHARD A. LORD, A TREATISE ON THE LAW OF

CONTRACTS § 9:14 (4th ed. 1990) (“[I]f the former minor disaffirms the obligation to pay the agreed

price, she thereby necessarily disaffirms her right to retain the consideration received by her, at least

to the extent that she still has the consideration.”).

Simons (Do Not Delete) 7/19/2023 10:05 AM

66 WASHINGTON LAW REVIEW ONLINE [Vol. 98:35

artist was able to demonstrate. In other words, if the artist were able to

show that any ostensible label benefits it received were neutralized by the

label’s bad faith and attendant career impacts, the label would receive no

reimbursement. Additionally, lawmakers could explore and impose a

cost-bearing device, whereby a party having been found to have torpedoed

a contract in bad faith would bear the cost of arbitration. This could help

deter labels from relying on the arbitration process as a last resort escape

route.

It is impossible to say how Swift or JoJo would have exercised this last

resort had either had it in their arsenal when they faced off against their

respective labels. However, considering both artists started their careers

strongly, it stands to reason that the option would have at least given them

one last escape route to capitalize on their fanbases and creative

sensibilities, without having to please opaque and profit-hungry labels.

CONCLUSION

Artists and labels have long worked to bring the world some of its most

impactful and enduring works of art. That history, however, is rife with

instances of bad faith labels, or labels who simply mismanaged an artist

into oblivion. Even Taylor Swift, a modern icon, has not been spared the

machinations of a savvy, if deceptive, label. To address this imbalance,

lawmakers across the country have attempted to protect each party’s

interests, but more must be done.

This Comment has proposed a series of modifications that lawmakers

should make to existing statutes to address the problems posed by the

inherent power imbalance between young artists and record labels. First,

legislatures should modify existing statutes to approve recording contracts

for short, two-to-three-year periods. Approval would remove the infancy

defense from the artist’s arsenal but ensure the artist could not be strung

along or mismanaged by a label for too long. At the end of each period,

artist and label would submit to an arbitration session, with the

presumption being that the contract would be reapproved for an additional

short period. However, should the artist (or label) have a grievance, they

would present it to the arbitrator. Arbitration would ensue, with an

approved contract the obvious goal. Should arbitration fail, approval of

the contract would lapse. The contract itself would survive, but the young

artist’s infancy defense would be restored, and with it their ability to

rescind the contract. Should the artist decide to resort to such a doctrine,

they would be required to reimburse the label for any valid and provable

benefits the artist had received. Overall, state legislatures should aim to

balance the interests of both parties and ensure a mutually beneficial

relationship.