Can Taylor Swift Perform Her Music at the AMAs? A Lawyer Explains the Scooter Braun Drama

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Can Taylor Swift Perform Her Music at the AMAs? A Lawyer Explains the Scooter Braun Drama

This summer, Taylor Swift’s dispute with her former record label Big Machine, which had then just been acquired by her longtime-enemy Scooter Braun, went public. Swift posted to social media in July, writing that Big Machine’s founder Scott Borchetta had not allowed her to purchase her back catalog when she left the label. The singer accused him of attempting to hold her music hostage with a deal that would have found her releasing more albums for Big Machine in order to “earn” the rights to her prior releases—an account that Borchetta vigorously denied.

The issue seemed like it was more or less resolved, with Swift finding a new home at Universal Music Group and announcing that she would be re-recording the albums held by Big Machine. But the dispute reignited Thursday, after Swift posted a message to social media accusing Borchetta and Braun of using their status as the owners of her back catalog to thwart her upcoming projects, including a performance at the American Music Awards and an upcoming Netflix documentary.

“It’s been announced recently that the American Music Awards will be honoring me with the Artist of the Decade Award at this year’s ceremony,” wrote Swift. “I’ve been planning to perform a medley of my hits throughout the decade on the show. Scott Borchetta and Scooter Braun have now said that I’m not allowed to perform my old songs on television because they claim that would be re-recording my music before I’m allowed to next year.”

Artists are generally free to perform live under blanket public performance licenses, as these don’t result in tangible recordings that compete with the original masters. But the AMAs aren’t just live—they’ll be televised next Sunday and potentially re-aired or made available on streaming services. “Live performance is potentially different than it being televised,” says entertainment attorney Barry Heyman. “Under copyright law, if it’s rebroadcast or licensed to third parties, the sound recording is considered fixed in a tangible form. And once her voice and the music production is fixed in a tangible form, it becomes another sound recording, even though it’s an audio-visual work.” And according to Swift’s post, she’s not contractually allowed to begin re-recording her music until next year.

Swift also said that Big Machine was preventing Netflix from using her music and performance footage in the film. “Scott Borchetta told my team that they’ll allow me to use my music only if I do these things,” she continued. “If I agree to not re-record copycat versions of my songs next year (which is something I’m both legally allowed to do and looking forward to) and also told my team that I need to stop talking about him and Scooter Braun.”

Big Machine responded in a statement, denying that they attempted to prevent Swift from performing at the AMAs or tried to “block” the Netflix documentary. The label wrote that it does “not have the right to keep her from performing live anywhere,” and accused the artist of “owing millions of dollars and multiple assets to our company.”

The New York Times reports that Swift’s team provided the paper with an email from a Big Machine executive that read that the label “will not agree to issue licenses for existing recordings or waivers of its rerecording restrictions” for the Netflix documentary. Esquire reached out to Big Machine for comment, but has received no response as of this time.

Swift isn’t the only big-name artist to become embroiled in a dispute over the rights to her music. One-time friends Michael Jackson and Paul McCartney fell out after Jackson outbid McCartney for the rights to the Beatles catalog in 1985. And in the ‘90s, Prince promised to re-record his entire back catalog while locked in a dispute with Warner Bros, though in the end he only re-created a few songs before purchasing his masters.

“The message being sent to me is very clear,” wrote Swift in her original post. “Basically, be a good little girl and shut up. Or you’ll be punished.” Swift asked her fans to “let [Borchetta and Braun] know how you feel about this,” and to ask artists managed by Braun, a roster that includes Justin Bieber, Ariana Grande, and J Balvin, “for help with this.”

And the fans seem to have been mobilized. As of this writing, more than 70,000 people have signed a Change.org petition titled “Let Taylor Swift perform/use HER art.” In its statement, Big Machine accused Swift of sicking her fans on the company and its staff. “Taylor made a unilateral decision last night to enlist her fanbase in a calculated manner that greatly affects the safety of our employees and their families,” wrote the company.

Other artists, including Halsey and Selena Gomez, have come to Swift’s defense. “This is just mean,” wrote Halsey on Instagram. “This is punishment. This is hoping to silence her from speaking about things by dangling this over her head.”

Gabrielle Bruney is a writer and editor for Esquire, where she focuses on politics and culture.

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