A Record Deal’s “Re-recording Restriction” Clause and the Taylor Swift “Effect”
By Justin M. Jacobson, Esq.
With the continued success of Taylor Swift and her “Taylor’s version” re-recordings of her previously released tracks, the music industry is in a state of evolution as it relates to a record deal’s “re-recording restriction” provision. In fact, in response to Taylor’s re-issuing and exclusive ownership in these new recordings, many record labels have begun to alter the traditional provisions applicable to an artist’s right to “re-record” a song previously provided to label after a certain specified time period. As a result of the shift in industry custom, it is crucial for a musician to fully understand this contractual limitation and how it might impair or provide an artist with an avenue to recapture and fully monetize their previously released works at a later date.
Specifically, in many cases, most recording agreements include language that prevents an artist from recording a song for a certain time period. As a result, these clauses provide a set duration that a “re-recording restriction” or prohibition applies. While each contract is different, the time frame typically ranges from 3 to 5 years or sometimes up to 7 years. However, as a result of Taylor Swift’s highly publicized re-release of her previously distributed works, record labels adapted to increase the re-recording restriction time frames to as long as “10, 15 or even 30 years.” Accordingly, some recording companies have even tried to impose a perpetual or “in perpetuity” restriction which would prevent the artist from ever re-recording and re-releasing the song on their own again. While it is generally common for entertainment and music attorneys and other authorized talent representatives to negotiate against and attempt to reduce lengthy re-recording restriction periods, as more artists explore the Taylor Swift “option” of re-recording their previously licensed or sold songs due to the lower hurdles to commercial distribution and monetization, labels may continue to take an aggressive stance on implementing longer restrictive time frames. Additionally, some record companies have also included additional constraints in these provisions to prevent any future re-recordings by the artist from utilizing the re-recorded songs in the same or similar order.
As a result of these changes, an artist might try to negotiate a set contractual “buyout” which could be a payment made by them to the record label to terminate an existing “re-recording restriction” provision. In this case, the clause would be based on the musician’s payment of a set amount or potentially providing an agreed upon percentage or even the fully unrecouped amount owed under the record deal. Alternatively, or in lieu of this revision, a musician might try to incorporate an automatic right to end a lengthy “re-recording restriction” if a song subject to the prohibition does not generate a specific amount of money during the restriction period. Similarly, the talent might try to negotiate a provision that ends the “re-recording restriction” term if the song does not earn an agreed upon total amount by a set date. For instance, an agreement with a lengthy “re-recording restriction” could also try to specify that if the track subject to the provision does not earn a total amount of money within a listed time frame, then the restriction ends which enables the artist to re-record and re-release the song.
While the Taylor Swift “effect” is clearly apparent in the highly publicized industry customs change, in reality, few bands or artists have the financial resources to return to the studio to re-record and re-release old material. However, in the rare cases of artists that do, the potential disruption to the existing released works is enough for long-established music business practices to begin to change in response to the potential existence of “nearly” exact copies of existing music re-released by the original artists with a larger potion of those songs being earned by the musician. Interestingly, these artists may also still be earning funds from the originally recorded songs as well so it will be fascinating to see if there are additional responses and more stringent policies as more high-profile artist’s successfully re-release existing tracks when a “re-recording restriction” ends.
This article is not intended as legal advice, as an attorney specializing in the field should be consulted.
© 2023 Justin Jacobson Law, P.C.