November 23, 2019 Reading Time: 5 minutes

Taylor Swift’s struggles with the rights to her own music – a legitimate struggle for reasons I will explain – are now hugely public and extremely intense. She is feeling oppressed by her former record label, which is insisting on retaining rights to her music, music that she composed, performed, and promoted. Now the left and right are weighing in on the great controversy, attempting to use it for their own purposes. 

Elizabeth Warren tweeted a bitter attack on an implausible but politically predictable target:

Unfortunately, @TaylorSwift13 is one of many whose work has been threatened by a private equity firm. They’re gobbling up more and more of our economy, costing jobs and crushing entire industries. It’s time to rein in private equity firms—and I’ve got a plan for that.

To which Allysia Finley of the Wall Street Journal responded with a defense of capitalism itself:

Record labels operate like venture-capital firms: They make a lot of bets but don’t know which will pay off. Income from Ms. Swift’s old recordings is helping to launch the careers of aspiring musicians. While liberals want the government to take more money from the rich to support those of lesser means, they apparently don’t like when private industry does the same…. she owes her fortune—Forbes estimates her net worth at $360 million—to American capitalism, which made it possible for businesses to invest in her and allowed her to profit as a result. 

I’m temperamentally more sympathetic to the Journal’s point here – and she does make a good case for investment, risk, and return  – but it doesn’t deal with the intuitive sense that something is fundamentally wrong here. Taylor wrote the songs, recorded the songs, marketed the songs, so it just seems odd here that she is being forced away from claiming them as her property to do with what she wants. 

Let’s leave aside disputes over details concerning what she can and cannot do with her own music, and presume that her old label is indeed doing everything Swift accuses them of doing. 

Yes, you could say this is a matter of contract. Taylor signed away her rights and then left for another record label. Her plight is of her own making. And yet, there is another layer operating here. Artists have chafed under these kinds of arrangements for many decades. Every famous band and singer has had brutal conflicts with their labels, from Metallica to Kesha and beyond. It got so bad for Prince that he even changed his name to get away from having his own music somehow owned by someone else. 

We of the pro-market ideology like to talk about how markets are about cooperation, mutual agreement, and happiness all around. Why are the relationships between artist/performers and record labels so often fraught with difficulty?

The heart of the matter here is copyright. Let us be clear: copyright is not based on a normal contract. It is a state-granted right of monopoly privilege. It is usually presumed to belong to the artist. This is a myth. “Copyright was never primarily about paying artists for their work,” explains; “far from being designed to support creators, copyright was designed by and for distributors — that is, publishers, which today includes record companies.”

Precisely, and you can see this history at work even in the earliest copyright laws of 16th century England. The crown wanted to suppress the writings of Catholics or Protestants depending on who was in charge. Rather than the outright use of violence to censor, the method was to appoint the London Company of Stationers as the enforcement agents with a monopoly on all printing. There is absolutely no evidence that authors wanted anything like this. And yet even to this day, the myth persists that somehow “intellectual property” was and is about protecting the rights of the creator. 

In the U.S. context, the Constitution grants Congress the right to legislate on intellectual property. “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,” says Article I Section 8 | Clause 8.

Notice the tweak from the British case in which the right belonged to the crown to grant to publishers. In the U.S., the framers believed that they were liberalizing the law by specifying that it would belong to “authors and inventors.” In truth, this turned out to be just fancy language. Authors and inventors routinely sign over their rights (copyright or distribution rights) to publishers and studios. Again, this is an industrial privilege, not a grant of rights to creators. 

To understand how the contracts would work in a copyright-free world, just consider the way normal contracts work. Let’s say you make a deal to have a company build a deck on your back porch. Later you change your mind and at the last minute decide that you want a different company to do it. Breaking that contract comes at a cost, as specified in the contract. You pay the fee and move on. No one is harmed because the company is compensated. 

With copyright, an exit clause is not part of the deal. Authors do not typically understand that under conventional copyright, their work is effectively owned by the publisher for 70 years beyond the death of the author. Whereas the law used to be 14 years, it can now last more than a century. Nothing stands in the way of laws that would make it even worse. That’s not capitalism; it’s the problem of the monopoly grant of copyright. Authors and artists are routinely victimized by this mess. 

To be sure, Taylor has herself been a bit confused about this topic all along. She has withheld her music from streaming services on the belief that she should be the sole owner of the sounds she has made. That is not how copyright works and never has. Even if the contract arrangement made that possible, it would be unenforceable. Music is one of those infinite goods: copying it takes nothing away from the original. 

The question then is quickly posed: how in a copyright-free world can artists (or composers or performers in general) make money? The same way they always have: first print runs, concerts, branding, sales on release, quality controls, interviews, and just generally becoming a big deal. It’s easy to imagine that there would be fewer long-tail royalties accruing to music itself, simply because music would eventually become part of the commons. In effect, and despite copyright,  this is how it works today. All the crackdowns in the world have failed to stop music piracy but that’s not what is necessary to make the arts profitable. 

Now Taylor finds herself in a bind, at once demanding ownership of her music and fighting with another claimant who is invoking a state-protected copyright contract. I get it: it’s infuriating. You could say that she should have gone Creative Commons in the first place and thereby retained all her rights, but big-time promoters and production studios would not currently accept such a thing. 

Taylor Swift’s case isn’t about the power of private equity or the perfect workings of market capitalism. It doesn’t fit into any existing political paradigm. It is a dispute over enforced ownership rights that have been granted to the unownable, with predictable conflicts that ensue from that error. That’s the real source of the seemingly insoluble conflict not just between Swift and her old record label but between all artists and those who produce, market, distribute their work. 

Jeffrey A. Tucker

Jeffrey A. Tucker served as Editorial Director for the American Institute for Economic Research from 2017 to 2021.

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