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December/January 2018

by Dan Chisholm

Legal Bandwidth: What To Do When A Good Band Turns Bad

by Dan Chisholm

Legal Bandwidth: What To Do When A Good Band Turns Bad

Being in a band is like a marriage. Except that instead of having one significant other to keep happy, you’re usually fully committed professionally, financially and personally to a whole group of passionate, creative and often strong-minded individuals. Sound like hard work? Yep.

Unlike a real marriage, half the time you haven’t even had time to get to know each other first. Going into partnership with your band is often a leap of faith – the professional equivalent of Married At First Sight – without all the botox and hair extensions. What could possibly go wrong?

Loads of great bands have shown us how easily artistic and personal differences can get in the way when musos work closely together. Other times egos, money and fame can change the group dynamics and relationships. A classic example of this is the Pixies – things got nasty when their frontman Black Francis didn’t like the attention fans were giving to bassist Kim Deal, so Francis cut her out of future albums and split up the band in the process.

My point is, if you’re starting, joining or already in a band, you’re a partner in a business with potentially significant future earnings. There are lots of things that could go wrong, so it pays to play it smart. Unless you’re Bono, my advice is don’t go in with rose-coloured glasses. There are small things you can do up front to protect yourself and your financial interests.

Just like a pre-nup, a written band agreement is a simple way to set expectations and prevent nasty fall outs and potential court fees down the track. What should your band discuss and agree on? The beauty is there’s no right or wrong. Here are three important topics to help get the discussion started:

Rights to the band name and Intellectual Property (‘IP’)

Problems tend to happen when a band member leaves the group and wants to take the band name and IP with them.

The Beach Boys, Van Halen, Pink Floyd and The Doors all ended up thrashing it out over naming and intellectual property rights. Guns N’ Roses also had well-publicised tensions, particularly between Axl and Slash.

Axl once referred to Slash as a “cancer” and when the band was winding down, Axl refused to perform until the others signed away the rights to the band name. In all these cases, time and huge amounts of money could have been saved if they’d had their terms simply stated in a band agreement.

Here are a few simple ideas for what these terms could look like:

  • If one member has formed the band, they would often be justified in maintaining rights over the band name, even if they jump ship.
  • If there are two or more founding members and one departs, often they will only be entitled to use the name with the consent of the other founding members. But if the majority of the founding members leave, those members can take the name with them.
  • If the band was created equally then it makes sense for everyone to have equal rights. In this case, the name will often stay with the band. So, if a member decides to leave (or is fired) they can’t use the name.

The decision-making process

Bands make lots of big and small decisions together. This could be as simple as dress code for performances, what venues to play at and what to include in the rider.

It’s important everyone feels the decision-making process is fair. In The Eagles, for example, Don Henley and Glenn Frey were well known for leading the band in a controlling and intense fashion. Other members like Don Felder were treated like second-class citizens. Prior to Felder quitting, a heated exchange between him and Frey almost brought them to blows on stage.

While some decisions can be made by a ‘majority rules’ approach, it could be a good idea agreeing on which important decisions require the unanimous consent of ALL members. This could include decisions like new members joining the band, taking out loans and entering into contracts such as record or publishing deals. What about music licensing? Is this easy income and free publicity or selling out? Who gets to make this decision, the songwriters or the whole band?

Copyright ownership and royalty splits

Decisions around who owns the songs and gets the royalties vary between bands and the ‘right’ approach depend on whose perspective you take. Many bands come to an agreement based on each member’s creative contribution. This can stir up resentment if some members own the latest Mercedes whilst others are struggling to pay their rent.

As acknowledgement for everyone touring, performing and rehearsing, U2 and the Red Hot Chili Peppers, for example, choose to credit members equally regardless of songwriting contribution.

On the flip side, think of the band member that spends all week writing fresh material. He or she might teach songs to the band over the weekend, and ownership and royalties are split equally. Is this fair?

The Beatles took the perspective that Lennon and McCartney receive the majority of the credit for The Beatles’ songwriting. As the chief composers, John and Paul also had a unique system between them where they each got an equal credit for the other’s work.

In addition to the above, there are other matters to consider, including:

  • Who has the capacity to enter into agreements on the band’s behalf?
  • Does the band cover costs for band related equipment? And who owns this if the band breaks up?
  • What level of commitment is required from each band member? Stone Temple Pilots fired singer Scott Weiland for turning up late (and sometimes not at all).
  • When can a band member be thrown out and what happens if someone leaves?

Just like a marriage, if you’re in a band there are no guarantees things will work forever. Strap yourselves in, make the most of the great experiences, but most of all remember there’s no substitute for being prepared.

Dan Chisholm is an Associate specialising in music and entertainment law at Duncan Cotterell Lawyers. Formerly a professional musician himself, Dan supported The Who, Counting Crows, The Cranberries, Ziggy Marley, G Love, Arrested Development and Eddie Grant among others. Having spent a decade in Australia he returned to NZ two years ago. His clients from across Australasia include Tash Sultana, Pierce Brothers, Dallas Frasca, Gold Class, Graeme James, Aeroplane Music Services and Kane Strang. Email: dan.chisholm@duncancotterill.com

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