The Written Agreement Amongst Band Members - John J. Tormey III
“This article is not intended to, and does not constitute, legal advice with respect to your particular situation and fact pattern. Do secure counsel promptly, if you see any legal issue looming on the horizon which may affect your career or your rights. What applies in one context, may not apply to the next one. Make sure that you seek individualized legal advice as to any important matter pertaining to your career or your rights generally”.
I have seen references to the above-mentioned document as both “Inter-Band Agreement”, and “Intra-Band Agreement”. Rather than initiate any argument with grammarians as to which term is correct - although “intra” is probably technically closer to the mark - let’s simply call this all-important document the “Agreement Amongst Band Members”; or, “AABM”, for short. (As for the grammarians who want to debate the use of “amongst” versus “among”, well… you can discuss this amongst yourselves!)
Now, on to the issues of interest to musicians who might be reading this article.
If one is a musician playing in a multi-member band, is an AABM needed?
There are some parallels to an agreement amongst band members, on the one hand; and a pre-nuptial agreement between prospective spouses, on the other hand. But I actually find the case for having an AABM more compelling than a pre-nup. A marriage should be a function of love. A band formation, on the other hand, should be primarily a commercial exercise - with perhaps some attendant art and love themes to it, playing in the background.
Written agreements are required for any collaborative commercial endeavor between 2 or more people. One should use one’s discretion as to whether or not to skip the pre-nup - after all, the prospective spouse could get insulted if he/she thought you were in it for love only. But no band member should skip the AABM if the band member takes his or her band or career seriously. And no one band member should ask another to leap into blind trust in default of a document.
If the band formation is not viewed as a commercial exercise, then I suppose the band members can simply agree on a handshake, and then gig for free in the subways. However, the majority of bands that I hear from, are concerned about their financial, as well as their artistic, futures. Many are trying to find a way to become economically self-sufficient on music alone, while preparing to quit their “day jobs”. This result is not easy to achieve. And, this result is even harder to achieve without careful planning. An AABM is one planning tool which is essential - and which is also virtually worthless if “left to a later day”.
No one wants to be required to negotiate and close the AABM once the band is already successful, or once the band has already been furnished with a proposed recording agreement. The optimal time to close the AABM is while the band is just being formed or while it is still struggling. Period.
When business partners or stockholders agree amongst themselves in connection with a business formation, they do so in one or more signed writings. So, too, should it be with band members. A good AABM should be firm enough to recite the substance of the agreement at the moment, but should also be flexible enough to contemplate future changes, such as changes in personnel and in artistic direction.
If every marriage were a true 50/50 proposition, I suppose that one could say that no pre-nuptial agreements would ever be needed. Similarly, if every business partnership were truly 50/50, maybe a written partnership agreement could be viewed by some as a waste of time. But the fact of the matter is, the percentages of investment and return are seldom exactly identical amongst all co-venturers.
In the average 4-person band, each member may play a different instrument. Some may have been in the band longer than others. Some may be older and more experienced in the business of music. Some may have “connections” to clubs and labels, where other band members don’t. Some may have more free time to invest in the running of the band’s business, while others may be working 2 day jobs.
And finally, perhaps most importantly, some may have more of a hand in the writing of the words or the music of the band’s original songs, than other members. This potential disparity is probably the best reason for creating the AABM as early as possible.
A good AABM takes into account all of these types of factors, and more. Put conversely, if none of these questions came up while one was putting together one’s AABM, then the resulting document is probably not worth very much today. An AABM is a forward-looking document that asks “What if…?”
The real value of a contract - any contract, including the AABM - is as a dispute-resolution and dispute-avoidance tool. In other words, tackle the likely-occurring and even possibly-occurring long-range events that might come up in the band’s lifetime; fight over and resolve them now; and put the results on paper. Better to do it now, than pay litigators thousands upon thousands of dollars to do it in the courts later.
Oftentimes, band members just “don’t want to think about” what would happen, for example, if the bass player departs to raise kids in Maui, or if the singer-songwriter front-man just up and leaves to join the Air Force. But if the other band members at all value their investment of time, sweat and money in the band, then they should know and have fully thought through - in advance - the answers to these types of questions. Who owns and administrates the copyrights in the songs? Who is responsible for storing the masters? Who has final say in the hiring and firing of a manager? If the band breaks up, which member or members may keep using the band’s name? And these are just some of the questions that should come up.
Every band’s situation is different, and the lists of questions to contemplate will therefore be as different as there are different band personalities and different band members. It is true that the band should be better off, if a lawyer prepares the AABM. In a perfect world, all band members would be separately represented by a different attorney, and the resulting document would therefore have more presumptive fairness than if but one band member had counsel. It is also true that a non-lawyer lay-person cannot practice law without a license in the United States.
But should all these considerations prevent a band from taking their first shot at creating a good AABM? Absolutely not. The band should at least try to resolve amongst its own members, the answers to all of the “what if” questions that will likely come up in the life-cycle of any band. The band can try to resolve these questions on paper. Thereafter when affordable, one of the band members may decide to consult with an attorney to review and revise the band’s starting point document - (typically, this turns out in practice to be the band member with the most at stake in the outcome).
Conversely, be aware that one attorney may well not be able or be allowed to represent all band members simultaneously, due to concerns regarding possible conflicts of interest, especially if different band members have different percentage investments at stake in the band’s commercial endeavors.
There should be plenty of time in the future for the band to consider the technicalities regarding rules of attorney-client representation, and “who represents who”. And when the time for representation is right, these are serious threshold questions that should be taken seriously. Besides, no lawyer would take on a client without first carefully evaluating these types of questions, as well as asking a lot of additional questions himself or herself on his or her own.
In the meantime, all bands should carefully deliberate upon the question of what written agreement should be drafted and negotiated amongst the band members. Doing so now, in the present tense, could save a lot of heartache and expense down the road in the future.
My law practice includes the fields of entertainment and publishing. If you have any questions about copyright law or any other legal issues which affect your career, and require representation, please contact me:
John J. Tormey III, PLLC