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THE WRITTEN AGREEMENT AMONGST BAND
M E M B E R S
by John Tormey III, Entertainment Lawyer
© 2009 All Rights Reserved. Used By Permission
A A B M
I have seen references to the above-mentioned document as both “Inter-
Band Agreement”, and “Intra-Band Agreement”. Rather than initiate any
a rgument with grammarians as to which term is correct -let’s simply call
this all-important document the “Agreement Amongst Band Members”; or,
“AABM”, for short. If one is a musician playing in a multi-member band,
is an AABM needed? A b s o l u t e l y, yes!
The agreement
There are some parallels to an agreement amongst band members, and a
pre-nuptial agreement between prospective spouses. But I actually find the
case for having an A A B M more compelling than a pre-nup. A m a r r i a g e
should be a function of love. A band formation, on the other hand, is often
a commercial exercise.
Written agreements should be required for any collaborative
commercial endeavor between 2 or more people. Maybe it seems easier
N O T to make it official, but no band member should skip the A A B M , if the
band member takes his or her band or career seriously. It may not be
realistic to operate on blind trust, in place of a good written agreement.
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”. It is best to have an
agreement in hand, rather than, to put it off .
When to begin?
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 A A B M
is while the band is just being formed or while it is still struggling. A g o o d
A A B M should also be flexible enough to contemplate future changes, such
as changes in personnel and, Artistic direction. It is also likely one of the
members may have more of a hand in the writing of the words or the
music of the band’s original songs, all the more reason for creating the
A A B M as early as possible.
Band members
In the average 4-person band, each member may play a diff e r e n t
instrument. Some may have been in the band longer than others, or more
experienced in the business of music. Maybe one of you has “connections”
to clubs and labels, or more free time to invest in the running of the band’s
business. Each member can perform a different function in business.
Why a contract?
The real value of a contract - any contract, including the A A B M - is as a
dispute-resolution and dispute-avoidance tool. By dealing with things
ahead of time, it may be best to discuss things now; and put the results on
p a p e r. Resolve things before having to pay litigators thousands upon
thousands of dollars to do it in the courts later.
What happens if…
All of those “what if” questions, may not be the focus at the beginning.
Band members may not want to think about, what m a y happen if the bass
player departs to raise kids in Maui, or the singer-songwriter front man
decides to join the Air Force. If all the other band members 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? W h o
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, if
a n y, may keep using the band’s name? And these are just s o m e of the
questions that should come up.
When to get a lawyer
Every band’s situation is different, and the lists of questions to consider
will be as different as there are different band personalities and diff e r e n t
band members. The band may be better off, if a lawyer prepares the
AABM. In a perfect world, all band members would be separately
represented by a different attorney, but that is not realistic.
Should all these considerations prevent a band from 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).
Be aware that one attorney may well not be able, or be allowed to
represent all band members simultaneously. This is due to concerns about
possible conflicts of interest, (especially if different band members have
d i fferent percentage investments at stake in the band’s commercial
e n d e a v o r s . )
It is best to draft some kind of written agreement between band
members, since doing so now can save a lot of heartache and expense
down the road in the future.
John Tormey III is a New York lawyer who handles general commerc i a l ,
transactional, and corporate matters. John is also admitted to practice law
in California, and in Washington, D.C. John’s focus is in the area of
e n t e rtainment, arts, and media, including endeavors to market art i s t i c
material to professional entertainment industry recipients. Please contact:
w w w. t o r m e y. o rg
HOW TO LEGALLY S E L L DOWNLOADS OF COVER
S O N G S
by Derek Sivers, CD Baby
© 2009 All Rights Reserved. Used By Permission.
♦
Please note that the below is not official legal advice. It is ONLY for the
U.S.A. We are not your lawyers, and you should always contact your
attorney before entering into any contract such as a license.
If you have recorded a cover version of someone else’s song, and you
plan to make that recording available over the Internet, the following
information applies to you. You must follow these steps BEFORE you
make your recording available for distribution to the public!
If you record a cover version of a song, (meaning your performance of
a song that has been released in the U.S. with consent of the copyright
owner), you are entitled by law to release your recording commercially,
and the owner of the copyright to the song cannot prevent you from doing
s o .
The Copyright Act provides for what is called a “Compulsory
License” for downloads and CD sales, which means that if you follow the
steps set forth by statute, you can distribute your recording of that song on
a CD or over the internet. This Compulsory License is only available for
sales in the United States. Other uses of masters, such as streaming,
conditional downloads, and the like, are not subject to a Compulsory
License. A separate license from the publisher is needed in those cases.
The following details the procedure for individuals to obtain a
compulsory license to digitally distribute cover songs over the Internet to
end users in the United States.
Identify the Copyright Owner - the publisher
The first step is to identify the owner(s) of the copyright to the song. T h e
p u b l i s h e r. The easiest way to do this is to search the songwriter/publisher
databases, here:
BMI (bmi.com)
A S C A P ( a s c a p . c o m )
SESAC (sesac.com)
Harry Fox (songfile.com)
U.S. Copyright Office (copyright.gov)
www.indiebible.com The Indie Bible – 10 th Edition