Nigel’s Music Business Blog 2

This blog deals with the question does a band need to have a written band agreement? The short answer in letters ten feet high is YES.

Perhaps the first thing that needs to be addressed is to answer the question what is a band agreement? This is a document which sets out the rules, rights and responsibilities of the band members between each other. The most common thing a band will say and sadly it is a common refrain is we don’t need one. Why do bands say that? Probably because they don’t want to spend money dealing with things they don’t think will ever happen and also because bands start off as friends and their attitude is that we will not fall out and if we do disagree about anything  we can sort it out as mates with no problem. If only that were true. Just think about the number of people who get married. How many marriages stay the course?  Like married couples, band members fall out all the time and sometimes the fall out can lead to the band splitting. What starts out as great mates can possibly end up in friends becoming enemies. What might band members fall out over? You name it and it is quite possibly true. The list is endless and fall outs can be over the most silly trivial issues.

A band agreement is not something which is that expensive to have prepared and costs peanuts compared to falling out and facing the big expense not to say time and stress of going to court. I must stress that a band agreement will certainly not guarantee that the band members will not end up in court arguing against each other but it certainly lessens the chances of this happening if there is no written agreement in place. It is possible to have everything agreed orally and not have it documented in writing but to quote Sam Goldwyn although an oral contract is valid at law an “oral contract is not worth the paper it is written on.” The difficulty with an oral agreemment arises in establishing what the members agreed about how matter(s) currently in dispute were to be dealt with. By looking at a written band agreement things should be a lot clearer and the parties should know what they can or can not do. Compare this to an oral agreement trying to show what you said and thought was agreed whilst the other band members may well say they thought something different had been agreed or indeed it may be that none of you had even considered what was to happen in a particular situation which is now in dispute.

The agreement should deal with matters such as who owns and can use the band name and any band logo. The band name and logo is probably the most valuable band asset and can be protected against misuse by for example using the law of passing off or if the band name and logo has been registered as a trade mark by using trade mark law. By dealing with the ownership and use of the band name and any logo in the band agreement this will enable the owner(s) of these rights to more easily stop the misuse of these valuable assets by any non owning band members. (It should be noted that these intellectual property rights for this is what the band name and any logos are can be used to stop misuse not only within the band but against any other person who is infringing the owners’ rights). The band agreement should also deal with the procedure to be followed should any member want to leave or if the rest of the band wants to throw out one or more members, and with the procedure to be followed to admit a new member to the band. Another crucial matter which must be dealt with is band income. The band agreement must deal with what is meant by the word “income” and how the band income is to be split between the band members. It may be that there is to be an equal split or  there may be an unequal split between the band members or different types of revenue streams may attract different splits between the band. However the income is to be split should be detailed in the band agreement. These are just a few of the areas which need to be dealt with and which if not will almost certainly lead to disputes, possibly splitting the band and possibly leading to expensive legal proceedings.

Let’s just briefly examine the notion that a band is a group of equals. I am aware of one group which has been going very successfully for somewhere in the region of 25 plus years where the income split between the band is something like 97% for the lead singer and 3% for the other band members. To the world they look like a band of equals and friends and no doubt they are but income wise they are not equals. Also consider the position of the songwriter(s) in the band. Ask yourself why invariably they earn more and maybe millions more than their other band member mates. This is because the songwriting income which should be  dealt with in the band agreement commonly but not always provides for the songwriting income to be excluded from the definition of band income as the band member who writes the songs may well want to keep 100% of this income for himself. That is why the songwriter in a very succesful band who may not look as if he is the main person in the band may well take home more of the money and live the high life to a better standard than his fellow band mates. It may well be that bands can end up in court having entered into a band agreement but having one in place lessens the likelihood of it happening.

Next week the thorny issue of the manager.

Finally a couple of questions for you not related to the topic in this blog. Why is a clause in a tour rider (a tour rider is the bands’ requirements over and above the usual clauses found in a touring agreement) requesting only blue M&Ms in a bowl be available for the band maybe not an OTT request? (I may be wrong the colour may not have been blue but it is not the colour which matters!)  I think the band who requested this were Aerosmith. Apologies to them if it is not. Now I thought when I read this it was an OTT request that is until I read the reason behind it which made  me think it was in fact quite a clever idea. As an extra bit of homework for you and this is a really difficult question which world music stars’ only request in her tour rider was an ironing board be available in her dressing room? Answers next week.