The Importance of Creating An Internal Band Contract
by Wallace Collins
Over the years there have been many lawsuits between and among the members of various musical bands. These lawsuits have concerned everything from disputes over the distribution of money to the right of departing members to use (or not to use) the band name in connection with ongoing endeavors. In most cases, it would have been better to be safe than sorry, and get the understandings of the band members in writing when everyone was in agreement just so all the parties remember what they agreed to at the start.
The internal group member contract between the members of a band is fundamentally important, but many musical groups ignore this crucial early step. When two or more people associate for the purpose doing business they create a partnership in the eyes of the law. General partnership law applies to the association unless a written agreement states otherwise. General partnership law provides, among other things, that all partners equally own partnership property and share in profits and losses, that any partner can contractually bind the partnership and that each partner is fully liable for the debts of the partnership. In the case of most musical groups, a written agreement setting forth the arrangement between and among the group members as partners is preferable to general partnership law.
A band agreement can address issues such as who owns the group name (and whether and in what capacity a leaving member can use the group name), who owns what property (including not only sound equipment but intangible property such as recording agreements and intellectual property such as the songs and the recordings created by the group), and how profits and losses are divided. Since it almost goes without saying that members of a band inevitably leave and groups inevitably disband, it is important to structure an inter-band agreement in the early stages of a career. It will function in a sense like a prenuptial agreement when matters start to disintegrate, and it can make the break-up process less painful.
Some bands may deal with this agreement among themselves and some bands may have a lawyer prepare a basic inter-band agreement. If it is a fairly equal partnership where all members are writing and performing and sharing equally, it is a fairly simple process. However, where some members are songwriters and others are not and/or where one member claims ownership in the name or another makes significantly larger financial contributions than the others, it can become a complicated process. If the band cannot work it out among themselves, they can either sign a conflict waiver permitting the one attorney to act solely as scribe (and not as advisor) on behalf of the group, or each member of the group may need to get his or her own lawyer to protect each respective member’s interests. Like it or not, as artistic and creative as forming a band can be, this is a business and it is wise to recognize that and deal with it. These inter-band issues are better dealt with at the beginning when everyone is optimistic and excited rather than later when tempers flare and bitterness pervades as egos clash.
A typical band contract will address certain fundamental group issues. One important issue is who owns the group name if one member leaves or if a group dissolves which group of members are entitled to use the name. Under partnership law the partners would be the joint owners of the name and any member would probably be permitted to use the name (or maybe no members would be allowed to use the name once the partnership is deemed dissolved). Trademark rights are determined based on the “use” of a mark (not on who thought of the name) so each of the members of the group would be an equal co-owner of the group name under trademark law. The end result under either partnership law or trademark law might be impractical.
In most cases, the band agreement will state that if a particular founding member was the creator of the group name then only a group comprised of that member and at least one other member can use the name. This will apply whether one other member leaves or if the group disbands and only the founding member and one other reform the group. There are as many different ways this provision can be drafted as there are different group names. When a group member leaves, the remaining members are going to want to keep the group name and are not going to want the leaving member to dilute its value or confuse the public by using it in any way. The band agreement provision may say that a leaving member cannot use the name at all or that the leaving member can only mention that he was “formerly” a member of the group (provided that such credit is printed smaller than the member’s name or his new group’s name, etc.).
Rights in the group name may also concern revenues generated in addition to rights, specifically as they concern the sale of merchandise (e.g., hats, t-shirts, calendars and other products and paraphernalia). The band agreement should have a “Buy-Out/Pay Out” provision which would deal with this financial aspect of the group name.
The band agreement will need to contain provisions regarding the sharing of profits and losses. One provision may pertain to revenues earned during the term while each member is in the group and another may pertain after the departure of a member or the demise of the group. In most cases, a group just starting out will have a provision that all profits from the group are shared equally between all members with an exclusion for songwriting monies (which each of the respective songwriter members would keep for themselves). Where an established group adds new members the provision may provide that a new member gets a smaller percentage than the founding members.
However, in most cases, during the term there is not a problem determining appropriate revenue shares. The more complicated problem of revenue division arises after a member departs. The agreement may provide that the leaving member is entitled to his full partnership share of profits earned during his tenure but a reduced percentage (or no percentage) of profits derived from activities after his departure – or the agreement may provide for a reduced percentage for a short period of time after departure (e.g., 90 days) and then nothing thereafter. This is an easier issue to remedy as it relates to live performances and sales of merchandise during those performances than it is as it relates to record royalties. The group needs to determine what happens, for example, when a group member performs on 3 albums but leaves before the fourth album is recorded. Although it might be acceptable to refuse to pay the leaving member any royalties on the fourth and future albums recorded by the group under the record contract the leaving member signed as part of the group, it might not be fair to refuse to pay that leaving member his share of royalties from the 3 albums that he did record with the band. Of course, this might vary in the agreement depending on whether the leaving member quit or was fired.
Another important financial issue is the question of the leaving member’s share of partnership property such as band recording equipment or a group sound system. Again, the agreement might specify a monetary payout to the leaving member if he is terminated but forfeiture if the leaving member quits. If merchandise with the leaving members name and likeness still in inventory is sold after the member leaves, a decision will have to be made about whether and how much the departed member might receive for the use of his name and likeness.
The issue of control is also very important to deal with in inter-band contract. In most cases, each member will have an equal vote and a majority will rule. However, there are as many variations as there are bands. For example, some acts might require unanimous agreement or an important member may have two (2) votes and/or the band’s manager may have a tie-breaking vote. The agreement may also provide that certain matters such as requiring financial contributions from group members or incurring debts on behalf of the band require a unanimous vote. Again, there are endless variations including situations where a particular member makes all of the decisions or where new members do not have a vote on band business. One interesting inter-band arrangement was that of The Beatles. In answer to that age-old question, “no”, Ringo did not get less. In fact, my understanding of their arrangement was that it was what might be called a reverse democracy: each member had one vote but if any member voted against doing something then the band would not do it. In other words, their arrangement required unanimous consent to proceed with an activity.
Another issue of control that must be decided for the band agreement concerns the hiring and firing of band members: how votes are calculated (e.g., will each member get one vote or will a particular member’s vote count double) and how many votes are needed (e.g., a majority or a unanimous vote) to fire a group member and/or hire a new member. In most cases, a new member voted into the group will then be required to sign on to the internal group contract. It must also be decided how to vote on any amendments to the band agreement since this may materially effect the relationship between the members after the group has started. In most cases, a majority vote will be deemed determinative but some members may prefer a unanimous vote on such things as amending the agreement (as well as hiring or firing). This will have to be decided between and among the members of the group.
Finally, the group’s internal agreement should contain a comprehensive Buy-out/Pay-out provision that deals with departing members. In most cases, whether the leaving member quits or is fired the agreement will provide that the leaving member waives all rights in the intangible assets of the partnership (e.g., the group name, the group contracts, etc.). If the member quits, he might waive any right to and benefit derived from the hard assets such as band sound equipment. If the leaving member is fired, the agreement might provide that he or she is entitled to the pro rata percentage of the current value of the hard assets. With respect to this payout, the band agreement may provide that if the valuation exceeds a certain amount (e.g., $25,000.00) or would put the band partnership in financial distress, the payout would be in a certain number of equal monthly installments (e.g., over 12 months).
Again, this Buy-out/Pay-out provision can be as simple or as complicated as the band members deem necessary. There are as many variations in this as there are differences in personalities between the members of a group. Each member and each group must find its own balance.
Inter-band issues and disputes are many and varied. Recently, a member of the Eagles sued the remaining members saying he was forced out of the Eagles’ corporation by the other shareholders (and invoked provisions of the California corporate law pertaining to minority shareholders in close corporations). Years ago an ex-member of The Black Crowes sued his former band mates claiming that he was entitled to an equal share of all the money they made after they threw him out of the band. His contract claim was based on nothing more than a pie chart drawn on a napkin. Legend has it that, years before while eating at a dinner after a band rehearsal, each member had signed his name on his slice of the “pie” drawn on the napkin allegedly agreeing that they would stay together and share all of the money equally come what may. Of course, when circumstances changed the fired member used that napkin to assert his rights.
It is difficult to form a good band and to achieve a successful career in the music business. Any group of two or more musicians working together would be well-advised to create and sign a good Internal Band Contract so that the band does not later self-destruct over money and ego issues and forfeit its hard-earned career success. In a perfect world, each member could afford its own lawyer to quickly and inexpensively prepare and sign such an agreement. In the real world, that may not be the case. In any event, some kind of basic band agreement is a good starting point for any new band.
Wallace Collins is a New York lawyer specializing in entertainment, copyright, trademark and internet law. He was a recording artist for Epic Records before attending Fordham Law School. Tel:(212) 661-3656 / www.wallacecollins.com
For more information on entering IAMA (International Acoustic Music Awards), go to: http://www.inacoustic.com
by Kari Estrin
There’s lots of advice on how to have a successful career in music, but in the end, knowing these five tips will give you a “leg up.”. Of course, each of us may define what success is differently – but however you define it, these tips will also help you chart a steadier course along the way.
1) BE AN AUTHENTIC ARTIST
One of the best ways to stand out from the crowd is to be individual, be true to what special talents you have, what you’re writing and your vocal style. Although some artists may imitate others, your best shot (unless you’re into tribute bands) is in developing your own unique sound.
2) CRAFT YOUR ART
Sometimes the best song you ever wrote happened in five minutes with no edits. That is a gift from the muse, but that’s not always the usual case. Don’t be afraid to edit your songs to make them even better, take voice lessons if you need to hit the notes the way you’d like, or beef up your instrumental work with lessons when you’re starting out. Do what it takes to refine your sound by editing, rewriting, resigning and of course, practice. Reach out for help and expertise – it’s all around you and some of it is free for the finding!
3) DEFINE YOUR IMAGE/BRANDING
You may have written songs that are jazz, blues, pop, singer/songwriter and country, but just because you have all that talent, know what are you trying to project to your audience? It’s great to be multi-talented and to occasionally throw something atypical into a set artfully, but with so many choices of talent, you need to have a sound and image that people will instantly recognize as yours. Otherwise, you’ll dilute your appeal and have a harder time standing out above the crowd.
4) DEFINE YOUR AUDIENCE/WHO DOES YOUR MUSIC APPEAL TO?
Do you understand who comes to see you and if so, do you know can you reach them? Is Instagram or Twitter the social media your audience prefer – or are your fans mostly on Facebook? Knowing your audience, the medium that they will respond to in order to engage them to come to live shows, sell your music and reach them on an emotional level is important.
5) BE BOTH PROFESSIONAL AND SHARP IN YOUR BUSINESS:
Arrive at gigs on time and prepared; thank those who work with you or do your sound, serve the drinks or do your backstage catering and let them know you appreciate them. When you’re starting out and even after you “make” it, making those around you comfortable and valued goes a long way to your longevity in business. But learn your business as well – there are resources, including info on the ‘net to help you know the best way to negotiate a contract, how to deal with conflict, what are common music business practices, etc. There are plenty of people who might want to take advantage of you in the business, so if you know more about best how it works and are savvy, you’ll be more protected. Although many bands we may worship have/had a lot of that “bad boy” image – trashing hotel rooms, demanding those brown M & M’s,that’s generally not the smartest way to think you’ll advance yourself or survive in the business these days!
Kari’s wide expertise in the music industry spans four and a half decades. Starting in the early 70’s to her concert/festival production days in the 80’s in the Boston/Cambridge area (Harvard, The Berklee, Symphony Hall, Newport Folk, etc) Kari carved out her national reputation. She managed/booked/tour managed guitar legend Tony Rice in the early 80’s and world music act, The 3 Mustaphas 3, who reached No. 1 in Billboard Magazine, truly establishing Kari as a sought after professional. Her groundbreaking Career Assessment System predates “coaching” and has helped a wide variety of artists, from beginning to established, to take their careers to new heights and expanded levels as Kari pioneered working with the “whole” artist in her integrative and holistic approach. She is also is an acoustic music radio promoter and her artists have topped the Folk DJ charts for roughly 17 years. http://www.kariestrin.com
For more information on entering IAMA (International Acoustic Music Awards), go to: http://www.inacoustic.com
by Kate Beaudoin & Jessica Brandon
How did Meghan Trainor do it? It’s been a year since pop singer Meghan Trainor hit #1 on the Billboard Hot 100 Charts with, “All About That Bass.” Within the year of the video’s release, it racked up an impressive 1 Billion views on YouTube. Before long, the single hit No. 1 on the Billboard Hot 100, where it stayed for nine weeks (also hit #1 in 58 different countries) and helped Trainor’s debut album, Title, debut No.1 on the Billboard 200 charts. The media has written that Trainor came from nowhere, but did you know she was discovered in IAMA (International Acoustic Music Awards) in 2009 and won Best Female Artist with an acoustic song “Waterfalls”? And she became one of the most-talked-about artists of the year. And she did it all on the mantel of empowerment — at least, that’s what she’d have you believe.
“All About That Bass” was so successful in large part due to the idea that it was the new feminist anthem; after all, 2014 was the year of the booty and empowerment was in. But to those who read between the lines of Trainor’s clever marketing ploy, it’s clear as day that “All About That Bass” is as far from a feminist anthem as they come. Trainor’s problematic stance extends far beyond that single. By simultaneously claiming a feminist mantle and advocating an anti-feminist agenda, Trainor has become a threat to all the gains that pop music has made in feminism recently.
What the lyrics are really saying. The messages in Trainor’s songs are often ostensibly about encouraging healthy self-confidence. “I hope [‘All About That Bass’] helps girls love themselves more, because they’re adorable. Women too,” Trainor told Glamour. The issue, however, is that those supposedly empowering lyrics encourage impressionable girls to be happy with themselves only when men deem them acceptable. People criticized “All About That Bass” for its skinny-shaming, but even more concerning is that Trainor claims your worth comes from what men think of you.
“Boys like a little more booty to hold at night,” Trainor sings, explaining why it’s OK not to be a “skinny bitch.” It’s OK not to be a “skinny bitch,” but only because some boys prefer you that way.
The crown jewel of Trainor’s anti-feminism is easily “Dear Future Husband.” When the video for “Dear Future Husband” hit YouTube in March, many rightly claimed that her message was sexist. Trainor’s lyrics advocate outdated gender roles (“Cause if you’ll treat me right / I’ll be the perfect wife / Buying groceries”), seeking self-worth based on men’s opinions (“If you wanna get that special lovin’ / Tell me I’m beautiful each and every night”) and, of course, confirming the idea that all women are crazy, emotional creatures (“You gotta know how to treat me like a lady / Even when I’m acting crazy”). But those who defended Trainor claimed that it was just a song and shouldn’t be taken so seriously.
“I don’t believe I was [being sexist],” she told MTV. “I think I was just writing my song to my future husband out there, wherever he is. He’s chilling right now, taking a minute getting ready for me; it’s going to be great.”
He’s getting ready — doing crunches and 200 pound dead lifts so he’s ready to be strong enough to impress Trainor!
For more information on the 12th Annual IAMA (International Acoustic Music Awards), go to: http://www.inacoustic.com
Why You Didn’t Become A Pro Musician Yet (And How To Do It)
By Tom Hess
There are countless musicians who want to succeed in the music industry but fail to do so. Most of them fail because they are taking action to do things that actually accomplish very little (although they spend tons of time on these things). Unfortunately, this causes most musicians to waste years of their lives only to end up frustrated and disappointed.
Here are six reasons why you have not become a professional musician yet, and what you should do to immediately move your career forward:
1. Your Living Situation Prevents You From Growing Your Music Career
It’s just not possible to grow a massively successful music career if you spend every minute of your free time exhausted because you work full time hours every week.
To start working full time on your MUSIC career, you must develop a strategy for smoothly transitioning out of your day job. One way to do this is to reduce the hours you spend every week at your day job from forty to thirty five and spend the difference working to build your music career. As you begin making additional music related income, you can cut down the amount of time you spend at your regular job and gradually phase in your music career.
2. Your On Stage Performing Skills Are Severely Lacking
Amateur musicians have not yet mastered the ability to perform well in live situations. It’s not enough to just stand on stage and play your instrument. Pros are able to put on shows that motivate people to see the band play again, sell music and take your band to a higher level in the industry. Anytime you play on stage, it should motivate your fans to tell everyone they know about how awesome your band is.
3. You Hold Yourself Back In Your Music Career
Musicians often complain that they don’t have enough opportunities, but if they were only given a chance, they would take advantage of it. In reality, musicians often pass on big opportunities because of their own fears and insecurities.
The main idea here is that these kinds of musicians complain about not having opportunities for developing their careers, and eventually go on to reject the big chance to break into the music industry. I sometimes talk to these musicians years later, and they tell me the identical sad story about how they never got the chance to become highly successful.
Don’t become another one of these unsuccessful musicians. Don’t put things off and allow inaction to be the main factor for why you never became a professional musician. Don’t allow fears of failure to become the DESTROYER of your musical dreams… Take action NOW and begin recording your first album, playing in a new rock band, improving your songwriting skills. To take powerful action to move your music career forward, first build your greatest musical goals, then work with a mentor who will show you how to reach them.
4. You Already Gave Up On Your Musical Dreams, But Don’t Know It Yet
One of the worst ways to ruin your chances for success in music is to listen to the advice of people who have never been successful professional musicians. These people will tell you things like:
“Music isn’t a real job.”
“You want to become a rock star? Dream on!”
“To be a pro musician, you have to become a starving artist who plays on the street corner.”
“The music business is too risky, you’ve got to get a job doing something more safe.”
“You should do music on the side while you get a music degree in case it doesn’t work out.”
Reality is, the music industry is a very safe industry to work in (for musicians who follow the correct steps for earning a good living in music). The majority of the true professionals in the music business are NOT playing on street corners… they make a good living doing what they love to do and are simply not known in popular media. Actually, it is a lot easier to earn a great living in the music business than most people think (while also having that income be very consistent and secure). That said, endless amounts of musicians pay attention to the ignorant advice of others who never even worked in the music business. As a result, they think their musical dreams are impossible and give up on them altogether.
To transform yourself into a highly successful professional musician, you need to ONLY listen to people who have accomplished major success in the same areas of the industry you want to work in. There is truly no reason to accept the well-meaning (but misguided) advice of your peers, friends or family who only repeat myths and platitudes about success the music industry without any true experience in this industry. Remember, your favorite bands and musicians all started at or below where you are now in your music career before they went on to become legends. The only thing that keeps you from achieving what they’ve done is your own mindset!
5. You Are Heading Down The Path To Becoming An Amateur Musician… NOT A Professional!
There exist many differences between how hugely successful pro musicians build their careers, and how amateurs try to build them. Professional musicians expect to accomplish great things at all times and only associate with other like-minded people. On the other hand, amateurs allow their careers to become consumed with mediocre results.
Here are a few examples of what I am talking about:
Amateur musicians invest most of their time performing in bands with musicians who have no true ambitions for greatness.
Professional musicians only work with other musicians who are totally committed to success in the music business. For instance, here is a one question test to help you understand if your band is near or at the professional level: Would every member in your band cancel all their plans to go on a huge tour throughout the country (that could possibly results in losing substantial money in the short term), in order to increase the chances of gaining more profitable opportunities in the band’s future? If the answer is no, then your band is a long way away from reaching the pro level.
Amateur musicians frequently associate with band members, friends or peers who are negative and question their ambitions for becoming successful professional musicians.
Professional musicians surround themselves with other people who motivate and inspire them to reach their musical dreams. They don’t spend any of their time being around people who bring them down.
Amateur musicians (falsely) assume they can achieve everything they want in their music career alone, without a trainer or coach. Instead, they are satisfied with relying on trial and error or merely doing what other musicians are doing. They assume they can accomplish the same success of other musicians by copying what those musicians are doing. This approach is why the majority of musicians don’t understand how to get into the music business.
Professional musicians invest into a music industry coach instead of simply copying what other people are doing, to ensure that every action they take brings them closer to their greatest musical goals.
6. You Don’t Truly Understand How To Earn Money In The Music Business
Amateur musicians use tons of time recording tracks for their albums and improving on their instruments, yet have no clue how to earn a living from all these things. These musicians usually invest months into writing and recording music, then finally release it online where no one (except for their friends) hears it. They become disappointed, their music careers come to screeching halt (before even getting started) and they never again try to accomplish anything significant.
You will not earn a nice living as a professional musician by taking isolated actions as discussed above. Professional musicians make tons of money by developing entrepreneurial mindsets (and taking action on these mindsets), growing strategically interweaved streams of income and working with an experienced mentor to understand how to create their own opportunities in the music industry.
Now that you know why you haven’t become a professional musician, learn how to finally make it in the music business with music career coaching.
About The Author:
Tom Hess is a recording artist, music career mentor and virtuoso guitar player. He trains and mentors musicians of all different experience levels on how to develop a successful career in music. Visit his musician website to get free music career building tools and read professional music business columns.
For more information on the 12th Annual IAMA (International Acoustic Music Awards), go to: http://www.inacoustic.com/entry.html
IAMA is extremely proud to announce that our winner Meghan Trainor has just been nominated for Record of the year and Song of the Year at the prestigious Grammy Awards. Meghan Trainor hit #1 on the Billboard Hot 100 Charts for the 9 weeks, making it the biggest hit of the year by a female artist. She has beaten the biggest names in music today: Taylor Swift, Nicki Minaj, etc. Also, she is also #13 with a bullet on the Billboard Hot 100 Charts this week (at press time) with “Lips Are Movin'”. She was nominated for Best New Artist on American Music Awards. This is an unbelievable success for such a young music artist.
HER BEGINNINGS & STRUGGLES
Most music industry people laughed when Meghan entered and won Best Female Artist in 2010. But, when she hit #1 on the Billboard Hot 100 charts, heard her Multi-Platinum selling song on the radio, they were left completely stunned and speechless. The entrants of IAMA (International Acoustic Music Awards) were surprised and even angry when a 16 year old girl won 4 years ago, completely unaware of the incredible success she was going to achieve.
Meghan Trainor has continued to shock the entrants, winners, judges of IAMA (International Acoustic Music Awards) and now the music world.
TOP OF THE CHARTS, BREAKS RECORDS
Her song “All About The Bass” has sold over 5 million copies and reached #1 in 25 different countries. The video has garnered over 300 million views on YouTube (at press time). From June 2014 when she released “All About That Bass”, in a span of 4 short months, she has gone from obscurity to superstardom within in short time. With her debut single staying #1 for 9 weeks, it is also the second biggest debut single of all time by a debut artist. The biggest debut is Debbie Boone’s “You Light Up My Life” which stayed at #1 for 10 weeks on the Billboard Hot 100 Charts. However, Meghan, at 20 years old, is the youngest most successful debut artist in history with most weeks at #1 for a debut single. This is because Debbie Boone was 21 years old when she hit #1 in 1977.
MOST WEEKS AT #1 For A PERFORMANCE COMPETITION WINNER
With Meghan’s debut hit staying at #1 for 9 weeks, this officially becomes the most successful hit single in history for any music performance competition winner. Meghan’s debut single stayed longer at #1 than any American Idol, The Voice, X-Factor winner’s debut single. Yes, it stayed longer at #1 than any debut single by Kelly Clarkson, Carrie Underwood, Fantasia, Taylor Hicks or Clay Aiken.
ABOUT IAMA (International Acoustic Music Awards)
IAMA (International Acoustic Music Awards) promotes the art and artistry of acoustic music performance and artistry. In it’s 11 year, IAMA has a proven track record of winners going on to hit the Billboard Charts. 2nd Annual IAMA winner Zane Williams’s winning song was recorded by country music star Jason Michael Carroll, that song hit #14 on Billboard Country Charts and #99 on Billboard Hot 100 Charts. Jeff Gutt, finalist at the 9th Annual IAMA was a runner-up on X-Factor USA. For more information on 11th Annual IAMA (International Acoustic Music Awards), go to: http://www.inacoustic.com