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The Importance of Creating An Internal Band Contract

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The Importance of Creating An Internal Band Contract

by Wallace Collins

 

 

Andy Hill & Renee SafierOver 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

 

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5 Simple Truths I Learned About Music Career Success

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5 Simple Truths I Learned About Music Career Success

by Kari Estrin             

 

Derik Nelson, singer-songwriter

Derik Nelson, singer-songwriter

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 Estrin

Kari Estrin

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

 

 

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7 Ways to Improve Your Live Performances

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7 Ways to Improve Your Live Performances

by Bruce Wawrzyniak

IAMA Winners Downhill Bluegrass Band  performing live on stage

IAMA Winners Downhill Bluegrass Band performing live on stage

Booking the shows, playing the shows, promoting your live dates, keeping up your website and social media, and writing and rehearsing. These are all a regular part of the schedule that a singer/songwriter keeps. But where in there is time left – or where in there are you making time – to evaluate the end product?

You’ve got the songs written, and certainly those are the key. Not only because without songs to sing you’d be on stage in front of mic like a stand-up comedian, but, because you can be real good at booking yourself, but if the songs don’t move anyone, no one is going to attend all those shows you so successfully scheduled yourself for.

Here are some tips on making sure that once you step into the spotlight, the people stay – and listen.

  1. Arrange to have a couple of your live shows filmed. Yes, it’s great content for YouTube and/or your website, but more importantly, this is for your own internal review. You know how you sound on-stage, but do you know how you look? This doesn’t have to be a huge production or a new line item in your music budget. Even if you just put a camera on a tripod and leave it there, get some footage you can watch. I’m not a big advocate for video off of a smartphone, but to just have something for your own study, that will even suffice so you can see what the audience members are seeing.
  2. Don’t do your entire show sitting down. Singer/songwriters face enough stereotypes (see the aforementioned stand-up comedians). Don’t add to it by sitting on a stool for two whole hours. (Dare I say don’t even bring a stool at all?!) Stand up, move around, and give the audience a reason to not nod off or look down into their phones. If you don’t look interested, why would they want to give you their undivided attention?
  3. Be very strategic about your set list. I’m amazed at people who tell me, “I don’t do a set list. I just play what I feel in the moment.” And thus they play four ballads in a row and start losing audience members to sadness or disinterest or fatigue. Mix up the ballads and the mid-tempo and the up-tempo songs. Plus, during the booking process, ensure that you can play all originals. If they want a mix of cover songs, have a good combination that will keep people interested when you start playing a song of yours that you want them to know.
  4. Be a good storyteller. There’s a huge difference between saying, “Here’s a song I wrote about my first car,” and painting a picture of what the make and model was along with the color, any defects, the reason it had meaning to you, and why it made enough of an impression on you to actually write a song about it. Imagine going to a songwriters festival and just playing your songs without any explanation or setup. The stories behind them would be noticeable by their absence.
  5. You don’t know what the audience members are each going through, good or bad. Hopefully you are playing shows where they’re paying to see you. That in itself should be a big reminder that they’ve made a conscious choice to hear you add to their celebration or help them with their current plight. There should be no cruise control setting in your act. Play every time like it’s your first show and your last show.
  6. Pick one table or audience section to play to and draw them in. Then move on to the next table or section. And so on. Don’t play just to the person or people right in the front. The guy at the back deserves to hear you just as much and he could very well end up being that “you never know who might be in the crowd” person.
  7. The devil is in the details, as they say. Practice good mic technique. Befriend the sound tech. Have your guitar in tune so you’re not adjusting on the fly during your very first song. Don’t close your eyes the whole time you’re singing. These are all a part of the equation that add up to a live performance you can be proud of at the end of the night.

As they say, wash, rinse, repeat. Use the above as a checklist and/or create a Live Show checklist so that you are ready each time you take the stage, and leave the audience members applauding and wondering when and where they can see you perform next.

————-

Bruce Wawrzyniak is the president of Tampa, Florida-based Now Hear This, Inc., which specializes in management, promotion, and booking for musicians. He is the host of the weekly show, “Now Hear This Entertainment,” which has gotten listeners in 80-plus countries around the world. He writes a weekly blog at www.NowHearThis.biz and is the author of “Bruce’s Bonus Book: A Collection of Tips for Up-And-Coming Entertainers.” He is a regular attendee of songwriters festivals and served as a speaker at a Young Songwriters Workshop in Nashville. Look for him as a panelist at a major music conference in the southeast later this year.

For more information on the 12th Annual IAMA (International Acoustic Music Awards), go to:

http://www.inacoustic.com

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Why You Didn’t Become A Pro Musician Yet (And How To Do It)

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Why You Didn’t Become A Pro Musician Yet (And How To Do It)

By Tom Hess

Professional Musicians playing on live TV

Professional Musicians playing on live TV

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

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