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 Fred Kron
At the age of one, when most infants are pounding on the table, I was pounding out the notes to “Happy Birthday.” My childhood was spent studying Beethoven, Brahms, Madonna, and Hall & Oates, as well as the super catchy tunes of television composing legend Mike Post. Did I practice? Sure, sometimes. But did I play what I heard on the radio and television? All the time! From pop tunes to TV themes, movie scores and obscure jingles, I tried to soak it all in. My college years were spent at the University of Miami, studying and earning a degree in Jazz Piano Performance. But once I became aware of multitrack recording and sequencing, I was hooked. My official transition from performing into the world of composition came through a college friend who had just graduated and landed a job with Happy Madison, Adam Sandler’s production company. Without my knowledge, he had bothered someone there just long enough for them to ask me for a demo reel, which I thankfully had been working on. A job was offered to me by Adam Sandler to compose music for a batch of Internet short films, and so began my career as a film and television composer. Here are five things I’ve learned along the way.
Trying to read your clients’ minds and understand what they want from you for their project (musically, emotionally, and stylistically) can seem a bit challenging at first, but with experience and learning what questions to ask, you can greatly improve your chances for a successful collaboration. These questions can range anywhere from what sonic palette you might choose to whether the client is looking for a textural vs. melodic approach.
Everyone works a bit differently, but many composers spend more time than they’d ever care to admit working on templates (preloaded instrument tracks, mix routing, and EFX) so that sounds are dialed in, and always at their fingertips when composing. I have some templates, but I usually like to start with a blank page. I don’t see this as a disadvantage, as I’ve made it a point to become extremely familiar with my sound libraries and plug-ins, and often the extra 15 seconds it takes me to load a sound can be time spent thinking of what part I might lay down, or what I might order for lunch.
Sure, in your heart of hearts, you know that what you’ve submitted on your first pass is “pure gold,” but everyone has an opinion (and, unfortunately, they’re probably making more money than you are), so it’s a good idea to let them express theirs. I’m only half kidding. Making changes is part of the gig! Sometimes, requests for changes come in the form of statements like, “Yeah, definitely add a crescendo there, and make it really soft so we can barely hear it.” That’s one of my personal favorites. More often than not, collaborators give good notes that can really make the cue or piece better.
Prior to my composing career, my background was mainly as a pianist and keyboardist. That part of my skill set has always been extremely advantageous to me, even if I’m landing a writing gig; instant demonstrations are always impressive and create great networking opportunities. It also helps me work faster and more efficiently. For example, if I’m working on an orchestral composition, the less time I spend performing the parts, the more time I can spend on tweaking controllers and geeky MIDI things for realism.
You are composing music to make the picture better, and that is the only acceptable outcome. The people hiring you all have unique personalities, varying degrees of musical knowledge (and vocabulary), and different approaches to their projects. Embrace these differences, as they are often what keeps each project unique and fresh.
[Permission Reprint by Keyboard Magazine]
Fred Kron is a Los Angeles-based keyboardist, composer, arranger, and orchestrator, who currently has music in more than 12,000 episodes of television. His current projects include original composing for Fox, touring with Colin Hay (Men at Work), and subbing on keyboards for ABC’s Jimmy Kimmel Live!
For information for the 2016 IAMA (International Acoustic Music Awards), visit: http://www.inacoustic.com
Thanks for tuning into our 2016 podcast episode for the International Acoustic Music Awards.
Intro & Outro Music: ”A Bakers Dozen” by Muriel Anderson
Advice to musicians who aren’t getting major league results: Artist Development Workshop: Image Identity Materials (I2M) Formula
by Tom Stein
For the most part, in today’s competitive music business, the responsibility for Artist Development has changed hands. Independent labels and entrepreneurial music artists have inherited the responsibility of nurturing new talent by fine-tuning their artistic and business development, and slowly growing their careers over several album releases. Developing a music career for the long haul is all about controlling one’s own destiny.
As an artist development consultant, aspiring musicians and artists regularly approach me with the question: what are the next steps I should take to develop my career as a recording/performing musician? I’d like to offer a few friendly pointers with this post to answer this common question.
Not knowing where to start can certainly feel overwhelming, because there are indeed many stages to developing an artist career, and many areas that need to be addressed. Over time, I came to see a pattern of perceived helplessness. I would need a much larger space to address all the aspects of artist development, so for now I am going to focus on the creation of your image identity materials, which I call I2M (pronounce: “I squared M”).
Bring Order From The Chaos
As with any complex endeavor, one must organize the work into sections, and devise strategies for dealing sequentially with each area. It is wise to take the perspective of music as a business, as a way of understanding the patterns of success and adopting the techniques that will lead you in that direction. I always recommend that artists study successful business role models and adopt an entrepreneurial mindset. Information and inspiration are your weapons.
Most musicians sense that marketing is a key to “breaking in to the business” but again, don’t know how to begin. You can learn much from how others successfully promote themselves. Considering marketing strategies from the very beginning of your artist business development is one way to bring order to what seems like a plethora of tasks. Focusing on marketing your music will help you to organize all the other aspects of artist development in alignment with your goals.
A Magic Formula
I like to build and test models for everything I do in my own career. A potential formula for this early stage of artist development would be expressed as:
I2M(B + R) = Ma
Or: (Image Identity Materials) times (Branding plus Resonance) equals Market access. I could express this in several other ways that are considerably more complex, taking into account the demographic of the target market, viral marketing techniques, and social media, etc. but this simple equation will serve our purposes for now. I like this kind of simple equation because it helps us to focus on what we can do right now, and why we need to do it. Let me explain each part of the equation.
What Is I2M?
I abbreviated Image Identity Materials this way to highlight that your image and identity are intertwined, and each supports the other in a synergistic way. Image identity materials include, but are not limited to:
Your visual materials are super important because people decide in a nanosecond whether they like you based on visual impact, whereas it takes a bit longer for them to process the music aurally. In the digital era, if you don’t have compelling visual images people won’t likely ever make the decision to click a link to listen to your music, or go see you live. Images are key in defining who you are (your identity) to a potential listener and fan, and they do it quickly.
Your image materials should immediately convey the alluring aspects of your identity, forcing people to listen to your music. Importantly, your I2M needs to make sense to the viewer and match up with your music in a clever way.
*(B + R)** is Branding and Resonance*
*Branding* used in this context refers to the execution of your image identity strategy. It can refer to the crafting of the messages, the professional quality of your materials, the memorability of your name, your logo, color scheme, fonts, plus any other unifying elements that create superior impact. Successful branding is certainly crucial to the success of any marketing campaign. There is an overlap between I2M and your branding execution.
*Resonance *I use to describe how well your materials are received by your target demographic. In social media marketing circles, resonance is a measure of how many people access and share curated content. When a YouTube video is released and quickly gets millions of views, this is because many people like it and want to share it. Highly resonant memes and videos are viewed and shared millions of times over a very short period. Most people are quite familiar with this phenomenon by now.
*Adding It All Up*
To summarize: when you add high potential *Resonance *and effective*Branding* together, and multiply it by your *Image Identity Materials*, (with a little luck) it should give you *Market Access. *This last term is obvious, and dependent on your actual goals. The instant accessibility of image identity materials via the increasingly interconnectedness of the web is a powerful tool for gaining traction as an artist. The next step is to devise a monetization strategy, but that topic will have to wait for another post.
*A Few Final Tips*
Now that you are organized in your thinking, make a plan around my formula. Look at it as a project, and apply tried and true project management techniques to getting things done (read up on project management techniques if you don’t understand them fully). That means making a list of milestones, and creating a timeline for completion for each milestone on the list. Figure out what you can get done on your own, and what you need help with. Write out a brief description of each milestone, and collect reference materials. If you need a budget, figure out how to get it, and conserve your resources where possible.
These are the things that most serious-minded artists do when starting out. Not every part of the process is equally fun; sometimes it feels like work, because it is. It’s important to seek out inspiration, and make sure to enjoy your time in the sun, when it comes as a result of your planning, hard work, and dedication.
I welcome your comments and ideas.
About Tom Stein:
Tom Stein is a visionary musical entrepreneur, music producer, artist development consultant, arranger, bandleader and performer on electric bass, voice and guitar. He is also a professional educator; he teaches at Berklee College of Music in Boston, Massachusetts and is the founder of Music Connectivity, a cultural diplomacy firm. www.tomstein.com
For more information on the IAMA (International Acoustic Music Awards), please go to: http://www.inacoustic.com
by Coreen Sheehan
Every performance has the potential to impact your career, so it is important to choose the right songs to perform for auditions, showcases and live performances. The comments made by judges, A&R reps and audiences can either help or hurt your prospects for success at your audition, showcase or bookings. Preparing to nail any one of these performances takes a lot of thought before you even begin rehearsing. In the following article, professional singer and instructor Coreen Sheehan offers insights that every performing artist should take to heart.
1. It Must Be PERFECT
Always perform songs that you have honed to perfection. Do not choose songs that you can’t perform flawlessly. If you can play or sing the song at 98 percent, that’s still not good enough! Find a way to correct that two percent or choose something you can perform perfectly. For example, if that two percent is a higher note that is difficult to sing, then sing a lower alternate note that you can deliver perfectly.
However, if there’s another problem you can’t fix in time for the performance, choose a different song. Think about a time when you went to a show and the artist performed great up to a point, but then suddenly played or sang some bad notes. What did you remember about that show? The bad notes are more than likely what you remembered. Most people won’t say, “Well, let’s ignore all the flaws in that performance and only think about the good parts.” In the real world, it doesn’t work out that way. Obviously mistakes can happen during a live show, but if there’s a problem that you know about in advance, avoid showcasing until you’ve solved it by working out the issue(s).
2. Choose the Right Songs for the Audition
If you are instructed to perform only a single song, choose one that is up-tempo. If you are instructed to choose two songs, choose an up-tempo song and a moderate to slower tempo song. Perform the up-tempo song first, followed by the slower song. Often judges will have you perform the first verse and chorus of the song and make their decision based upon just that. Vocalists often think that singing a ballad is the best move. But they may not realize that the judges have been auditioning vocalists all day, or for days! And guess what the judges have been listening to all day long? Ballads. If you sing an up-tempo song, and you sound awesome, you will energize the atmosphere. Grabbing the judges’ attention immediately will help your performance stand out from the rest.
3. Choose the Right Songs for the Showcase
Normally a three song setlist is performed for a showcase event. Showcasing your songs with versatility is best. Your performance should include an up-tempo, slower-tempo and moderate-tempo song selection. Each song should represent your music genre. Sometimes bands/solo artists will play an original song that sounds like it belongs to another genre category. To a professional that will suggest the artists haven’t found their sound yet. It is best to prepare three of your best songs that represent your style and genre. You should also rehearse with segues from one song into another without interruption so that there is a smooth transition from song to song and that all songs are not in the same key. Without a segue, the dead space between each song can seem a bit awkward, especially since you’re only performing three songs. Prepare properly and rock your showcase with segues so you will appear to be a professional.
4. Choose the Right Songs for the Live Performance
Arrange your setlist so it has a dynamic musical flow. When selecting the order of the setlist, make sure that each song’s tempo/BPM (beats per minute) as well as the key signature vary from song to song. The first song and last song of the setlist should be an up-tempo song. It is also important that the first song is one that you can play and sing perfectly without exceptional monitors. Why? Usually during the first song of the set, the M.E. (monitor engineer) and the F.O.H. (front of house) are usually tweaking sound levels, so keep this in mind when selecting your first song. In between the first and last songs, choose those that have different tempos from one another. For example, add a few segues between songs and also allow space between songs for the lead vocalist to speak and interact with the audience. Arranging the song setlist in this order will ensure that your live performance has a dynamic flow.
5. You Must Put in the Time
It is imperative to maintain a regimented rehearsal schedule regardless of upcoming performances. Otherwise, cramming rehearsals will inevitably result in fatigue, which will create further problems. Record audio/ video during your rehearsals and then review and critique yourself. You will positively learn what you need to practice and perfect before your upcoming audition, showcase or live performance.
6. Deliver Pure Emotion
This is what performing is all about! To emote fully in performance, you must allow yourself to let go. “Letting go” means not worrying or doubting yourself. Focusing on what might go wrong prior to performing will vibe-slay the performance. If you fill your head with doubt and worry before getting on stage, the odds will be against you delivering a flawless performance. Instead, think of how much work you’ve put into preparing your songs and what inspired you to perform them. The objective here is to tap that original emotion, that place where you were when you were first inspired to play and sing. If you can tap that emotion, that special energy, you will feel confident and, as a result, stack the odds in favor of you delivering a spectacular performance!
(Reprint permission by Music Connection)
ABOUT THE AUTHOR
COREEN SHEEHAN is a co-author of the new book Five Star Music Makeover published by Hal Leonard Inc. She has toured with major artists (Foo Fighters) worldwide, coached vocalists for a VH1 show who were singing with Rod Stewart and instructs and guest lectures at Musicians Institute, M.I. Japan, the Grammy Museum, UCLA Extension and more. See coreensheehan.net.
For more information on the IAMA (International Acoustic Music Awards), go to: http://www.inacoustic.com