.....is actually music attorney JC Press, who has agreed to contribute some of his legal savvy to Li'l Hank's Guide For Songwriters in exchange for a box of Vanilla Wafers and a Frappaccino. If you are a singer/songwriter, musician, or are involved in any aspect of songwriting or the music business, this section should be in your bookmarks.
He has his own website where you can find
a goldmine of legal advice and copyright information that others would gladly
charge you hundreds if not thousands of dollars for. What's more, JC writes
in plain English, so if your extent of legal knowledge is , say, Judge Judy,
you can still understand what he's talking about!
I want to talk about band agreements. Would you like to join me? Maybe you have one, maybe you don't. Maybe you think you don't need one. Whatever you think, here's my opinion: you need some sort of written agreement between members of the band, and especially the songwriters in the band, if not everyone contributes to the songwriting duties.
You may think that everything is cool and that these guys that you are performing with are your boys, so if there's any problems, you'll work it out. Let me tell you, when money gets involved, your boys will be looking out for themselves, not worrying about you. Maybe that's a bit harsh, maybe bit cynical...but maybe that's reality. Try telling someone after you get signed that, even though it's a 5 man group, he's only getting 10% of the money because he's "just the drummer" and the rest of the group sings and writes songs, so they deserve a greater share. See how pleasant that situation gets.
Yeah, I know, proposing that your group enter into a more formal, written agreement, is difficult because everyone wants to work on the "trust" principle, as I like to call it. Trust is a great thing. I hope that all my clients trust that I am doing right by them (because I am....), but there are a lot of examples of relationships based on trust and understanding going straight down the toilet. How I attempt to preserve the trust with my clients is to let them know exactly what I intend to do for them and, and I put our understanding in writing. So should you.
If you intend to allow your drummer to share in 10% of the monies your group takes in, let him know that up front and memorialize your agreement in a written document. If he signs the document, you have tangible evidence of the fact that he agreed to only claim 10% of the group's income. If you don't have a written agreement, you can sure as hell bet that when your album goes platinum, he's going to want his 20% just like everyone else. And if there's no written agreement, you'd probably end up in court trying to prove that there was an "understanding" or even a verbal agreement to the contrary. Who wants to go through that? I'm an attorney and I don't want to have to go to court to try to prove the existence of some verbal agreement or "understanding" between your band members.
When you discuss things up front and get them in writing, you create the conversation at the beginning of the relationship, when everyone is more clear headed about the organizational structure and operation of the band. That may sound a bit too much like a business to you, but you need to think of the band as both a creative entity AND a business entity, because it is both. If you are making money, even money for playing a gig at the local hole in the wall, the band is a business entity and should be treated as such. If you have trouble thinking along those lines, you either need someone else in the group to handle that side of things, or you need a manager. Ultimately, I feel the responsibility lies with each and every band member to know at least the basics of the business side of things. The creative side is the easy thing for you to do, because that is initially why you started playing music in the first place, isn't it?
AGREEMENTS AND SONGWRITERS
The problem gets even more involved when you are dealing with song writing. Who writes the songs for the group? What kind of input do all the group members have? If you have one primary songwriter and the rest of the band adds their little bit here and there, how do you split the songwriting income? If you have no agreement, the assumption is that everyone shares in the songwriting income equally. Not a problem if everyone contributes equally, but when one person rights 80% or 90% of the songs, I'm sure he doesn't want to give an equal percentage to everyone in the band. The reality of the situation is, that a band on a major label or with major label-like money will not begin to make money from album sales until the album sells greater than 500,000 units. This is a generalization, but is true in most situations. Some more reality: your chances of selling that many albums is very very slim. Check the numbers. Last year, only .2% of all albums sold more than 250,000 units. You do the math. The numbers at indie labels are a bit less frightening, but the bottom line is that you won't be rolling in doubloons for quite some time.
Songwriting royalties, however, will, depending on how your contract is structured, start rolling in from the first album sales. How do you want that money divided? Does the primary songwriter get 90% of the royalties? That would allow him to cruise in his Lexus while the rest of the band peddles to the store on their bicycles to buy their macaroni and cheese dinners. But if he wrote 90% of the songs, doesn't he deserve that money?
To avoid the hassle that this may cause, get your agreement in writing. Before the album sales. As the songwriter, you don't want to be the cause of dissent within the band because you never talked about how songwriting royalties would be shared and everyone assumed they would get a piece.
Again, if you are afraid of dealing with the subject at the beginning of the relationship, think of what you would have to go through if there was disagreement after the band started making money. You don't want to end up in court. It's not fun. And it will end up costing you more money and causing you more grief than you could imagine
FORM OF THE AGREEMENT
This article is not an advertisement for my services or anyone else's legal services for that matter. Not at all. You don't need a lawyer to draw up an agreement covering the division of rights between group members. You can draw the agreement up yourself. On a napkin if you want. As long as you have all the terms of your agreement written down and signed by everyone involved, you will be OK. Now, what OK means to you might be different than what OK means to me. An agreement drawn up by an attorney will (most likely) be much more in-depth and thorough than an agreement drawn up by a non-attorney. Again, this statement comes from experience. I'm sure there are those of you out there who can draw up an agreement just as good as some attorneys, or who can copy an agreement from someone else which will work in your situation. My point is that you should have an agreement, however you come about getting that it.
I hope I have made my position clear. I always appreciate feedback, so let me know if there's something I missed in my discussion, or if there is just something that you are still not clear about. I am open to comments.
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