The recording contract series; (part 18) Group provisions (continued)

Case studies involving band names

There are dozens, and every case seems to be different. That is why it is best to have a clear written agreement that defines who may use the band name, and to what extent, after the band splits up, or a member leaves. Just a few examples: Fran Cosmo, ex-lead singer of Boston, was sued for the use of the name, but was found to have truthfully identified himself only as the band’s former lead vocalist, and went out of his way to ensure that the Cosmo name appeared larger than any reference to Boston; in March 2013, the name En Vogue was held to belong to the founding members’ company and that two former members had no rights to it; Rock band LIVE’s original lead singer, Ed Kowalczyk, left the band in November 2009 and was sued for touting under the name “Ed Kowalczyk of LIVE,” with the case being settled out of court; the same result took place when Jack Russel of Great White was sued for using the band’s name after leaving; Scott Weiland and his ex-band, Stone Temple Pilots are currently embroiled in a flurry of litigation over the name; Kathy Sledge, one of the founding members of Sister Sledge, left the group 25 years ago, but recently began booking tour dates using the name “Sister Sledge”, and a lawsuit is under way;

Do you need this problem? I think not. Given the number of available means by which groups can commercialise their music today, their members would be very wise to make every effort to anticipate a later dispute over the name. Take care of it in the recording agreement, or set up a company and deal with it in another contract. But deal with it.

You have some options:

(a) form a business entity, whether a partnership, corporation, or limited liability company, to own the group’s name and, if appropriate, other intellectual property;

(b) negotiate and execute an agreement among the band members (or between each member and the group’s business entity) that makes clear either that a band member gives up all rights to the name when he/she leaves the band, regardless of the circumstances, or otherwise spells out what rights a departing member has, and under what specific conditions;

(c) clear and register the band’s name for national and international trademark protection; and

(d) register the band name and foreseeable variations for domain name protection at CIPC (Companies and Intellectual Property Commission).

Band Agreements

While we are on the topic, let’s talk a little about the need for bands or groups to have a separate agreement governing the relationship between members (obviously, where such an agreement exists, the “leaving member” provision can be part of it instead of the record deal).

Band agreements are just like ante-nuptial contracts (ANC’s, or what the American people call “pre-nups”). Where a married couple does not have an ANC, the result, on divorce or death of one of the spouses, can be chaos. Just like married couples, many bands never create a formal written agreement, and the same result can occur.

Most bands are not formed by professional musicians sitting down, negotiating and deciding that they are going to form a band, shaking hands and signing legal papers. On the contrary, the usual story is that a bunch of musical friends (often school-friends) get together to jam, and they just start playing. If there is chemistry, they get together again because playing music is fun. Members might come and go, a name is chosen at some point (usually after great debate and many changes), and the line-up gets musically settled.

Then the gigs start to come, songs start to be written and the band becomes a going concern. This process is usually informal, like dating, and comes about on a basis of friendship and musical commonality. And, just like lovers about to get married, a formal contract (especially one contemplating a break-up) is the last thing on the band’s collective mind at that point. But just wait as the real money starts to flow in. Like a couple in a marriage or about to divorce, a contract’s importance only becomes apparent later on, and the absence of one can hurt.

Several issues should be covered by the band agreement. But one very common situation is where there are only one or two composers in the band, with the other members purely being performers. This can result in the composer/s receiving far higher income than the performers, which can often lead to severe resentment within the band. There is a way around this, but it requires a bit of give and take, in fact generosity.

If the main composer in the band sees the band as a “vehicle” for his compositions, and values the contribution of the performers in delivering his works in a style that works, he surely will not want any of them to leave. Using this psychology, some bands have come up with a possible solution to this common problem: if the composer agrees that, as long as a band-member stays in the band, he/she will receive a percentage of the publishing income even though he/she did not actually write any of the band’s songs, the problem can be solved.

If the composer can be persuaded to agree that he will share his publishing income with the other three members (in whatever stakes) while such members remain, the performers are less likely to leave, and the composer will get greater input, together with the guarantee that when a band breaks up, all the publishing income will be his. It can work, but it will be important for the publisher and collection societies to be on board with this arrangement.

If at all, the issue of a formal written band agreement usually does not arise until the band has started to achieve some financial and artistic success. Presuming the band now thinks about this vital issue, the discussions can be awkward and filled with tension. But it must be done, and preferably before real success is tasted. Other than the leaving member issue and the ownership of the name, this agreement should also cover;

1. income splits(recording, touring and merchandising),

2. compositional ownership (and possible sharing),

3. the decision-making process and casting vote,

4. performance standards,

5. ownership of other band assets,

6. debt-risk and sharing (especially debts incurred before a member joins and after he leaves),

7. notice periods,

8. conduct,

9. grounds for termination of a member,

10. bank account rules,

11. illness/incapacity,

12. dispute resolution,

13. liability for costs and expenses,

14. loan accounts (especially where one member has bought the equipment), and

15. death

Other less material matters; like style of dress, appearance and punctuality can also be addressed in the band agreement, or in the record deal itself.