Understand band agreements
A band agreement is a contract between the individual members of a band which sets out how the band is going to conduct business together.
Starting out, most people are just playing some music with their mates. You don't generally think about what will happen if you fall out with each other, or if one person leaves.
However, rock history is littered with tales of the fall-out from band splits and the expensive court battles that have followed. It can save a lot of pain and argument if it's all down on paper.
The contents of a band agreement
It’s important to consider the following elements:
Having a band agreement at the start of a relationship can save you time, stress and thousands of pounds, at a later date.
- How will the income be divided between the band while everyone's together and making music?
- How will income be divided if one person leaves, or if the band breaks up completely?
- Who 'owns' the band's name?
- Can a single member take it with them if they leave and the others carry on?
- What if the band breaks up and members want solo careers?
- Are there pieces of equipment that will have been bought communally by the band?
- Who will take those away if the band breaks up?
This all sounds like pretty depressing stuff, but the idea is that everyone within the band knows where they stand if a certain event happens. That way the situation can be dealt with the minimum of disruption to all of the band members' professional careers.
Ownership of the band's name
Regarding the ownership of a band's name, there are two different circumstances where a band agreement can help:
If a single member of the band leaves
Who 'owns' the band's name, and can a single member take it with them?
What if the person leaving is the principal songwriter, lead singer, or the person who thought the name up?
What if that person is all three?
You might agree that no one person, whoever they are, can take the name with them if they leave. Or you might agree that the remaining members need permission from the person who leaves to carry on using it (this one could be problematic if the parting isn't on good terms)
Alternatively, you may all agree that one person does have the right to the name and can prevent the others from using it if they leave.
If the band breaks up completely
In this event, the record company will often have the right to decide who gets to keep the name. It'll be a clause in their record contract.
If you don't have a record deal, it will come down to what's in the band agreement. There aren't any rights and wrongs, it's whatever the band members feel is appropriate.
Dividing income for the band
It's often the case that not everyone in the band writes, or that they contribute differing amounts to different songs. How a band chooses to share publishing income is something else that's worth sorting out before things get sour.
It can be a cause of tension in the band if one or two members are taking all the publishing income while the rest are still broke.
A writer can take the view that the band are helping to promote their songs by recording and touring and so deserve an equal share of the profits.
What happens when one person leaves, though? Their contribution to building the band's profile has helped make the project a success, so they may feel that they still deserve some financial recognition.
As with all these issues, there is no right and what is wrong answer, just what is best for a particular band.
Although recording is an important part of being in a band, selling the recordings through touring and press interviews is equally important.
How will you divide the proceeds if, for example, one member helps write the album but leaves before it's released? They'll have helped make the record but won't be doing all the promotional work and so aren't working to sell it.
You could easily agree that a band member who leaves before a tour isn't eligible for any income directly from the ticket sales.
But what about merchandising and sponsorship income that may have been generated while the member was still with the band?
Penalties for leaving
The aim should be to engineer a departure with the minimum disruption.
It may be that a band decides to impose penalty clauses on a leaving band member, especially if it occurs in the middle of a tour (or just before it starts) or half way through recording an album.
Departure at these points may well have a significant financial impact on the band and may delay or even prevent the tour or recording from happening at all.
That can leave a band out-of-pocket if they've booked a studio or producer for the recording sessions, or paid for crew, travel expenses or accommodation for a tour.
Consequently some band agreements try to discourage band members leaving at these key times. You may agree that, if a member leaves at an inopportune moment, they are liable for any costs resulting from cancelled gigs or recordings.
It must be remembered however, that sometimes a band member leaves because they are simply not enjoying the life any more and want to move on. This may well happen to any member of the band and may not be caused by a rift.
In these circumstances the aim should always be to engineer the departure with the minimum disruption.
If the leaving member has been sensitive to this issue you may wish to think twice before imposing penalties in these circumstances. You never know, it could be you!
Putting together a band agreement
Having a band agreement at the start of a relationship can save you time, stress and thousands of pounds, at a later date. As the agreement is negotiated between the band when they are on friendly terms, it can all be carried out in a level-headed way.
Ideally, a band should get a lawyer to raise the issues that they need to discuss and then the band should try to work out what they all feel is fair between them. Then your lawyer will draft what has been agreed into a contract.
It's also worth bearing in mind that an agreement written at the start of a band's career might not apply if circumstances change. So it may be worth revising the terms of it from time to time.
Written by Matt Fernand, BBC Radio 1, and put together with the help of entertainment lawyer Martin Deller of Northrop McNaughton Deller Solicitors. It is intended as general information only and is not to be treated or relied upon as specific legal or commercial advice. Specific professional legal advice should be taken before any course of action is pursued in relation to the information. Neither the BBC nor Northrop McNaughtan Deller accept any responsibility for any loss or damage arising from any information on the website. © BBC Radio 1