This article is not intended to, and does not constitute,
legal advice with respect to your particular situation and fact pattern.
Do secure counsel promptly, if you see any legal issue looming on the
horizon which may affect your career or your rights. What applies in
one context, may not apply to the next one. Make sure that you seek
individualized legal advice as to any important matter pertaining to
your career or your rights generally.
I have seen references to the above-mentioned document
as both "Inter-Band Agreement", and "Intra-Band Agreement".
Rather than initiate any argument with grammarians as to which term
is correct - although "intra" is probably technically closer
to the mark - let's simply call this all-important document the "Agreement
Amongst Band Members"; or, "AABM", for short. (As for
the grammarians who want to debate the use of "amongst" versus
"among", well... you can discuss this amongst yourselves!)
Now, on to the issues of interest to musicians who might
be reading this article.
If one is a musician playing in a multi-member band, is
an AABM needed? Absolutely, yes.
There are some parallels to an agreement amongst band
members, on the one hand; and a pre-nuptial agreement between prospective
spouses, on the other hand. But I actually find the case for having
an AABM more compelling than a pre-nup. A marriage should be a function
of love. A band formation, on the other hand, is often a commercial
exercise - with perhaps some attendant art and love themes to it, playing
in the background.
Written agreements should be considered required for any
collaborative commercial endeavor between 2 or more people. One should
use one's discretion as to whether or not to skip the pre-nup - after
all, the prospective spouse could get insulted, if he/she originally
thought the other spouse was in it for love only. But no band member
should skip the AABM if the band member takes his or her band or career
seriously. And no one band member should ask another to leap into a
state of blind trust, in default of a good operative document.
If the band formation is not viewed as a commercial exercise,
then I suppose the band members can simply agree on a handshake, and
then gig for free in the subways. However, the majority of bands that
I hear from, are concerned about their financial, as well as their artistic,
futures. Many are trying to find a way to become economically self-sufficient
on music alone, while preparing to quit their "day jobs".
This result is not easy to achieve. And, this result is even harder
to achieve without careful planning. An AABM is one planning tool which
is essential - and which can also become virtually worthless if "left
to a later day".
No one wants to be required to negotiate and close the
AABM once the band is already successful, or once the band has already
been furnished with a proposed recording agreement. The optimal time
to close the AABM is while the band is just being formed or while it
is still struggling. Period.
When business partners or stockholders agree amongst themselves
in connection with a business formation, they do so in one or more signed
writings. So, too, should it be with band members. A good AABM should
be firm enough to recite the substance of the agreement at the moment,
but should also be flexible enough to contemplate future changes, such
as changes in personnel and in artistic direction.
If every marriage were a true 50/50 proposition, I suppose
that one could say that no pre-nuptial agreements would ever be needed.
Similarly, if every business partnership were truly 50/50, maybe a written
partnership agreement could be viewed by some as a waste of time. But
the fact of the matter is, the percentages of investment and return
are seldom exactly identical amongst all co-venturers.
In the average 4-person band, each member may play a different
instrument. Some may have been in the band longer than others. Some
may be older and more experienced in the business of music. Some may
have "connections" to clubs and labels, where other band members
don't. Some may have more free time to invest in the running of the
band's business, while others may be working 2 day jobs.
And finally, perhaps most importantly, some may have more
of a hand in the writing of the words or the music of the band's original
songs, than other members. This potential disparity is probably the
best reason for creating the AABM as early as possible.
A good AABM takes into account all of these types of factors,
and more. Put conversely, if none of these questions came up while one
was putting together one's AABM, then the resulting document is probably
not worth very much today. An AABM is a forward-looking document that
asks "What if...?"
The real value of a contract - any contract, including
the AABM - is as a dispute-resolution and dispute-avoidance tool. In
other words, tackle the likely-occurring and even possibly-occurring
long-range events that might come up in the band's lifetime; fight over
and resolve them now; and put the results on paper. Better to do it
now, than pay litigators thousands upon thousands of dollars to do it
in the courts later.
Oftentimes, band members just "don't want to think
about" what would happen, for example, if the bass player departs
to raise kids in Maui, or if the singer-songwriter front-man just up
and leaves to join the Air Force. But if the other band members at all
value their investment of time, sweat and money in the band, then they
should know and have fully thought through - in advance - the answers
to these types of questions. Who owns and administrates the copyrights
in the songs? Who is responsible for storing the masters? Who has final
say in the hiring and firing of a manager? If the band breaks up, which
member or members, if any, may keep using the band's name? And these
are just some of the questions that should come up.
Every band's situation is different, and the lists of
questions to contemplate will therefore be as different as there are
different band personalities and different band members. It is true
that the band should be better off, if a lawyer prepares the AABM. In
a perfect world, all band members would be separately represented by
a different attorney, and the resulting document would therefore have
more presumptive fairness than if but one band member had counsel. It
is also true that a non-lawyer lay-person cannot practice law without
a license in the United States.
But should all these considerations prevent a band from
taking their first shot at creating a good AABM? Absolutely not. The
band should at least try to resolve amongst its own members, the answers
to all of the "what if" questions that will likely come up
in the life-cycle of any band. The band can try to resolve these questions
on paper. Thereafter when affordable, one of the band members may decide
to consult with an attorney to review and revise the band's starting-point
document - (typically, this turns out in practice to be the band member
with the most at stake in the outcome).
Conversely, be aware that one attorney may well not be
able or be allowed to represent all band members simultaneously, due
to concerns regarding possible conflicts of interest, especially if
different band members have different percentage investments at stake
in the band's commercial endeavors.
There should be plenty of time in the future for the band
to consider the technicalities regarding rules of attorney-client representation,
and "who represents who". And when the time for representation
is right, these are serious threshold questions that should be taken
seriously. Besides, no lawyer would take on a client without first carefully
evaluating these types of issues, as well as asking a lot of additional
questions himself or herself on his or her own.
In the meantime, all bands should carefully deliberate
upon the question of what written agreement should be drafted and negotiated
amongst the band members. Doing so now, in the present tense, could
save a lot of heartache and expense down the road in the future.
My law practice includes the field of entertainment. If
you have questions about legal issues which affect your career, and
require representation, please contact me:
John J. Tormey III, PLLC
Email: brightline@att.net
Web: www.tormey.org
