Musical Divorce 2: A Strategic Approach to Copyright Issues in Band Partnership Agreements

The break-up of a musical band can be traumatic both for the band members and for the fans. The trauma intensifies if the break-up is not amicable but rather ends in a flurry of lawsuits over who owns the band’s intangible assets – copyrights, trademarks, trade names, and image rights.  In the United States, some musical bands whose break-ups ended up in litigation include: The Beach Boys, The Doors, Platters, and Deep Purple. Although oftentimes the break-up of a musical band cannot be predicted or even avoided, long and messy legal battles can be avoided. To avoid wasting valuable time and money fighting over intellectual property rights when a band breaks up, the best strategy for band members is to execute a band agreement at the time the band is formed or very soon thereafter. What is a band partnership agreement? What copyright issues should a band partnership agreement address?

Band Partnership Agreements: What Are They? 

A band partnership agreement is a legally binding contract that addressesthe rights and responsibilities of members of a band. It is an agreement between band members and is different from other agreements that music bands frequently enter into with third parties in the music industry such as a Band-Management agreement, Band-Agent agreement, or Band-Attorney agreement.Band partnership agreements usually lay down the rules that regulate the conduct of band members in their relationship with one another. A band partnership agreement operates throughout the life of a band unless otherwise stated.

Is there a Standard Band Agreement?

There is no standard band partnership agreement. What is important is that the agreement is detailed, comprehensive, and addresses all the issues that are likely to arise throughout the life of a band. Band agreements cover a host of issues. Apart from intellectual property issues, a band agreement could cover the following: Form of Business (whether a sole proprietorship, a partnership, or a limited liability corporation); Commencement Date and Duration; Finances and Assets; Division of Profits and Losses; Decision Making (e.g. Majority Voting, Consensus, Unanimity); Division of Responsibilities; Meetings of Partners; Books and Records; Bank Accounts; Dissolution, Adding or Removing of Band Members; Amendment of the Band Agreement; and Dispute Resolution including Alternative Dispute Resolution. Thus, a good band agreement must address issues that typically arise throughout the life of a music band. Because many fights between band members are over songwriting rights and/or recording rights, a good band agreement must cover copyright.

Band Agreements: Why Do They Matter?

A good band agreement will save a lot of grief, stress, money, time, and visits to the lawyer’s office many years down the line. Because the breakup of a band is frequently preceded by years of wrangling and is followed by years of legal battles, anything that can be done to preserve peace and avoid wasting unnecessary time and money in lawsuits must be given serious consideration. Four decades of legal wrangling and litigation followed The Platters, an American band that had a number of chart-topping hits in the 1950s and 1960s including hits like “The Great Pretender” and “Smoke Gets in Your Eyes.” 

Without an agreement, problems and disputes will inevitably arise when one member’s growing creative ambition and songwriting ability begin to dominate the group’s musical direction. Without an agreement, a band member may find out many years later that he or she was not properly credited as co-writer on some of the band’s song and may have to sue other band members in order to gain credit for co-authorship and to recover lost royalties. It is possible for a band to exist and even thrive without a written band agreement, but the risks associated with operating without a written agreement are great.

Overall, a good band partnership agreement must provide clear answers to a broad range of questions relating to copyrights and other types of intellectual property. The goal is to minimize areas of potential conflicts and avoid unnecessary surprises if a dispute ever arises. Without clear answers, conflict will arise over creative decisions, ownership rights, division of royalties, and rights to continued exploitation of copyrights long after a band splits. 

When Is the Best Time to Execute a Band Partnership Agreement?

Ideally, the best time for members of a band to execute a band partnership agreement is immediately after the decision is made to form a band or soon after the band is formed. While it is never too late to execute an agreement, the worst time to execute one is when a conflict has arisen between band members.

Band Partnership Agreements and Copyrights

Under the Nigerian Copyright Act (Cap. 68), literary works, musical works and sound recordings are all eligible for copyright. To enjoy copyright protection under the Nigerian Copyright Act, a work must satisfy two distinct requirements. First, the work must be original. In other words, sufficient effort must have been expended on making the work to give it an original character. Second, the work must be fixed in a definite medium of expression. In other words, the work has to be put on a tangible medium of expression such as paper, cassette tape, LP, CD, or DVD. In the music industry, one is dealing with three distinct copyrights: copyright in musical compositions, copyright in the lyrics, and copyright in sound recordings. With regards to any particular song, the composer, the lyricist, and the performing artist may be one individual or may be two or more different individuals. In Staggers v. Real Authentic Sound (D.D.C.1999), the United States District Court, District of Columbia, rightly observed that “[c]opyright protection extends to two distinct aspects of music: (1) the musical composition, which is itself usually composed of two distinct aspects-music and lyrics; and (2) the physical embodiment of a particular performance of the musical composition, usually in the form of a master recording.” Melville B. Nimmerand David Nimmer, in their treatise Nimmer on Copyright (2003) also observed: “Copyright ownership of the physical embodiment of the performance of a musical composition (e.g., a master recording) is distinct from the ownership of the copyright in the musical composition itself.”  

Because copyright in a musical composition is not the same as, or a substitute for copyright in a related sound recording, it is important that the different copyright issues are understood and exhaustively addressed in any agreement between members of a band. A good band partnership agreement must provide detailed and unambiguous answers to a host of questions including:

1.Who owns the copyright in each musical composition the band produces? 

2.Who owns the copyright in each sound recording the band releases?

3.Who decides which songs the band will perform and/or record?

4.How are decisions about who gets songwriting credit to be made?

5.Who owns all the master records the band makes?

6.Assuming the band breaks up, can individual band members use some of the group’s songs in future projects?

7.Does the agreement address issues such as unused recordings and songwriting credits?

Conclusion

Divorces can be messy and frequently leave in their wake a lot of hurt and hate. Band partnership agreements are like pre-nuptial agreements in the sense that usually no one wants to discuss them at the beginning of a relationship, but frequently they save those who execute them from considerable amounts of stress, time and money many years down the line. However, just as there can be a bad pre-nuptial agreement, there can be a bad or poorly drafted band partnership agreement. With music bands, there are four potential problems that could arise: (i) No contract; (ii) Outdated contract; (iii) Vague and ambiguous contracts; (iv) Incomplete contracts. 

Frequently, there is simply no agreement to talk about. When there is no contract and a breakup occurs, the best approach may be to try alternative methods of dispute resolution such as mediation and conciliation before heading to the courts. Where there is no contract, intellectual property issues can be resolved amicably if band members collectively keep good records of each member’s writing and contribution to each song. Unfortunately, such records usually do not exist. 

Oftentimes there is a contract, but the contract is old and outdated and no one remembered to update the contract. A contract can be outdated for many reasons. Sometimes technological advances opens up new revenue streams that were not contemplated when the band was formed. Other times, band members get involved in new projects that no one saw coming and were not addressed in the original agreement. To avoid the problem of a band partnership agreement becoming outdated, the original agreement should have a clause that stipulates that the agreement must be reviewed and updated periodically. 

Vague and ambiguous contracts are dangerous and must be avoided at all cost. The problem often arises because of bad lawyering or because members of a band decided to draft the contract themselves. A vague and ambiguous contract can be worse than no contract. Unfortunately, by the time ambiguities in a contract are discovered there is usually a problem. To avoid this problem, the best advice is to seek the counsel of lawyers and law firms with expertise in entertainment law, business law and intellectual property law.

A final problem has to do with contracts that are not detailed and comprehensive and do not address all the issues that can come up in the life of a music band. From the standpoint of intellectual property, an incomplete contract would be one that does not address every relevant intellectual property. Some measure of flexibility is required in contract drafting in order to address new eventualities. Imagine a band agreement that addresses revenue arising from the sale of CDs but is silent regarding licensing revenues that can come from a multiplicity of sources today given significant advances in technology. Once again, to avoid this problem, the advice of a lawyer with demonstrated expertise in entertainment law, business law and intellectual property law is necessary.

As with a marriage, there are many reasons why musical bands break up: creative differences, decision of individual members to launch solo careers, irreconcilable differences, death of a member, drug addiction, and alcohol.A good band partnership agreement must discuss how the tangible assets (e.g. leftover stock, gears, equipment, and cash) as well as the intangible assets of a band will be divided in the event of a breakup. A carefully drafted and duly executed band partnership agreement will go a long way in diffusing conflicts and will ensure that valuable time and money is not wasted in court in the event of a breakup. 

Dr. UcheEwelukwaOfodile

LL.B. (Nig.); LL.M. (London); LL.M. (Harvard); SJD (Harvard) Professor of Law, University of Arkansas School of Law