First Publication Date: 21st December 2009
Some aspects to be considered while drafting a Band Agreements are- the nature of properties that may be accumulated by the Band, during its operation; the types of projects that may be undertaken by the Band; the sharing of incomes realized by the Band as a whole; and the conditions of disbandment or for departure of Band members.
A. The Band’s properties
While a Band may come to own several forms of properties over the years, the most valuable of these properties would be the intangible properties called, Intellectual Property Rights. A music Band may own and enjoy copyrighted works as well as trade mark rights to its name and service.
1. Copyrighted Works owned by the Band
The primary point to note is that copyrighted works may exist in various forms, which include:
• Musical composition;
• Lyrics of a song;
• Musical works, encompassing both the song lyrics and their corresponding compositions;
• Sound recordings, encompassing the recordings of the musical works;
• Original Music content provided by the Band on any Internet s
ite, including the Band’s blogs, website, social networking sites, etc.;
• Artworks created for or by the Band and as appearing on the Band’s albums, or on merchandise relating to the Band; and
• Personal news items, write ups, other such information which may be shared by the Band for commercial value (these include autobiographies, weddings pictures, etc.).
The next question that arises is, who owns the Works, including the music of the Band– The Band may have created (or in some cases, bought all rights to) several musical works/ compositions and/ or songs. Some of these may be still in music sheets and unrecorded. Also, the sheets/ songs may have been created/ developed by one Band member, or by two or more members or by the group as a whole (with all members contributing to its creation). Demarcating the contribution of each member and determining his/ her ownership to the final work needs a pre determined rationale. This may be done on a song by song basis, ranking each member’s input, or by simply using a pre agreed to figure for every song. Again, a pre agreed to figure could mean an equal portion for every member; or a division between the principal contributors of the work and the rest of the Band members.
Another factor to be determined is what happens if members leave the Band- would they lose all their rights to Band’s works, or does the Band allow them to retain some rights and claims? This should ideally relate back to the Rights and to the Termination provisions in the Band agreement which envisage post termination issues such as whether a member may perform or earn from music outside of the Band.
2. The Band name
Another important property of the band is its name, which, as a result of conscious efforts and expenditures over time may develop into a valuable brand. The Band Agreement should determine who owns the Band name and what proceeds may be attributed to the Band name. There should also be stipulations about the effects of disbandment and the resulting restrictions on the use of the Band’s name. For instance even after the departure of one member from a big sized group, the remainder of the Band may wish to continue using the same name or for reasons of displeasure or revenue, may choose to adopt an altogether new name. The latter case may save litigation costs with regard to the old Band name, it would, however, involve a whole new budget towards building familiarity amongst fans of the Band’s new name.
Once there is a consensus as to the terms of ownership of the Band’s Works and Brand name, the next question that follows is who will take home the monies received by the band through live performances, through album and merchandise sales, through endorsements and all other forms of earnings. It is, thus essential that the Band take into consideration the various sources of receiving monies and the role play of the members in such earnings. Thereafter it needs to be determined what would be the share of each member from incomes such as royalties, merchandising, sponsorships, or endorsements. The Band members would also need to take into consideration the division of income in case one member leaves or in case the Band is altogether, dispersed and if there should be compensations to and buyout of departing member’s rights.
C. Departure of members and Disbandment
An Intraband contract cannot omit provisions for dispute resolution and conditions on which Band members may depart or on which the Band itself may cease to exist. It is on termination of existence that members will have to deal with the various issues so as to ensure peaceful exits and minimize dispute costs.