Unpacking band agreements + song splits with Arts Law

Thursday, 16 Feb 2017

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To lend a hand with legals, we asked Rebecca Simpson, Solicitor at Arts Law to answer some common questions about band agreements and song splits.

BAND AGREEMENTS

  • When does my band need a partnership agreement and what types of agreements are there? What should an agreement include and who needs to sign the agreement?

Sometimes, negotiating and signing an agreement with other band members can be a bit awkward to discuss at first. Sort of like a prenup - no one wants the other person to think they aren’t trusted. But having an agreement in placer can really help avoid problems down the track, and keep your band strong and happy for years to come. That means you should have a band partnership agreement in place as early as possible!

We know that bands prefer to spend more time playing music than dealing with agreements, but the risk is that if you ignore the legal stuff it will come back and eat up more of your time later on when you’re trying to figure out which band member owns what, or how to handle things if a band member leaves.

Arts Law has worked with top law firm Allens Linklaters to develop a Band Partnership Letter agreement together with a list of the clauses and what they cover. The letter is usually done by the founding member to the others in the band, and the others sign it when they agree.

  • What sort of legal structure should the band be, and does this affect the agreement?

A band usually operates as a partnership, which is exactly what the Arts Law Band Partnership Letter agreement is for. However, a band can sometimes have an alternative structure, for example being incorporated. Contact us at Arts Law if you are unsure what legal structure would be best for your band.

  • Should an agreement outline how any income we earn should be divided? How do we determine this?

Yep! There is an entire clause that deals with money in the band partnership agreement, helping you decide, for example, whether you will operate with a joint bank account or have a band member hold earnings in a trust account. We have included some notes explaining each clause in the agreement to help you figure out which option will work for you.

  • Do we need a lawyer to draft the agreement?

No, but you should get a lawyer to look at it before you sign. Use the Arts Law Band Partnership Letter agreement or draft your own (or we can refer you to a private lawyer) to start with and then submit your completed letter agreement back to us for a document review. That way a lawyer can look over it and give you the confidence in knowing that the important details have been dealt with correctly. You will need to be subscribed to Arts Law to access this service. Subscriptions last for 12 months from the date you sign up.

  • Do we need a Justice of the Peace to certify the agreement?

No. You do not need a JP to certify the Band Partnership Letter agreement on the Arts Law website. The letter is signed initially by one member, usually the founder, and the other band members sign when they are ready.

  • What determines an official contract?

A contract is official if there is an offer, acceptance of the offer, consideration and intention. A good way to think about it is that there has been a “meeting of the minds”. You enter into contracts every day but to understand in more detail have a read through our information sheet – Contracts: An Introduction or read through our factsheet What is a contract?.

  • What are some terms that might be red flags I should look out for in an agreement?

This can depend who you are contracting with and where the contract is from. Our main tips for contracts (from our handy booklet Answers for Artists) are:

  1. Do your research: make sure the other party is reliable and not bankrupt
  2. Look for clauses concerning your artistic property (copyright and moral rights) and make sure you understand what they say
  3. You should be given time to properly read all written agreements and never sign anything you don’t fully understand, seek advice before agreeing to anything.

Arts Law has a whole service dedicated to reviewing agreements for artists so do reach out to us for advice if you ever have a question about a contract no matter how small - we are here to help you!

  • What happens if I leave the band? What happens if someone new joins the band?

A leaving band member may still be entitled to income relating to their ownership of copyright in any music, lyrics or sound recording, unless it is otherwise agreed and subject to any APRA AMCOS split. You should seek specific advice from Arts Law on this point. 

When any band member leaves or if a new person joins, the old partnership ends, and the finances of the old partnership need to be wrapped up. If the remaining members wish to form a new partnership, this should be documented too. There is more information in the notes explaining the Band Partnership Letter.

Also, the leaving member may still have moral rights so you need to check the credits! For more information, see Arts Law’s information sheet Moral Rights.

  • If the band splits up, who owns the songs and who can play the songs?

Ownership depends on many variables including who wrote the songs and what has been agreed about ownership.  It would be a good idea to seek legal advice from Arts Law on this.

If the song has been registered with APRA, it can be performed at any venue that has the appropriate APRA licence. If the song has been commercially released, anyone can record the song provided they get the appropriate licence from AMCOS.

  • Who owns the rights to the band name?

The band name usually belongs to the band members that form the partnership. However, you may want to register the name as a trade mark. The owner of the mark depends on how it was registered. For more information about the legal status and protection of your band name, see the information sheet Business Names, Trade Marks and Domain Names.

  • What happens if we’ve signed a publishing deal as a band but one member wants to leave the band? 

Your starting point is the contract with your publisher. There may be fees and charges involved. Contact Arts Law if you need advice on your specific contract. It’s also important to remember that a partnership ends when someone leaves. Once you’ve sought legal advice, the band will need to address your obligations to your publisher and this may involve renegotiating parts of your agreement. Get some advice as these issues can get tricky!

  • What happens if someone in the band is already signed to a publishing deal when they join?

The obligations to the publishers need to be considered. Sometimes those may affect the ownership or licensing of copyright in works that the member creates in the future. In some cases, an arrangement needs to be agreed with the publisher, APRA AMCOS and the band, before being able to license songs to other people. You can contact Arts Law for advice in this specific scenario.

  • What can happen if an agreement is not in place? 

We see lots of disputes around payment of members, ownership of band assets and commonly, issues where a band member is leaving and conflicts have arisen from this.

For some examples of how agreements have been helpful, read about composer Andrée Greenwell’s production contract negotiation, Australian band Whitehouse seeking advice on their copyright splits as a band before signing a record deal and the Brow Horn Orchestra formalising their band partnership as they realised their popularity was growing very quickly.

It’s true that things move so quickly in this industry and if your band takes off overnight you want all your legal rights covered.

SONG SPLITS

  • Should a band agreement outline how ownership of songs is split? What if this changes over time or isn’t the same for all songs?

Yes! Ideally you work it out song by song, as it probably won’t be the same for all songs. Do this before you register the song with APRA AMCOS.

The ownership should accurately reflect who the copyright owner is of the separate components of the song - the music, lyrics and sound recording. This should not change over time, especially if it is agreed on a song by song basis.  
  • How should we determine songwriting splits? What should we consider?

Figure out who the authors of each component are or will be. This is easy for example if one person wrote 100% of the lyrics and the other wrote 100% of the music. When you’ve written a song with others, it’s a good idea to have a written agreement that talks about the share of copyright you each take. Check out our information sheet on Music Copyright to help you understand who an author is of each component and how to split songwriting.

  • What are some examples of different ways bands determine splits? What about songwriters in sessions with other writers and producers?

Songwriting can be a solo activity or a collaborative effort. In some writing partnerships there is a clear distinction between the person who writes the musical work and the person who writes the lyrics. Alternatively, it may be that each person has made an equal contribution to the authorship of the particular musical work or lyrics or it may be that the respective contributions are quite different and the collaborators want to recognise those differences by allocating different percentages of ownership and shares of revenue.

READ MORE ABOUT WORKING WITH CO-WRITERS

  • Should we set rules before we start writing? What if we are just jamming and write something we want to use?

Ideally you will set rules beforehand, but if things are unfolding creatively choose a time that is separate to the song writing process to talk about the rights in the songs, preferably before you complete them or do anything with them, like perform them. That way, you can get this step sorted out and move forward with the music.

Once you’ve made a song with someone else, chances are you might both share the copyright together, and this can be a beautiful and complex thing from a legal perspective. Try and get the band partnership and copyright stuff sorted before you make the magic.

  • Is registering our songs with APRA AMCOS enough to prove we have agreed on splits or do we need something else in writing?

An APRA AMCOS registration would probably be considered to be good evidence about the agreement as to copyright ownership, but on its own, is not “the copyright agreement” between members so you need a separate agreement about the copyright. The registration should be a true reflection of the copyright ownership, either as original authors, or as otherwise agreed.


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