Holly WinnThere’s a lot of posts about what to look for in a band member agreement. But I’ve always liked to take an example agreement and break it down with comments, questions and concerns as another method of teaching artists or aspiring artist manager’s to look out for in agreements they receive.
Note: I am not a lawyer and as always, the best option is to have an entertainment lawyer review any agreements. But in the case where you cannot afford one, at least you can have some idea of where to start.
BAND MEMBER AGREEMENT
Agreement By and Between:
[list band members’ legal names here]
We hereby agree to the following:
1. BAND. This contract sets forth the terms of which the individuals set forth above participate in the musical group ____[band name here______ (the “Band”). The legal entity through which the Band does business is _______________________. The “original members” of the Group are _____[list band members here].
Would be good to know what instruments they play or who will be band leader or who will primarily be involved in the songwriting.
2. NAME AND LIKENESS: The name of the Band is “____________________” In the event of a split between the original members, the name ____________________ and its derivatives (including but not limited to logos) may continue to be used only by a group comprised of _________________ and at least one other of the original members.
In a way, this ties into termination where it then says any intangibles and intellectual property are forfeited so I am assuming in this case, they are still part of the group, but have separate sub-groups as well? And are they allowed to play with other bands and use equipment or mention the name in those circumstances? I assume it’s up to a vote just like any business decision is per this agreement.
I think it should be stated in how it’s used or how broad the derivative can be like if the add on to the name or change is really bad to the members who aren’t in that derivative group. I would limit the uses a bit more like where it can’t cause negative effect on the original group sales and if it matters if the other non-participating members are still performing or not.
3. INTELLECTUAL PROPERTY: All written music, recordings, and artwork created during the term of this Agreement by any member, belong solely to the band and may not be used by a Band member at any time without prior written permission of the Band. The individual Band members retain their songwriting rights as agreed to in writing or outlined by industry standards. ___________________ shall act as the music publisher for all music recorded or performed by the Band.
Wait, I don’t even remember seeing a term like a start and end date. Well, industry standards can be said to vary, that’s vague — and even the fact you give an “or” makes it more wide open. I don’t like this part, because I think individual songwriters should own their music and have more right to it — I don’t think it should be equal ownership. It really would depend like there’s a difference between owning written music and owning a recording. I do agree that a certain number of original bandmates should approve a licensed use or sample of their recording whether currently in the band or being used by a former band mate. And I could see how using the written music again could harm the original groups sales, but I just think that’s extremely restrictive — like what about the derivatives of the song? And it says “created” but doesn’t mention “used”. Like if I just happened to write a song during that time but it wasn’t used by the band, I don’t think they should own it.
3. COMPENSATION: The profits made from the Band are to be split evenly between the then current members. This does not include profits due to individuals from non-group revenue streams such as songwriting, publishing, etc., which shall not be considered Band income. Compensation will be paid to band members when agreed by a majority vote, with the manager breaking all deadlocks. As a general guideline, the band will try to follow these standards when determining appropriate compensation:
I would prefer to know concretely in what cases I get paid rather than leave it up to a vote. That sounds unreliable. As I mentioned in my last video, there are some cases where money shouldn’t be split evening. Like they mention non group songwriting, but what if I am a songwriter in the group and we use my song? It mentions that non group revenue streams are not included in the split evenly discussion, so how are they split — like band income, how is that split? I am glad this one had a tie breaker, but who is the manager? Have we found him yet? Who decides who gets hired, when and what role he/she will ultimately play?
(i) All expenses will be paid first, including, but not limited to Publicity, Advertising, Management, Travel, Vehicle Maintenance, Lodging, Etc.
This is typical, as well as any advances if with a label who funded. I mean no one wants to go into debt. But there should be some limits like how can be spent on these and who approves them. It says compensation payout is based on majority vote, but what about spending — is that a majority vote as well?
(ii) The money will be put into a general fund under _____________for normal operating expenses as well as a reserve to cover up to six months of said expenses.
(iii) If no outstanding debt exists, 70% will be divided evenly between the members, 30% will be kept by ______________ as a general band fund.
I like the idea as a savings fund almost or to help fund future band endeavors. Everyone should contribute to that. Again though, this even split payout really depends on what role each member plays — like is there a member who secures more of the gigs or licensing opportunities?
(iv) Band members may also vote (by majority) to distribute funds differently if the situation is more appropriate. Use of general band funds will be agreed upon by Band members and management.
Okay, now they cover that question — but that could cause some band arguments like no one wants to take less money. It’s probably better just to outline those appropriate cases right off the bat. And now they cover my spend question, but it would be good to know some general spend items listed out already.
4. CONTROL: Except where specifically noted otherwise in this Agreement, any Band business decision will be made by group vote with member having an equal vote and the majority rules. The group manager will break all deadlocks. Band members have no authority to enter into any agreements with any persons on behalf of the Band. Under no circumstances are Band members allowed to talk to club owners, record labels, radio stations, etc. in relation to any Band commitment. Band members should direct all such inquires to management.
It may be good to have one unbiased hub of management, but management also gets a cut and if I can secure on my own, I may want a bigger cut of the pie. By saying all business decisions, they cover the gamut. If the band members leave, you still have management at the head which means band members leaving don’t impact decisions as much since management would handle either way — but could impact majority vote depending on who is leaving. What do they get when they leave? If you leave that up to management or majority vote, most likely, they won’t get very much as they would if outlined in the beginning, depending on how bad the band breakup was. How would band members be replaced? I am not sure I want that just left to management to decide.
5. BAND MEMBER RESPONSIBILITIES: All members shall have the following responsibilities. Failure to perform these responsibilities shall constitute a material breach of this agreement.
(i) Show up for practices and performances, prepared with equipment and skill required to perform; and
(ii) Maintain all equipment in good working condition, and upgrade appropriately when the revenue is available. Band members are responsible for the upkeep and reoccurring (or replacement) expenses of their allotted equipment. Band equipment is considered allotted to a member when it is used by such member exclusively. Members may request that upkeep or replacement be covered by the band fund. In such instances, the decision will be made by majority vote, with the manager breaking all deadlocks; and
(iii) No excessive drinking or smoking on stage, members shall always maintain good showmanship/performance quality as determined by management and agreed upon by all members; and
(iv) Follow all reasonable instructions of the artist/management team; and
(v) Ensure that member conducts him/herself in an appropriate manner in all professional situations.
(vi) Work the merchandise table or other appearances (interviews, panels, workshops, etc.) at times by the designated by manager. Band members shall actively promote and sell all products by the Band.
(vii) Give scheduling priority to Band appearances including shows, interviews, or other requests. If the member is unable to accommodate the appearance, member must provide at least 30 days prior written notice to Band.
What about social media?
6. TERMINATION: Band members may be terminated only after a unanimous decision by all remaining members (excluding the member in question). Members may terminate their membership in the Band at any time. Terminated members are still entitled to their rights and income relating to such member’s authorship of musical compositions. Terminated member shall have no rights (including copyrights and rights to income) relating to any master recordings, including record royalties, nor to any other income other than income relating to such member’s authorship of musical compositions. Percentages for musical composition such payments will be either agreed in advance by the parties, or determined by industry standards as outlined by ASCAP guidelines. Upon termination, the terminated member shall have no rights to any other Band intangible assets or intellectual property.
I kind of disagree with them not having any rights to record royalties for master recordings done during term. Glad to hear they get income from musical compositions. Although it would be nice to have that outlined here, I know that might be hard to say if you don’t know how many people will work on the composition ahead of time.
7. DISTRIBUTION OF HARD ASSETS. If a member terminates his/her membership, he or she surrenders all rights in the Band’s hard assets (e.g. equipment, instruments, cash). If a member is terminated, he or she is entitled to his or her percentage of the current value of the 3hard assets that were purchased during his or her term as a member of the Band, as agreed upon by the remaining members of the Band. These hard assets include but are not limited to sound equipment, instruments, and cash, but not debt, unless the member incurred an unreasonable amount or abused his/her shared rights as a member of the Band. The current value of these hard assets will be paid out by the Band to the ex-member in lump sum at the time of firing, unless paying in lump sum would put the Band in financial distress, in which case the Band will pay out the current value of the tangible assets over the course of a reasonable period of time with interest on the unpaid balance included. This “reasonable period” will be determined at the time of the firing by balancing the needs of the terminated member with the requirement that the Band not fall into financial distress at any period in time due to the schedule of the payouts. Notwithstanding the forgoing, all equipment previously owned by Band member is solely the property of the Band member. All equipment purchased by Band Member is solely the property of Band Member. Any equipment purchased by The Band is solely the property of ____________unless an agreement is made between all members. All merchandise (Apparel, Albums, Promotional Items, etc) is solely the property of ____________ and may not be taken by Band member for any reason without permission.
8. HIRING: New Band members may be added only after a unanimous decision by the then current members. New Band members will not be considered original member. Their rights in and benefits from the Band will be decided at the time of their admission and such new member shall be required to enter into a written band member agreement prior to admission.
9. FINANCIAL CONTRIBUTIONS: Financial contributions to the Band will be required of then-current members only after a unanimous vote is reached on the specific amount.
10. INCURRING EXPENSES: Band financial spending must be approved by a group vote, with each member having an equal vote and the majority rules. Exceptions to this rule include expenses incurred by the manager as outlined by the band-manager agreement. The group manager will break deadlocks.
11. AMENDING THE BAND MEMBER AGREEMENT: The terms of this Agreement may be amended only by a Band member vote, with each original member having an equal vote and the majority rules. The group manager will break deadlocks.
12. DEATH OR DISABILITY: In the event that a Band member dies, he or she will be treated as if he or she terminated their membership. In the event that a member becomes disabled (physically, mentally, or otherwise) and is therefore unable to fulfill their role in the group, the other Band members can vote on course of action.
13. LEGAL. This Agreement is the entire agreement of the parties in relation to the subject matter hereof and my only be modified in writing as set forth herein. The Agreement shall be governed in all respects by the laws of the State of Oregon as they apply to agreements entered into and to be performed entirely within Oregon between Oregon residents, without regard to conflict of law provisions. Exclusive venue for any claim or dispute relating to this Agreement shall be the courts located in Multnomah County, Oregon.
AGREED TO AND SIGNED:
[Band member names, signature lines, date]
