Writer’s agreements – prenup for bands & songwriters

ID-10057943 Bands writer's agreementsI have often said that being in a band is like being in a difficult marriage, but with four people.   Four people that have to work together, make decisions together, eat together, travel together, and when on the road essentially live together.  If fifty percent of real marriages end in failure what chance does a marriage of four distinct personalities have.  Just deciding on tacos or subs for lunch can destroy a band in a matter of minutes.  I hope your band is destined for greatness, and I hope you write a lot of great music along the way.  But I really hope, when it comes to your songs, you put it in writing!

Writer’s agreements – a little hassle now, one less stress later.

 

There are a lot of things that happen when a band is created.  You decide on the lineup, what kind of music you will play, you come up with a clever band name, and start working on writing tunes.  Sometime between beginning writing and the finished master you need to draft a basic writer’s agreement.  I recommend the contract is drafted and signed before anyone outside the band ever hears the music. Like a martial prenuptial agreement, I realize this may be a very awkward conversation to have.  One band member might think it isn’t important, another could shame you for draining the fun out of being in a band, or the third might say “this is art, not business”. Make no mistake, music is a business – it always has been. These few moments of awkwardness can save a whole lot of headache and hurt feelings down the road.

Hit songs, and music that lives on after the band has broken up.

Imagine, best case scenario, a few months have gone by and your song is tearing up the charts and the music industry people are clamoring to represent you, you will be glad you have the ownership issues worked out.  More commonly though, bands break up.  The good news is that in today’s music market songs can have a life long after a band has decided they can no longer stand each other.  There are so many ways to monetize music like licensing deals and online streaming that can keep your songs earning money long after your bandmates have de-friended each other on Facebook. Having worked out some minor details while everyone is still civil to each other will ensure that your music can keep earning money even after the band is no longer speaking to each other.

“Joint works” – Who wrote what?

If more that one person writes a song it becomes what the copyright people call a ‘joint work’.  You need to determine how you wish to divide the percentages of ownership for each person involved in creating the joint work.  The percentage of ownership you decide on now would help to lock up terms of any future earnings such as licensing payments, mechanicals, writers royalties, and publishing shares on the piece of music.

A true copyright of a song is technically defined by the melody and lyrics, so some divide the ownership 50/50 between the music writer and the lyricist. In this model, if two people worked on the music, then their share would be split out to 25 each and the lyricist would retain their full 50. In another example within this model,  if one member wrote the lyrics and co-wrote the music with one other band member then it would end up with a split of 75/25.  Complicated?  Can be.

Many bands chose to make it simple and work as a team, dividing the ownership equally amongst each other.  For example, a four person band would divide the share to 25 percent each.  I find this to be a fair policy.  Say, for instance, during a jam session the drummer laid down a killer groove that inspired the guitarist to complete a song- doesn’t the drummer deserve some financial credit?  What is a melody anyway?  Think about the opening bass line for the Commodore’s “Brick House” – even though it is a bass line and not vocals I would consider it a distinct melody of the song.  Lots of grey area in song writing and copyrights. Make it easy with an equal split.  I always do equal splits when working with co-writers.  There is such a back and forth in songwriting that figuring out an actual split for me seems near impossible.

However if equal split is not going to work for your band – you can choose to divide the credit into any combination that equals 100 percent!  One example would be that the main songwriter gets 75 percent, while the other three members of the band get 8 1/2 percent for their contribution. There are millions of possible combinations with just as many reasons.  You many even wish to come up with a fresh writer’s agreement and ownership split with each new song!  The main challenge is to come up with a formula that works for your particular situation that everyone in the band can live with.

What do you put in the contract?

Wa_contract_250 writer's agreementsI didn’t include a contract on this page because there are just too many variations, but you can find many templates to start with online if you do a little searching.  Some good, some bad – but if you pick out the parts that work for your situation you can come up with something basic fairly easily.  I no longer play in bands but I do work with co-writers and there are several things I like to include in my writer’s agreements:

  1. Title of the song and date.
  2. Monies. Names of each band member with their share clearly displayed for division of ownership and all receivable monies.
  3. Alterations. States that no future song alterations will change the percentage split.
  4. Rights to Material. A warranty that all parties have submitted original material to the song and have not knowingly plagiarized existing material.
  5. Publishing. Though the money is divided by the percentages laid out earlier I like to assign publisher rights to one person to control the dissemination of the song.  This can keep the song alive after people are no longer in contact.
  6. And of course, signatures of everybody involved.

The assigning of the publishing (number 5 above) is a whole other subject for another post, but in a nutshell you could divide publishing with the same percentages you did for earnings.  However, having several people control the publishing can complicate licensing deals – so I like to control publishing myself but clearly state the money will still be split as per the ownership percentages.  (The publishing will most likely eventually get sold or transferred anyway.)

Another thing I add to my contracts, when applicable, is who is responsible for upfront cost; like studio time, session musicians, engineer/mixers or any other expenses incurred.  You can split the cost up front or take the cost from the other members out of future gross earning.  If you state it clearly in the contract, and keep good track of all income you should save a lot of future headaches.

Conclusion

Spend some time looking at writer’s agreements and deciding what is important to you! Make sure, at the very least, you come up with how you want to split the percentages of your joint work.  Not only will it save you future headaches but you will eventually need to register the percentages with your PRO (performing right organization) anyway.  Imagine you laid down a killer bass line on a song that was the driving force into it becoming a mega-hit, but you hadn’t worked out your co-writer’s percentages! Another bandmate who wrote the lyrics and melody could claim full writer ownership – you would be out of a lot of money!  Protect yourself, protect your band, protect your songs – they could have a long life.

Feel free to share any personal stories in the comments below, I love to hear them!

*I am not a lawyer! This is not legal advice just some helpful suggestions.  If you are in doubt about how to draft a contract, if you feel your contract is not thorough enough, or if you are wondering if you should sign one presented to you – contact a lawyer for proper legal advice.

(Photo courtesy of phanlop88 / freedigitalphotos.net)

2 Comments:

  1. Some very interesting and SOUND advice Brian Roth.

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