Agreements Between Band Members: Dealing Fairly with Members Who Don’t Write Songs

By George Howard

In many bands there is either a single songwriter or a songwriting “team.”  This archetype was established early — Jagger/Richards, Lennon/McCartney, et al. — and persists to this day.  Whether it’s a single songwriter or songwriting team who come up with the necessary elements to create a copyright in a song, there are often others in the band (drummer, bass player, etc.) who have no claim over this copyright.

Only Songwriters are Automatically Granted Rights Associated with Copyright

As we’ve discussed in prior articles (Control Your Revenue: Transfer Your Rights, Your Public Performance Rights, Your First Asset, The Right To Reproduce, The State of The Music Industry & the Delegitimization of Artists) the owner(s) of the copyright are immediately — upon creation of an original melody and lyric that is “fixed” in a tangible form (i.e., written down or recorded) — granted six exclusive rights.

From these rights comes the ability to make money in the music business. 

Whether the song is downloaded, streamed, used in a movie, or exploited in numerous other ways, it is the songwriter, and the songwriter only, who is compensated for the use of the exclusive copyright. 

So, if the guitar player and the singer write a song, and that song gets used in a TV show, it will be the guitar player and the singer who receive the income from the synchronization fee (and its associated royalties; e.g. public performance royalties if the show is broadcast, etc).  The drummer, bass player and any other member of the band will see none of this money. Zip.

Band members may not understand the rights around either creation of the copyright of the income generated from the various means of exploitation; too often, they believe that all income the band earns will be divided up. 

While they may be correct with respect to money earned from gigs, and potentially money earned from the so-called artist royalty if they are signed to a recording agreement with a label, they are gravely mistaken when it comes to money derived from the exploitation of copyrights of songs they did not write. 

 To be 100% clear, only the writers (© holders) of the song receives royalties from the exploitation of the songs; non-writers do not.

Why Bands with some members who write songs and others who don’t have problems

What often happens is that a band is formed with a single songwriter, and, in the early parts of the band’s career — when the only money anyone is making is coming from live shows — everyone shares in the income equally.  Then, much to everyone’s initial delight, the band gets some momentum, and a label releases a record, a TV show uses a song, the radio starts playing a single, etc., and all of a sudden the songwriter starts getting paid, while the other band members do not.

For instance, when a song is released on a record/download, the writer and only the writer receives a “mechanical royalty”; when a song is used in a TV show/movie, the writer and only the writer receives a “synch fee/royalty”; when a song is played on terrestrial radio (i.e. not Satellite or Internet), the writer and only the writer receives a “performance royalty.”

Pretty soon, the writer has a house and a car, while the other band members are still taking the bus and living at home.

This creates obvious tension in the band, and too often one of two negative things occur: 1. The band breaks up; 2. The writer allocates a percentage of his copyright to the other members of the band.

Avoiding Problems via an intra-band Agreement

There are, however, ways to avoid either of these two negatives: an intra-band agreement. 

Put simply, this type of agreement — among other things, such as delineating decision making processes, etc. — stipulates the division of all money, including money from the exploitation of a songwriter’s copyright.

This can be done any manner of ways, however, the way that seems to work best is to create an agreement that allows all members of the band to share in the income from all sources so long as the non-writing band members are in the band.  If any of the non-writing band members leave the band, they forego any future income — including income derived from the songwriter’s copyrights.

In this manner, two beneficial outcomes occur: 1. Bands stay together longer because there is a more equitable distribution of income. 2. The songwriter does not have to divide her copyright; all she is doing is dividing the income from the exploitation of the copyright, and not the copyright itself.

Why you should not divide your copyrights — i.e. avoid co-writes whenever possible

Too often, people do divide the copyright by giving non-writers a piece of the songwriting credit, and thus a perpetual claim to income derived from the exploitation of the copyright. 

In this scenario, even after a non-writing band member leaves the band, he will still receive income from the exploitation of the copyright…forever! 

Not only is this non-value adding in terms of keeping the band together, it also makes it that much harder to divide the copyright in the future (you now have less of it to divide).

Conclusion

While intra-band agreements should address a number of other things (and you must consult an attorney to draft these for you), a strategy for dividing all revenue amongst members — irrespective of if they are writers or not — must be a central point of any deal between band members.  Doing so creates an incentive for bands to stay together, while not creating perpetual divisions of copyrights that result in past members of a band being paid even while they no longer add any value to the band. 

 

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George Howard is the former president of Rykodisc. He currently advises numerous entertainment and non-entertainment firms and individuals. Additionally, he is the Executive Editor of Artists House Music and is a Professor and Executive in Residence in the college of Business Administration at Loyola, New Orleans. He is most easily found on Twitter at: twitter.com/gah650

 

 

Comments

[Timothy Kemp]

The Library of Congress did a great job allocating copyright ownership with my first recording submitted to them in 1996. I wrote what each member contributed and tried to give equal rights to all band members involved on the recording. The copyright office sent back a letter awarding me as 100% copy write owner with a detailed explanation of why. I've gone through several members over the years since. I guess the Gov. foreseen that happening, like they probably saw with several others long before receiving anything from me. I've never had any past members ask me for any money from that recording, probably because I never really made much, but I still have that letter filed away safe just in case.

[CNByrd]

More good insight from George, as usual. Lack of this understanding between band members is most likely the biggest cause of groups dis-banding before their prime, or never coming close to their potential success.

The songwriter issue is the most critical. Carefully considered split letters are necessary that bring into play any unique offerings by the "non-songwriting" members to the original recording that contributes the the success of the song and the band. I prefer to pay the recording musicians a fee for service, which can alleviate some of the problems. But if a real hit takes off, that paltry session fee would seem insignificant and be a cause for resentment. Perhaps a sliding scale for successful recordings could be considered. Any income derived from usage of the song outside of the original recording, however, would have to fall only to the copyright holders. Even a couple of points to a contributer carefully delineated in a split letter could solve that problem.
Crainorby

[Lowe]

these kind of situations are all what I have lived. Fs hurt over and over again but i'm willing to play , I just hope I don't get my feelings funny thing is that I start to think that like it was written above that those that share the copyright with the other band memembers should be carefull of that act . Clear thing is that when that member quits the band he could and will still have right on that song that you've all shared. This game of music is hard, too hard

[Philip]

I didn't understand if this article meant to really divy up the money earned from selling songs and cds equally between a whole band if only 2 people out of 4 wrote the songs or not.

I'm in a band, and I write everything myself. Shouldn't I be entitled to earning extra through profit made by copyrighting the songs myself?

[Phil]

The thing is unless the singer writes the whole song, and I mean everything. The words the bass the guitar the drums etc then he didn't write the song. He only wrote part of the song, as did the rest of the band members. You remove any aspect of the song and it just won't sound right. Imagine removing the drums from a well known song. Every member of our band is very important to the song writing process. We all have a great understanding of song structure, what works and what doesn't. We all write our own part of the song for our instrument and give advice on ideas or changes to the other band members.

It's a very old fashioned way of doing things and it's time things changed. No wonder band don't last two minutes. Every band member involved in writing the song should get a equal split of the profit from the song and of the copyright to the song. If you leave the band anything that is written from that point on gets split equally with the new band member and not the band member who has left the band. However they should still receive any money made from the songs they were involved in, even after they have left the band because they had input in the writing process of them songs. Its the fair way of keeping everybody on an equal footing and keeping the whole band happy. Keeping the band together!

[Erik]

Great article....much appreciated!

[Jasen Baskette]

The way that the songwriting copywright is written is outdated and unfair to those who create as a band. It is ok if songwriter writes the lyrics, melody, percussion, bass, and all other parts of every song then hires people to play the parts that he/she wrote. For many bands, songwriting is a colaboration of writers that specialize in writing parts for songs for their instrument. In the case of my band, Our singer does not write vocal parts until the rest of the band creates a song for him to sing along to. Most of the time my Band looks to my pecussive rhythms and dynamics for inpiration for their parts. Why does copywright law not recognize percussion as a written part of a song? It sure does not magicaly appear in songs. It makes me want to quit playing all together.

[Andrew Thompson]

Phil, under Australian law, a song is defined as the melody and the lyrics. The arrangement - the bass part, the drum part etc - is not part of the writing, but part of the performance. This is a very clear definition which prevents many misunderstandings. I agree with George's analysis and proposal, but I also think that assigning copyright to band members who aren't entitled to it will also end in tears - with the departure of the songwriter.

[Rene Labre]

If you are the major writer of that which is the indentity of your band.You want to hold the reins tightly upon that which is your intellectual property.Most groups end up splitting up and many times with all of the drama of a horrible divorce.There is no such thing as a nice guy in a bad divorce.You want to remain in the drivers seat of all creative control of anyway that the song can be sucessfully exploited,even in a collaborative work there is a way to do that,yes the co-writers are due their share of the income from the song.But you are free of them in terms of How you may decide to exploit it and set up any deals. with outsides parties without being reined in or sued by ex-members.renelabre.com

[Rob]

in response to posts by people in "bands" who all write together: melody / lyrics - that's the song. You can take any song on the radio, and change the percussion or drums or bass line - and it's still that same song. Change the lyrics/melody... you've changed the song. Just like the article stated, it's other components are part of the song's performance.

That's a tough pill to swallow for a lot of drummers and bassists I'm sure, but it's neither outdated nor unfair... it makes perfect sense and that's the law.

[Horace Moning]

Hi i have a start up label here in Dallas,Tx., how much does it cost to get a band.

[Rene Labre]

I realize my last post sounded pretty heartless yet this is a business you see.And certainly not one famous for it's high level of ethics.Ideally you want to play with a great band of gypsies and share equally the responsibility and wealth,and rare as it is there are some groups doing that.I would love to be in a band like that!With a great and loyal crew as well.The thing I think that made me finally get really hard was a dear friend of mine who was a songwriter in LA who had a chrous lifted direct from a tune he wrote which made for a very sucessful song and he got paid nada.He sat down in an abandoned building with an eight ball of coke,a bottle of Jim Beam and a 38 special,he pawned his guitar to get all three and this wonderful artist and human being blew his brains out.I miss him so!

[liz]

I stand corrected here; to my knowledge, in many countries (still to be brought into the USA) is a law providing for "needletime" for the musicians. It is a performance royalty and is meant to give some payment to the musicians in the band who did not write the actual melody or lyrics, but still contributed to the production of the song as a whole. This also benefits session musicians who get paid a fixed rate upfront rate and nothing when the song becomes a hit. Every time the songwriter gets a performance royalty from airplay on radio etc; a royalty is also paid out for the musicians featuring on the recording- ie. needletime. This is still to be implemented worldwide. I believe this is currently working in Europe, and is in the process of being implemented in South Africa. This is a great way of making sure each member of the band gets a share in some money derived from airplay etc; while each respective person maintains their respective rights. Hence no bad feelings towards the songwriter.

I'm also interested in people's thoughts regarding a solo artist who writes the songs, hires session musicians to perform on the record and then puts a band together to play live.. the same resentments form.. but the bandmembers did not contribute to the initial recording/writing/expenses etc... what split would be deemed fair?

[Wofa B]

Now here's a question. Is a musician who hires a band after her music is released supposed to shared evenly fees paid from gigs with the band? when she pays for everything else, rehearsal space, band management, promotion, etc.

[Jasen Baskette]

For those who actually believe that songs are made up of lyrics and melody only, Take what you consider your songs and remove the drums, bass, and any other music you did not personally write and create. Than ask your self which version people are more likely to listen to. I believe that the answer will greatly vary based on the style of music you are playing. If people want to hear only the lyrics and melody, then release it to the public as such.

If a "songwriter" wants to add some drum music for a song to release to the public and is not capable of writing or performing that drum music, he/she would have to find some one to write the drum music and someone to perform the drum music. That "songwriter" should share writing credit based on the contribution to the song. Otherwise release the song without the drums. You can substitute any instrument for this example.

I am coming to the conclusion that each musician should file a separate copyright for their part of every song. That way the vocalist does not feel that others are claiming credit and rights for their work due to poorly written laws.

[dancingboyX]

A song is the lyric and melody. Songwriter should hold on to these at all cost. All members of the band should be compensated and I think the agreement outlined here is perfect for that. You stop working at a job and you don't continue to collect a paycheck. I was personally responsible for two publishing contracts and every song we had placed with a former writing partner. We had demo singers come in and sing, but the demo singers were not entitled to receive writers credit nor the keyboardist on the track because they did not create the "song". Any writer giving up there intellectual property should really think twice. I know I won't.

[Michael O'Connor]

The song YESTERDAY had 1800 different covers of it, each band or singer that sang the song owns the master rights to their arrangement but they can't license it for any situation without the songwriter's approval. Very few songs become hits based on the first demo. You pay the musicians to come up with arrangements so that you don't have to split up the copyright. Copyright is only for melodic interval and lyrics. There are a million people who can play instruments, very few can write a hit song.

[TuriMusic]

Thia is a great article folks. I just had an issue with my x bass player from years ago. He emailed me asking why i was playing his song. I reminded him years back when we had a record deal all the songs we recorded are copywritten as agreed with all of us as owners of all the songs regardless who wrote them..since we ALL wrote songs together for the band and wrote some songs separately...he owns songs I wrote on my own as well as I own songs he wrote...and the obvious when we wrote together. This is just the agreement we made back than. You have to give credit and share any $ and make sure you do it cause if you don't it could turn into a lawsuit and bite ya in more than it's worth...peace fellow songwriters and musicians...My favorite saying: "Good Luck with That" www.Turi.us

[Kyle]

I read above someone griping about the non-songwriting musicians in the band being as essential components to the music and therefore needing adequate compensation. Seriously, get real. If you take away everything but the lyrics and melody, you've still got the essential components to do a recognizable arrangement of the original composition. The additional musicians don't mean squat, and splitting royalty income with them is doing them a favor. If you want to further argue that they deserve it for their work, keep in mind that a real composer would write all the parts himself anyways, and for the clarity of all legal purposes, that role of composer falls on the person who writes the truly essential, recognizable portion of any song: the melody and lyrics (if applicable).

[Jamie]

It isn't outdated at all actually. Your opinion is the only thing that's outdated. What you mentioned is the arrangement - totally different thing to an actual song, which can recorded many different ways. Basically what you're saying is that if I write a song and do none of the arrangement, but someone else does it and it flops - then years later another person comes along does a totally different arrangement and the song becomes a million seller, then the person who wrote the original arrangement of the RECORD gets the majority of MY income. That's the most stupid thing I ever heard! You will get nowhere if you expect a songwriter to give up their royalties. I will never give up any of my royalties to someone who does that. What I will do is give them a production/ arrangement credit, which I will not get and they can have a higher percentage of the record royalties. That's fair, but not writing away half of the song. And if you're hoping for an amendment in the law, you're going to be dissapointed. Hence the reason it is as it is and has not been updated to suit opportunists. In answer to your question about percussion. I repeat: it is part of the ARRANGEMENT of the RECORD Not the song. Clear enough? And one last thing: if you're that bitter about it maybe you should quit music. It seems that the money is all you're interested in. Maybe you should become an accountant instead?

[Cryptic]

Thanks for this awesome post (like everything else on this blog!). I just have one question: what do you define as melody? Is melody just the vocal melody or is it also the guitar part? I'm assuming it's the vocal melody because although it follows a certain chord pattern and key the vocal melody is entirely different.

[Fronz Arp]

great article. a pretty basic thing that people never do. 'we're friends so everything is fine' only goes so far. thumbs up