Music Business Relationships
Band Partnership Agreements
The most important document that a lawyer can prepare for a group is the band organization agreement. There are a number of important issues to cover is a band partnership agreement:
1. Determine the organizational structure of the band and the type of business entity to form, i.e. corporation, LLC, or a partnership.
2. Governance issues
3. Roles of the booking manager, business manager, personal manager, agent, etc
4. Splits of profits and losses/income splits.
5. Songwriting credits
7. Publishing ownerships (where the money is at)
8. How to remove/add members to the band; buyouts
9. Who gets the naming rights
10. End story provisions
1. Each member should be represented by their own legal counsel
2. Each member should have some rights in the process
Kassbaum/Steppenwolf Case *Likely to confuse average person*
Plaintiff filed suit against defendants seeking a declaration that he was entitled to refer to himself in promotional materials as a former, original, or founding member of defendants’ 1960s rock band. Defendants counterclaimed for trademark infringement in violation of § 32(1)(a) of the Lanham Act, 15 U.S.C.S. § 1114(1)(a), unfair competition, and breach of contract, and sought summary judgment and injunction. The district court dismissed plaintiff’s compliant and granted defendants summary judgment. The appellate court reversed, holding the district erred and the plaintiff was not barred by contract or the Lanham Act from truthfully referring to himself, in promotional materials or otherwise, as a former member of the band. The contract’s broad language, “for any purpose whatsoever,” and “all other uses of the name in the entertainment industry,” referred to use of the trade name and not to the simple use of the name to provide accurate historical information. The case was remanded to the district court with instructions to reinstate plaintiff’s complaint for declaratory relief.
Far Out Productions/WAR Case
Appellees alleged that the name used by appellants for their band infringed appllees’ trademark, and appellants alleged that the appellees fraudulently obtained the trademark. In a prior state court litigation, during which appellees filed a bankruptcy petition, it was determined that the trademark was obtained by appellees and other by fraud. The parties subsequently agreed that appellees were the exclusive owners of the trademark and that the state judgment was of no effect, but were unable to agree to subsequently on appellants’ use of the trademarked name. The court first held that, even though relevant issues were the same, the state court judgment did not have preclusive effect since appellees, due to the automatic bankruptcy stay, were not parties to the final state court judgment. Further, even if appellees originally obtained the trademark by fraud, there was no evidence that the parties’ subsequent agreement to appellees’ ownership of the trademark was procured by fraud.
The easiest way for a band to shed itself of its old management is to look for a violation of a sate talent act. To protect talent agents from competition, it is a violation of the act for a non-registered agent to procure employment for a client. The penalties for violating an act can be quite severe, including voiding of the contract or paying back royalties. Because a new group cannot find a registered booking agent to work with until the group signs a record contract, the manager is usually the person who ends up doing the booking.
Ahern v. Scholz (Boston Case)
Appellee former manager filed a complaint against appellant musician alleging breach of contract for failure to pay royalties. The district court found appellant breached a modification agreement, awarded damages for failure to pay royalties on an album, and granted appellee attorney’s fees and costs. The district court denied appellant’s post-judgment motions for relief. On appeal, the court held appellee’s breach of the contract was not material and that there was a sufficiency of the evidence to support the fraud claim. The court also held that appellee’s claim was not actionable under Mass. Gen L. ch 93A §§ 2, 11, under which appellee was awarded costs; the court held that appellant’s conduct did not rise to the level that constituted a breach of the state law. The court ruled that testimony of appellee’s lead counsel was proper. The court held that the question of whether the agreement was rescinded was required to be determined. The court therefore reversed and remanded in part for a trial on the issue of rescission, and affirmed the other holdings of the district court.
What every band needs to get started is a booking agent. A band needs to try out its material on a live audience and establish a following before a record label is going to take a chance on signing the group. Getting into the good venues requires the services of a booking agent. Before a band gets a record deal, no booking agent is going to want to work with the band. It is a Catch-22 situation for the band. See also Lynncase (know the industry or else!)
The best music lawyers are as selective as the record labels when it comes to representing a new a
infringers to rearrange and reproduce the song. The alleged infringers contended that the songwriter gave them an implied license to use the lyrics, and compose the music for them and, therefore, the song was a joint work. The songwriter wrote the words and gave those to one of the alleged infringers, intending that he write the music. The evidence showed that when the songwriter chose one of the alleged infringers to compose the music, the songwriter intended that the words and music be performed and enjoyed together. The issue was a contractual one and, even though the contract concerned a copyright, it did not grant the federal courts jurisdiction over what was essentially a garden variety contract dispute.
Copyright Protections of Music
Copyright principles (life of author plus seventy years)
1. Copyrightable subject matter
2. Fixation in a tangible medium of expression
a. physical rendering of the work
b. material object
d. magnetic tape
e. marble block
3. Work must originate with the author: Copyright claimant must not have copied the work from someone else.
1. Protect heirs
2. Corporate America protections
3. Foster environment of creativity
Originality in Derivative Works
Originality is one of the basic requirements of a work in determining whether it is copyrightable. The originality standard is judged on the selection and order of arrangement of the notes. The choice of notes, scales, duration, and instrumentation, and the choice of words (lyrics) and their sequence, duration, and emphasis all contribute to the individual creativity of a particular musical composition and sound recording.
Newton v. Diamond (Beastie Boys)
The composer’s two remaining claims were for (1) copyright infringement in violation of the Copyright Act, 17 U.S.C.S. § 101 et seq.; and (2) international copyright infringement in violation of the Universal Copyright Convention. He contended that the band had to obtain a separate license for derivative use of the copyrighted musical composition at issue. The composer licensed the rights to the sound recording of his performance of the composition, and