A band agreement is a legal document that every band, big or small, should take seriously. So what is a band agreement and how do you make one?
A band agreement, also commonly referred to as a band contract or band partnership, is a legal document designed to protect the band, its members, and the band’s assets. It’s a contract that clearly defines management and key decision-making roles, too. And yes, your band should definitely have one!
Here’s a hypothetical for you. You just released an album and you’re halfway through a tour when out of nowhere, a member of your band ups and quits without warning. This bandmate wrote three of the album’s twelve songs and designed the band’s logo. What’s going to happen next?
Without a band agreement in place, there are some important questions in dire need of answers. Who owns the rights to your songs? Is the exiting bandmate entitled to royalties? Can you keep using that band logo? And who gets to decide if potential replacements get in or not?
Bandmates leaving can at times get as ugly as a messy romantic breakup. Emotions can run hot. Tempers can flare. And managing intellectual property in these situations can get tricky fast. It’s one thing to figure out who in a personal breakup gets to keep that Stevie Wonder record on wax. It’s another thing entirely when long-term financial earnings are on the line for a band. That’s why a band agreement is absolutely vital for any act doing original music, regardless of how serious or ambitious the group is currently.
What is a band agreement, exactly?
So what is a band agreement? A band agreement is a contract between you and your bandmates that outlines how the business side of the music act will operate. That’s an oversimplified way of putting it, of course. Band agreements are flippin’ complex and have a lot of moving parts.
Before we dive into this topic any further, it’s important we state two critical facts right out of the gate: Your band is a business. It’s not just a hobby and it’s not some friends jamming. And a band agreement is, for all intents and purposes, a business contract. It’s a legally binding formal document that everyone in the band needs to take seriously.
It doesn’t matter if you’re doing sold-out nights at Wembley or playing for gas money and free food at a quinceanera. Your band is operating as a business as soon as it starts handling any amount of money, big or small.
What does the band agreement actually do?
A band agreement clearly answers some very important questions about the business operations of the band. It covers:
- How the band defines and structures ownership
- How a band operates
- Who in the band is responsible and liable for this or that
- How the band handles income
- Who owns the rights to the band’s name, original songs, master recordings, etc.
- What equipment and other assets are the property of the band itself
- How the band makes decisions and comes to agreements
- The personal responsibilities of each band member (showing up to practice on time, buying their own guitar strings, etc.)
Your band might have some or even all of these questions figured out already. Maybe you have verbal agreements in place. But it’s important to get all of this in writing, and have a professional band agreement put together by an actual lawyer. These questions are frankly too important to leave up to chance, and verbal agreements don’t always hold up in court. And that’s especially true when dealing with the minutiae of financial percentages and the finer details of intellectual property management.
Drafting your band agreement
Most lawyers are busy people. They’re working, they’re golfing, they’re chasing ambulances and smacking ice cream cones away from toddlers and whatever else lawyers do for fun. And lawyers are expensive, too—wasting their time costs you money. So it helps to have some questions figured out before you start making phone calls.
You shouldn’t attempt to write your band agreement entirely yourselves, but you can certainly draft it ahead of time. You’ll want to sit down with your bandmates and have a fairly lengthy discussion about the contents of this agreement, taking detailed notes on everyone’s input and coming up with conclusive answers to a whole big mess of questions.
This is the part where this article gets excessively long. As we mentioned earlier, band agreements are huge and complex legal agreements that cover a lot of topics. That means you and your bandmates have some serious work to do as you wade through these questions and come up with clear, definitive answers to each one. So gather ’round, put some snacks out, and answer all of the following questions together as a group. This is a great place to start and should cover most, if not all, of the questions an entertainment lawyer will want you to answer.
Up first will be questions about your band’s identity and its organization.
- What is the band’s name?
- Who is recognized officially as the band’s founding member(s)?
- What are the legal names of the individuals who are official members of the band? Include their full contact information here, too
- When did the band officially form?
- Did the band previously have other members who’ve since left? If so, who were they? Did they contribute any intellectual property (songs or parts of songs, logos, album art, photographs, or other creative contributions) or other assets in use by the band today?
At some point, your band should register legally as a business. So this is also a great time to figure out how that business will function. Take some time to read this article from the Small Business Administration explaining the different types of business structures to choose from. Most bands will want to set up as a partnership or limited liability company (also known as an “LLC”), but do take the time to read that article and check out the SBA’s other free resources, too!
Obligations, responsibilities, and liability
Now let’s figure out who is responsible for what, and set the expectations for each band member. Who handles …
- Internal band management: Does the band have one specific leader responsible for key decisions, or do members get to vote on various issues? How many votes does everyone get? What happens if there’s a tie?
- Recruiting new musicians to the band
- Hiring staff, like band managers, instrument techs, graphic designers, etc.
- Booking gigs
- Managing the band’s website
- Managing the band’s social media accounts
- The band’s treasury; making sure bills are paid and royalty checks are processed
And now let’s take a look at some questions about the obligations of each band member:
- When are band practices and meetings? How frequently can someone miss these events before they’re in trouble?
- What’s the correct protocol for missing a practice or meeting? What constitutes an excusable absence?
- Where does the band meet prior to a gig? How early should everyone arrive?
- Who is responsible for loading equipment before and after gigs and recording sessions?
- Should the band acquire a vehicle owned by the band itself? Who can drive that vehicle?
- Can band members invite guests to practices and/ or recording sessions? Are there rules for those guests?
- What other hard rules should each band member follow?
Band assets and ownership
Next, let’s talk about assets and who owns them. In the business world and as far as the law is concerned, assets include any physical or intellectual property owned by or in use by the band as an entity.
Equipment and vehicles
- Are band members personally responsible for purchasing and maintaining their own instruments and related equipment?
- Can band funds pay for equipment for individual band members? If so, does the band member reimburse the band later? What’s the penalty for not reimbursing the band?
- What equipment does the band itself own? In other words, if someone were to leave the band, what equipment or vehicles stay with the band regardless of who invested the money to purchase it?
- Does the band lease or own any physical property, like a rehearsal space or recording studio? Do band members have copies of the keys to this building? What are the repercussions for not returning those keys after leaving the band, or for doing anything that compromises the safety and security of the space?
“Intellectual property” refers to creative works. This includes songs (lyrics, music compositions, and song titles), the band name and certain elements of the band’s identity, recordings, logos, photographs, and all other art. We should note that a band agreement is never a substitute for a copyright.
- Who owns the rights to the band’s name? Who retains the rights to the band’s name if the band were to dissolve?
- Are there official nicknames for the band?
- Who owns the rights to individual songs?
- Does the band retain the right to perform songs previously used by the band after the songwriter has voluntarily or involuntarily left the group?
- Can the band record and release those songs after the songwriter leaves? If so, what continued compensation does the songwriter earn?
- How will the band credit songwriters?
- Who is responsible for handling and safeguarding the band’s recordings, including the band’s recording masters? How does the band handle accessing these masters?
- Who owns the rights to other intellectual property used by the band? This includes photos, videos, drawings, blog and social media content, logos, icons, graphic design elements, websites, etc. Basically anything and everything creative.
Band revenue and expenses
Let’s be honest: most bands aren’t handling millions of dollars. But when your band does end up earning some scratch, albeit from gigging, selling merch, through album sales, or by whatever other means, you’ll need to understand how the band will handle that money, and how you’ll take care of expenses as well.
- How does band revenue get divided? Does each member get an equal percentage, or will you use some other system?
- Does the band itself get a cut of the earnings? If so, how and where is that money kept?
- Who should have access to band bank accounts and credit cards?
- What can band funds be spent on? How much of the income goes toward savings? Who has access to the funds?
- Are band members paying shares of any expenses out of pocket, like rent, insurance, utilities, subscription fees, etc.? If so, what are these expenses, when are they due, and how much do they cost?
- Who is responsible for ledgers and accounting? Who is keeping track of income and expenses and balancing the band’s checkbook? And how are they reporting this information to the rest of the band?
Related: Do bands make any money?
Termination and release from the band
Many bands will, at some point or another, deal with a departure from the group. Whether that person quits the band, gets fired, or passes away unexpectedly, the band should have protocols in place for what happens next.
If a band member resigns/ quits the band voluntarily …
- Does the band dissolve/ “break up”?
- Does the exiting band member retain any intellectual property rights or ownership? Does the band retain the right to continue using intellectual property?
- Is the exiting band member entitled to any future profits? If so, why, and for how long?
If a band member is terminated/ “fired” from the band …
- What offenses warrant termination?
- Who decides if a band member gets fired, and how is this decision reached?
- Does an exiting band member retain any intellectual property rights? What rights do they forfeit as a result of violating the terms of the band agreement?
- Does the former member continue profiting from recorded music sales?
What happens if a band member dies?
- Does the band dissolve? If not, how long should the group wait to replace the deceased member?
- What happens with the deceased band member’s financial shares? Who gets them? What goes to their estate, and what legal obligations are there where you live?
- Does the estate of the deceased band member inherit any intellectual property rights?
- Is the estate of the deceased band member otherwise compensated?
- Does the estate of the deceased get some sort of say in whether the band continues?
Dissolving the band
Bands break up. It’s just something that happens, sadly. But what happens to the band’s creative works, assets, and future incomes if the band does break up and dissolve?
- Who retains the rights to the band’s name?
- Who retains any remaining intellectual property rights? Songs, visual art, master recordings, etc.?
- What happens to the band’s physical assets like equipment, vehicles, property, etc., and the money the band itself hasn’t yet used? Does it go up for sale? Do the remaining band members split up the proceeds somehow?
- Who assumes liability for any remaining debts accrued by the band? Does everyone pitch in financially to cover them?
- Who will assume responsibility for ensuring former band members continue receiving compensation from future profits from sources like album sales, streaming pay, synchronization licensing agreements (“syncs”), etc.?
Definitely have a lawyer write and oversee your band agreement!
When creating a band agreement, your band has a metric ton of work ahead. Just answering all of these questions is a huge task, and now you have to sit down with a lawyer and go over all of this stuff again? Yeesh.
We want to specify though that this list of questions may not cover everything you need to ask. And you shouldn’t try to use this guide as a definitive and complete roadmap to write your own band agreement, either. You should leave this task to professionals and hire a professional entertainment lawyer, or at the very least use an online contract service like Legal Zoom or Contractbook to help you create your band agreement.
Lawyers cost money. There’s no getting around that. They could charge anywhere from a few hundred dollars to a few thousand to draft your band agreement for you. So be sure to take your time with this, shop around for legal help, read reviews, and make sure everyone in the band is okay with chipping in financially to cover the costs.
Most importantly, make sure everyone in the band sits down and thoroughly reads every word of the band agreement drafted by the lawyer before signing it. It’s vital that everyone understands their stake in the band, their rights, and how the band itself is protected in any number of scenarios.
In a perfect world, your band agreement will prove itself to be a happy waste of money. But if your band does ever face an ugly situation, you’ll be grateful for having taken the time and spent the money to get your band agreement done correctly!