The blog’s editors are pleased to present this Q-and-A with Robert C. Lind, the Director Emeritus of the Donald E. Biederman Entertainment and Media Law Institute and a professor of Law at Southwestern. A former semi-professional musician, he has combined his interest in the arts and law to become an expert in several aspects of entertainment, media and intellectual property law. A prolific writer, he is the author or coauthor of widely used casebooks, treatises and study guides on entertainment law, art law, museum law, and media law, as well as copyright and trademark. He worked with blog editors Sarah Meister and Tiffany Samuel, at their invitation, for this chat about frequently encountered legal issues regarding band partnerships, songwriting, publishing and recording companies. This material is provided for educational purposes only and should not be relied on without the assistance of a licensed attorney. Look soon, too, for Prof. Lind’s occasional posts in a new Biedermanblog occasional feature, ‘Ask the Expert ….’
Question: Regarding the use of partnership agreements by a band, is it typical in the music business for bands to incorporate? Why or why not? If a band did incorporate, what agreement templates would then be used to allocate rights in the band’s output?
Answer: It is my experience that bands will typically use a partnership agreement, particularly when the band members begin to get their business matters in order. However, it is not unusual for a band to incorporate, particularly when it has been in existence for a while or there are other individuals, such as managers, who desire an equity interest in the band’s business matters. For example, the Beach Boys are incorporated. There are more ongoing legal requirements when dealing with a corporation, so the partnership route requires less time for band members to be concerned with business formalities. Issues relevant to the legal organization of a music group, such as ownership of publishing, termination of members, ownership of the band’s name are addressed in similar manner regardless of whether the structure chosen is a partnership or a corporation.
Q: Regarding exclusive songwriting and co-publishing agreements, could you perhaps explain a bit the business structure of that type of deal, in particular the roles of the different parties? Would it be typical for individual members of a band to each have their own publishing company separate from the publisher contracting with the band? If so, what would be the motivation of those companies to subordinate their interests in the songwriter’s work to those of the publishing company representing the band?
A: One of the matters a band should address early on is what to do about publishing. Does the band create music together, in pairs or solo? Even if the entire group works on the music, do the members want to create their own publishing company or use the same pre-existing music publisher? This is often a matter of personal choice. Does the band member want to have her business matters combined with the other members or separately? Lennon & McCartney used the same music publisher. Members of the Black Eyed Peas each use personal publishing companies. If the band or an individual starts a music publishing company to deal with musical works, it provides for greater control and a greater share of the revenue produced, but it will also likely require a larger music publisher to co-publish or administer those works. In the past, that choice was largely driven by the advances offered to the composers. The size of such advances these days are much lower.
Q: Regarding the interest of record companies who may have a deal with the band, could you explain the interrelationship between the publisher, record company, and the band’s agent?
A: It used to be that when a singer/songwriter signed as a recording artist with a record company, the singer/songwriter would enter into a music publishing agreement with a music publisher affiliated with the record company at the same time. By the 1980s musicians became aware of the benefits of owning their own publishing and not allowing the record company to dictate such matters. No matter what music publisher is chosen, the publishing agreement may refer to musical compositions that will be written for future albums released pursuant to the recording agreement. This is mainly an identification of what musical works fall within the publishing agreement and does not tie the record company to any of the publishing.
Q: Regarding the publisher’s role to find outlets for the band’s music, does that mean that the publisher negotiates deals directly with record companies on behalf of the band, rather than the band’s agent?
A: The publisher does not negotiate with a record company, nor in fact does an agent. The negotiation generally is carried on by the band’s manager and/or the band’s attorney. Part of that negotiation will deal with standard clauses that impact the license fee to be paid for the right of the record company to record a musical work, the copyright of which is owned by the music publisher. A band’s agent is primarily a booking agent for live performances.