Band Agreements: Putting the Dream on Paper

From pages long corporate partnership agreements to simple handshakes; Band Agreements can be as varied the artists themselves. In whatever form they take, a band agreement is a contractual manifestation of band members’ commitment to each other and to the band itself. Simply put, it’s a way for band mates to tell each other and the world, “We are professional.”  It is an all too common myth that a band has to become successful before they start thinking about the business side of music. Band agreements aren’t just for the successful, they are a tool OF the successful.  They are for the committed.

Sean Sedita of Orange Avenue

Orange Avenue (5 piece pop/rock) is one of the most committed bands in Central Florida both to each other and to their fans. Drummer, Sean Sedita was happy to talk about the one contract bands really need, but often never think about until it’s too late. 

WHEN IS THE RIGHT TIME TO TALK ABOUT BAND AGREEMENTS?

“Early on.  When [Orange Avenue] first started I was working as a paralegal so I knew some kind of agreement on paper would be helpful.”  Its more than just business decisions. A band agreement can set short and long term goals and provide a solid vision of where a band wants to be. It also demonstrates another level of dedication to the project. “If you love it and really do care, the band agreement comes with it. Even if you’re all friends; if you’re really serious, you definitely wanna do it.”

A good rule to keep in mind is that a formal agreement should be made anytime another person is given decision making power on your behalf. That can be other band members in their clearly defined roles, or outside members of the team like booking agents or managers. If there is a situation where someone else has the power to commit you to performing, endorsing, etc., a band can benefit from having some kind of more formal agreement in place. 

WHAT IS A BAND AGREEMENT, REALLY?

Although a band is a business, most members just want to focus on the fun parts. Having a custom band agreement in place ca, in part, allow musicians to stop worrying about certain things and concentrate on what they do best. There are standardized forms floating around the internet but to really be effective, the ideal band agreement will contain the things most important to the group.

Of course there are the business decisions.  What happens when money is made? Is it divided or does it go into a band fund? If members put in their own money to help out the band (buying gas, or making flyers) how will they expect it to be repaid, if at all? And if a band shares profits, does that mean they share equally in copyrights? Making decisions about money is often best done before there is actually money coming in. It can help avoid resentment and misunderstandings when the band does start earning. 

A well drafted band agreement can save confusion when it comes to making decisions for the band. It can clearly define roles so if one member goes out and designs and prints 1000 flyers, another member isn’t doing the same thing and wasting time and precious resources. Sean Sedita said, “For us, we all bring equal parts to the table so our agreement is everyone is treated equal.”  No matter how the agreement treats members, it should outline how decisions are to be made. Is it a majority vote? What about a tie? A band agreement can provide the blue print of the band by stating what the group’s long term goals are.  If three out of four guys want to tour and one member refuses to be away from their day job or family for more than a weekend trip it can kill major opportunities. “Everyone has to be on the same page.” And if it’s not put in writing, the conversation still needs to happen.

SO WHAT?

The courts are not clogged with breach of contract actions from independent bands.  Band agreements are usually not for litigation purposes. One of its great benefits is that it allows friends to remain friends.  Orange Avenue has been together for 10 years. “We still have the same goals. And the mutual respect is still there.  But even being that lucky, it’s nice to have an agreement in place.”  Sometimes we all lose out way or forget why we started what we’re doing in the first place. Revisiting such a document can remind and re-inspire. 

Bringing up the subjects of decision making and money can be touchy. And because of that some bands are hesitant to broach the subject for fear of creating a rift among members. At the least, have a trusted friend help facilitate the discussion. To really do it right, hire a professional. And with the business defined, the band can go back to focusing on the music. 

“Our focus has been on getting new fans and making lasting connections.  Because we took care of that business in the agreement, we can make that happen.”

** Orange Avenue latest CD, Small Victories, will be available February 21^st. 

Don’t Be Less – Be More

I bet you had big plans for your 2012.  Did you fall for the perennial promise to “get thy fat ass to a gym?” Sure, it’s free to get started. Like drugs – the gym hooks you with their free samples and juice bars…close enough. But soon you end up spending cash on that ‘free membership.’  

If you go to a gym, you have to look good so you buy new workout clothes that squeeze you into yourself so it looks like you don’t need to even be there; Which is what you’ve told yourself by now because you’re tired for feeling guilty for standing outside a Sabarros just to sniff the pizza. Then there are those who justified getting that X Box Kinect under the guise of getting in shape. Good thing you also got a zombie shooting game as well cause ‘Just Dance 3’ gets tiring after 10 minutes.

All those broken resolutions…  But rather than explain away our decisions to stop depriving ourselves of the much needed preservatives in every stick of delicious twizzlers or renew our promises to quit doing this, or stop doing that – Make a Resolution to be More, not less. When we vow to deprive ourselves we’re really fighting our own instincts.

So with broken resolutions behind, make a promise to be more this year. Don’t try to squash an old habit.  Take up a new one! Don’t stop doing what you do. Just decide to do even better. You can be a better you without feeling that you have to cut back or deprive yourself. 

Go to a new hang out – a new music venue, a new bar.  Add new friends to your circle. 

If you’re an artist, those resolutions should all be to add what’s already there.  Get new fans. Write more songs. Play new Venues. And do this by taking positive action and not from scaling back.

State of the Scene

In order to better see where the Central Florida Scene is now I took a look back at how I saw the scene in previous years. When the economy slumped and venues closed artists bemoaned the lack of places to play. There was an ‘old guard’ who refused to let others rise from the ranks and clung to the old skool way of doing business and breaking bands.

Now, venues are seeing the need to have some entertainment in order to bring people.  Paychecks aren’t what they used to be but there are a growing number of nontraditional outlets to play and connect with potential fans.  There are bands, like The Bloody Jug Band, who are unafraid to travel from their home town, and whose aggressive booking and tenacity keeps them gigging solid.  There are dedicated musicians like Phil Bonanno of SNAFU who builds big events with his full band while entertaining diners all over Central Florida with his solo gigs. There is little need for those old guard gate keepers for either access to fans or information.

But still the State of the Scene is dazed and confused. Everything artists need to know – the how, where, and what else is online and in the palm of their hands. The excuse “But we’re new” doesn’t fly in today’s scene just as it doesn’t fly at a day job. And if that excuse is used for the former you better keep the latter. 

It’s time we all take some personal responsibility for our own successes and setbacks.   No one holds the keys to the kingdom anymore. No one will swoop in, throw wads of cash, and make a superstar of raw talent.  If you have no time to scour the interwebs for information on how connect with fans and industry professionals or the task seems too daunting to begin find the people who know. Friend them – online AND in real life. Build relationships with those who can help you along the way. While being nice may get you a point in the right direction, be prepared to pay. It maybe a drink, a lunch, or an actual fee but don’t forget to help those who help you. 

While many artists remain confused or are hesitant to embrace a new way of doing business, the good news is that resources are there and easily accessible. But if you need help or are just looking to make a new friend find me at local shows of every kind all around Central Florida.

CONTRA-VERSY: VIDEO GAME SAMPLES IN MUSIC

So there I am, bobbing my head to a song, when my 10 year old self hears the old Castlevania theme in the background. I smile.  The song ends with a sound I remember from Super Mario Bros. I smile again, “ I love this song!”

There are many reasons why more and more bands are incorporating music and sounds from video games into their own compositions.  It invokes nostalgia in the listener.  Hearing that song brought me back to a time when my problems could be solved with 20 hours in front of a TV and a rectangular controller.  The use of video game sounds and music also establishes a connection with fans aside from the style and lyrics of the song. 

While musicians are concerned mainly with creating and entertaining there are legal considerations when ever using material they did not create themselves. No artist is too new in their career to ignore these issues.  Copyright laws are not to be feared. They try to balance protecting an artist’s work without stifling the creativity of others. 

          Sampling vs. Cover Songs

Covering a song means playing/recording a song written by someone else. No permission is needed but a compulsory license must be obtained.  There is a set amount to be paid that is dictated by statute.  Compulsory licenses allow the original copyright holder (usually the publisher) to benefit from their efforts without allowing them to keep their creation from the rest of the world.

Sampling means taking the actual recording of one sound or part of something previously recorded and using it in another recording.  It is often meant to invoke the image of the original in the listeners’ minds. Obtaining a license for samples is not automatic/compulsory. Use of samples can require permission from both the publisher and the owner of the copyright in the sound recording itself.  With video games, those are often the same entity but not always. 

          Who Makes These Sounds Anyways?

Those who composed music for early video game systems had to have both the musical chops to compose and the technical knowhow to understand how their compositions fit into a game and system with limited functions. Many of the early composers worked for the companies who made the games and systems and consequently they were not seen as composers or artists in their own right. Their efforts were often ‘work for hire’ much like the old Hollywood studio system. 

Thankfully, those pioneers, like Composer Koji Kondo (Punch Out, Super Mario Brothers, and The Legend of Zelda) are now being recognized for their work.  But because of how the system was created many would be samplers did not see sampling those sounds and music as stealing from an artist.  But not obtaining a license for these sounds is both wrong and illegal even if the owner of those rights is seen as a faceless corporation. 

          It’s Easy to do Things Right

It is important to remember there is still a copyright in the composition itself.  Even using midi versions of the music won’t absolve unlicensed use. And while there are tons of sites offering free video game music downloads, it does not mean those songs are copyright free. There was one group who told me it was too much money and hassle to get a license because they were just a local band. They told me they thought it would be cool to be sued so they’d get noticed.  I gave them the same advice I now give here: It is never cool to be sued.  It costs more and is more a hassle to be sued than to do things right the 1^st time. As far as getting notoriety, no one wants to work with artists who don’t respect the process or the property rights of others.

         

As artist Biz Markie was told by Judge Kevin Thomas Duffy in 1991, “Thou shalt not steal.” [Grand Upright Music Ltd., v.Warner Bros. Records Inc., et al., 780 F.Supp. 182(S.D.N.Y. 1991)] Other cases have shown that there is no number of notes or length of time that relieves samplers of their responsibility to get a license or clearance.  

When considering including a sound or sample from a video game, David Powell, President of TheMusic Bridge, suggests to “first determine who owns those rights by going to the corporation that built the [gaming] system, to see if it needs to be cleared.  While this information can be obtained with a little sweat equity from the artist, companies like The Music Bridge can help make the process less stressful while also considering the budget of the artists.  

While it may be as simple as going right to the source, that source may be hard to find or in another country.  Mr. Powell said, “It might be a work for hire or from a third party, in which case you need to go through the original copyright holder.” Bottom line, “[w]hether it’s from a video game, music, or movie dialogue, it’s still sample clearance.  Get to the bottom of who owns it and obtain a license.” 

Because an artist is signed to a label does not mean they are free to sample and let the label seek clearances. Many label contracts from indies to the majors include provisions that require all recordings delivered to be wholly original. For all but the top selling artists this means, the band must make the effort and bear the expense.  That cost could depend on the notoriety of the artist seeking permission plus the length and prominence of the sample, among other factors.

If you’re a signed artist wanting to include samples of any kind into your songs, check your contract. If you don’t fully understand the contract or the process, seek the advice of those who can help.

Don’t get discouraged or let the process deter from creating the work you have in your head. The song that made my head move and me flash back to my youth was better for including those samples. But if you think that it’s ok to use samples without permission ask Biz Markie. He’ll tell you now, it’s not always best to beg for forgiveness when you can ask for permission. 

**This article is for information only and is in no way to be considered legal advice or exclusive endorsement.  We encourage those with similar issues to the article above to seek the advice of knowledgeable counsel.  For music clearance services contact The Music Bridge or a trusted attorney. **