Looking for Musical Legal Advice

[LittleAtlas]

Hey folks,

 

Here is the situation. I am the copyright holder of all 10 songs that are almost completely finished being recorded. All my bandmates have laid down their tracks and we are close to mixdown. Everything was recorded in my studio with equipment that I purchased.

 

THEN,

 

The drummer quits the band. He leaves rather upset over some issues, but the bottom line is he just walks away. Leaves us with 3 uncovered gigs and a CD that is almost done. He won't return phone calls....

 

So, the 3 of us remaining decide we are going forward with completing the CD. We now have a new drummer who is cool with the idea of us finishing the CD with the old drummer's tracks. Just as an aside, there is no way to re-record the drums with the new guy....none was done to a click and if you heard the arrangements, you'd understand that its virtually impossible (prog rock, weirdo time-signatures and tempo changes)

 

My question is what kind of murky legal waters are we in if we use the old drummer's tracks? Can he come out of the woodwork and demand payment (even though only the 3 of us remaining are paying the costs of the new CD) ?

 

Also, what if the CD gets picked up for a distribution deal? Is he entitled to monies? I assume he would be.

 

I am looking for some advice on the best way to deal with this situation.

 

Thoughts?

 

Steve

[Master Capello]

I don't exactly know how things work in the US, but I think that the only thing that your old drummer would be entitled to ask is money for the work already done on the recorded tracks. But in the absence of a contract, I'm not even sure he could get anything for that. Since you have the copyright over all of those songs and that (as far as I know) instrumentalists in the US don't get royalties for merely playing on a track each time it is aired, I do not believe you'd be in much trouble if the album makes it big. As I said, I just think he could ask you money for the work done, but in the absence of contract I don't even know if he could have a serious shot at getting monetary compensation.

 

Others probably know more than I do about that.

[ozraves]

there are different views on stuff like this.

 

1. he signed on to do a project which he did not complete. you owe him nothing.

 

2. you've been enriched by his playing (if you make money on this) and owe him a bandmember cut or sideman pay for his part.

 

as he will not undertake to promote the cd the sideman pay might be the most appropriate remedy. however, that's only if the cd makes $$. if you are all hot and bothered about it then you could pay him a few hundred dollars and get him to sign a release. chances are he doesn't give a crap anyway so why waste your money and time worrying about this. however, what to do is your decision.

[GreyMartyr]

LittleAtlas, it is a situation that merits some concern. While it is certainly a coarse situation to have your drummer leave in the middle of a project, it could easily explode into something much more caustic should you achieve even a moderate level of success.

 

I always stress that bands have a formal "band agreement" upon conception of the band. I will assume that you don't, seeing that you asked these questions in the first place.

 

The easiest thing would be to wirte off your former drummer as "work for hire", but since you have no paperwork stating such that would meet extreme resistance.

 

He probably realizes that he has you by the balls. He can simply bide his time and wait until he wants to stir up trouble. His prime motivation would be if you began making money from the album, which has his performance on it. He could easily make a legal case about being owed royalties.

 

With no clearly defined agreement, you are indeed in murky water. It all depends on just how sinister he is. I recommend drafting a "Band Partnership Agreement" to save you and your current members from any future heartaches no matter how peachy things seem now. See if you can seek pro bono legal help for more details. Most states have volunteer lawyer associations that provide free and low cost service for the arts. Investigate and good luck.

 

By the way, what is the name of your band? Where do you guys reside? I am a fan of progressive music and play in the band Divided Sky. In fact, go to

Divided Sky to hear what Im talking about.

 

GM

Divided Sky

Heavy. Melodic. Intricate.

[LittleAtlas]

Thanks, GreyMartyr, for the thoughts. I hate the thought of involving lawyers...kinda screws up the art ; )

 

Anyway, the band I am in is called "Little Atlas" and our website is

 

http://www.littleatlas.com

 

 

We're not really expecting anything "big" to happen with the release, but we gotta cover our bases.

 

Do you have a "band agreement" you'd be willing to post as a reference?

 

Thanks!

 

Steve

[EngineGuitarist]

if you want to cover your bases tell the engineer, or studio manager if was at a bigger place, to redo the billing invoices so it lists all the "new" and "old" band members and the band name and saying what you did on each day. He'll be lying, but it will hold up anywhere. I am don't provoking you to break the law or encouraging you do break the law, i am merely pointing out a way around your situation that happens everyday. well, maybe every other day.

[ozraves]

i doubt i should bother but...

 

1. honesty is the best rule. lying can blow up in court bigger than anyplace else.

 

2. the drummer might have his balls in his hands but not yours. he must prove damages to get anywhere on a possible claim. how has he been damaged? i can't see that he has been damaged unless the cd makes some $$. and, then, he didn't fulfill the obligations of a bandmember by promoting it. most likely, he'd be perceived as a sideman for damage purposes.

 

i would credit him on the release but not as a band member.

[LittleAtlas]

We're definitely going to give him playing credit. That's only fair and ethical.

 

We are thinking of having two sections in the liner notes, one that says The band is: LIST THE MEMBERS

 

and a second part about who played what.

 

 

You guys are a treasure trove of good info on the matter. Its hard to think clearly when you're in the middle of the storm.

[Scheming Demon]

If you own the copyrights you have nothing to worry about. If and when you release the album he will not be a partial owner of any publishing, therefore he is not entitled to any royalties.

 

Of course, he could sue you because anybody can sue anybody over anything.

 

The only area I can think of where it might get a little tricky is in the area of performance royalties. I'm afraid I'm a bit ignorant there but this wouldn't amount to much anyway.

 

My advice is to avoid lawyers totally until you absolutely need one. The last thing you want to get involved in is a legal battle.

 

I think you're pretty safe in just letting things go. The drummer does not seem interested at all. This will only become a remote possibility if the tracks with his playing on it become successful and make a lot of money. People will go to any length when money becomes involved.

 

As stated before, get a band partnership agreement between all the band members to avoid stuff like this in the future. My band has one and I'd be happy to email you a copy. If you like it, you can use it as a guide to create your own.