Band Agreements: Who Owns the Name, the Money and the Recordings

The short version

A band agreement (also called an inter-band or band partnership agreement) is a written agreement among a band's members that sets who owns the name, the recordings and the gear, how money and costs are shared, how decisions are made, and what happens when someone leaves. Without one, a band doing business together for profit can be treated as a general partnership under state law, with default rules nobody chose and shared personal liability for the band's debts.

The songs are usually handled separately, in split sheets and songwriter agreements. The band's business structure is a job for an entertainment attorney, often with an accountant.

Is a band a partnership if nobody signed anything?

It can be. Many states have adopted a version of the Uniform Partnership Act. Florida's, the Revised Uniform Partnership Act of 1995, says "the association of two or more persons to carry on as co-owners a business for profit forms a partnership, whether or not the persons intend to form a partnership" (section 620.8202), and Washington's uses the same words (RCW 25.05.055). Whether a given band meets that test depends on its facts and its state.

Where nothing else was agreed, Florida's act shows what the defaults look like:

• Profits are shared equally, and losses in the same proportion (section 620.8401).
• Every partner has an equal say. A majority decides ordinary matters; anything outside the ordinary course, and admitting a new partner, needs everyone (the same section).
• Partners are "liable jointly and severally for all obligations of the partnership" (section 620.8306), so each member's personal assets can be at risk for the band's debts, beyond their own share.

The members' own agreement, "whether written, oral, or implied," governs most of their relations with each other (sections 620.8101 and 620.8103). A written band agreement replaces most of those defaults between the members, but the act does not let it restrict the rights of people outside the band (section 620.8103).

For tax, a partnership files an annual information return and gives each partner a Schedule K-1 for their share, and the partners pay the tax (IRS).

What about a band LLC?

A limited liability company is a business structure created under state statute (IRS), formed by filing with a state. The SBA says it protects owners "from personal liability in most instances" and recommends an operating agreement, the members' agreement among themselves, even where a state does not require one (SBA). By default the IRS taxes an LLC with two or more members as a partnership. Fees and rules differ by state, so whether an LLC suits a band is a question for an attorney and an accountant there.

Who owns the band name?

A band name is a service mark, a trademark for services. Rights begin "as soon as you start using your trademark with your goods or services" and are limited to the area where it is used (USPTO). Federal registration adds nationwide notice, a legal presumption of ownership and access to federal court (USPTO), and the USPTO's trademark search shows whether someone already uses a name. Registration settles ownership against outsiders; the band agreement settles it among the members.

The best-known reported dispute is the Commodores. In 1978 the six original members and their manager formed a general partnership whose agreement said that if fewer than a majority withdrew, "the remaining majority of the Partners shall continue to have the right to use the name." Guitarist Thomas McClary left in 1984 and decades later toured as "The Commodores Featuring Thomas McClary." In Commodores Entertainment Corp. v. McClary (11th Cir. 2018), the court held that he left his common-law rights in the name behind, with the members who kept using and controlling the group, following the Ninth Circuit's Robi v. Reed (1999), a dispute over The Platters. He could still bill himself as "Thomas McClary, founder of The Commodores," and he kept drawing royalties on songs he wrote or recorded before he left.

How are band income and expenses shared?

The agreement sets the percentages and the order money moves in. A common structure pays costs first (van, rehearsal space, merch, the manager's commission) and splits the rest. Equal shares are the partnership default; bands choose unequal ones where contributions differ.

A four-piece that clears $8,000 on a run of shows and spends $2,000 on van rental, gas and a sound engineer has $6,000 left, or $1,500 each split equally.

Songwriting income usually stays out of that pot. Performance and mechanical royalties follow each song's writers and their shares on a split sheet. Some bands split every song equally; that is a choice the writers make in writing.

How does a band make decisions?

The agreement says which decisions need a majority and which need everyone. Bands often require unanimity for major deals, member changes, the name and debt, and leave day-to-day matters to a majority or one member. An even-numbered band needs a tie-breaker. Many agreements also set a dispute resolution process, such as mediation before arbitration or court.

Who owns the band's equipment?

Under Florida's act, property bought with partnership money is presumed to be the partnership's, and property a member buys in their own name with their own money is presumed theirs, "even if used for partnership purposes" (section 620.8204). Agreements usually list which gear is the band's. The Commodores' 1984 amendment put the vehicles, the equipment and the name in the partnership.

What happens when a band member leaves?

By default, a partner's notice of withdrawal dissociates them, and in a partnership at will it dissolves the partnership (sections 620.8601 and 620.8801). Where the business carries on, the departing partner's interest is bought out at a price set by a formula (section 620.8701). Those defaults rarely fit a band, so leaving-member provisions usually cover:

• How much notice a member gives.
• Whether the remaining members keep the name, and how the leaver may describe their history.
• How the leaver's share of property and goodwill is valued, and whether it is paid at once or over time.
• Whether the leaver keeps income from recordings made while a member, and loses any say over their use.
• Who carries tours, loans and contracts already signed.
• Whether the others can vote a member out, and by what margin; Florida's act recognizes expulsion "pursuant to the partnership agreement" (section 620.8601).
• Whether a replacement becomes an owner or a hired player.

A band on a label also has the label's leaving member clause. Musician David Lowery describes it as letting the label keep the leaver, keep the rest, or drop either, sometimes with part of the old band's unrecouped balance attached (Lowery); see record deals.

What happens to the band's recordings?

A recording is its own copyright, apart from the song (master versus composition). A band's recording can be a joint work, and "the authors of a joint work are coowners of copyright in the work" (17 U.S.C. section 201(a)). Members can move their rights by assignment, for example to the band's LLC.

The agreement says who owns the masters, how their income is split, who approves a license or reissue, and what a former member keeps. Hired players are usually paid a buyout under a session musician agreement and own no share.

What goes in a band agreement?

What are the red flags?

• No written agreement once the band is earning money or signing contracts.
• A name nobody searched, or one a single member registered without telling the others.
• A clause that hands members' songs to the band without each writer agreeing.
• A leaving-member clause with no buyout formula, payment deadline or rule about the name.
• One member holding the bank, distributor and social accounts with no handover rule.
• A label deal signed before the members agree what happens if one leaves.

When should a band involve an entertainment attorney?

Before forming an entity, signing a label, publishing or management deal, registering the name or changing members, and whenever members disagree about what their deal already is. An accountant helps with how a partnership or LLC is taxed. Each member can have their own attorney, since interests diverge when someone leaves. The which agreement do I need guide maps the other agreements a band meets.

Common questions

What is a band agreement?

A written agreement among band members covering the name, recordings, gear, money, decisions and departures. In a band LLC, the operating agreement holds the same terms.

Is my band legally a partnership?

It can be without any paperwork. Under the Uniform Partnership Act as adopted in states such as Florida, people who run a business for profit as co-owners form a partnership whether or not they mean to. Whether a particular band qualifies is a question for an attorney in its state.

Who owns the band name when a member leaves?

A written agreement usually controls. Without one, courts have looked at who kept using the name and controlling the group, as in the Commodores case, where the name stayed with the remaining members and the former member could still call himself a founder.

Should a band trademark its name?

Using a name creates rights only where the band is known. Federal registration adds a nationwide presumption of ownership and the right to sue in federal court, and searching the USPTO database first shows whether the name is already taken.

Do band members split songwriting royalties equally?

Only if the writers agree to. Songwriting royalties follow each song's writers and shares, usually on a split sheet, apart from band income.

Can a band kick out a member?

If the agreement allows it. Florida's act recognizes expulsion under the partnership agreement and, more narrowly, by unanimous vote. Without a removal clause, pushing someone out can mean breaking up the old partnership.

What is a band LLC?

A company the members form under state law to run the band's business. It can limit personal liability for band debts in most instances, is taxed as a partnership by default, and its operating agreement does the work of a band agreement.

Does a band agreement have to be in writing?

Partnership law recognizes written, oral and implied agreements. An unwritten deal is hard to prove when members remember it differently, while the Commodores' written 1978 agreement was still before a federal court decades later.

Where keysig fits

keysig does not draft band agreements, partnership agreements or LLC operating agreements. It drafts agreements for the songs and recordings around them:

• A Split Sheet records each contributor's share of a song, with their role, PRO, IPI and publisher, for up to eight contributors. The shares must total 100%, and every named contributor signs.
• A Songwriter Agreement covers one song between an artist and one co-writer: splits, publishing, credit and registration. It covers the composition only.
• A Producer Agreement sets an outside producer's fee, share of the recording's earnings, credit and who owns the master.
• A Session Musician Agreement covers a hired player paid a fee who owns no share of the master or the songs.

Any draft can be downloaded as a Word file for an attorney to review. The band's own structure, its name and its buyout terms belong with an entertainment attorney, and the tax side with an accountant.