Firing band member/co-writer, Copyright issues?

[darwin]

My band has the unfortunate need to fire our drummer. The reasons for us needing to replace him are not germane to the issue, however, they are very valid reasons. Let me give some background. We are an unsigned band that we haven't named yet, and we do not have a signed agreement that details how this situation is to be handled. We are in the process of finishing a new album with original material that he helped write and play on. Since we are going to spend alot of energy and resources marketing this independent release, we want to protect any financial success that the release has. Our position is that he should be credited with writing and playing credits on the album, and that's about all that we are willing to give him. I am sure that this is not the first time in the history of music that this has happened. Any advice on negotiating these sharky waters.

[Richard Monroe]

My best advice-Suck it up, pay the money, and consult an attorney who specializes in entertainment law. The money you save will be your own!-Richie

[Lopp]

Yup.

Either:

Drop his stuff, or

Contact an attorney to draft up a contract to have him sell all rights to the songs to you.

[gec]

Originally posted by darwin
My band has the unfortunate need to fire our drummer.

Happens

Originally posted by darwin
The reasons for us needing to replace him are not germane to the issue, however, they are very valid reasons.

O.K.

Originally posted by darwin
Let me give some background. We are an unsigned band that we haven't named yet, and we do not have a signed agreement that details how this situation is to be handled.

1st Big Mistake

Originally posted by darwin
We are in the process of finishing a new album with original material that he helped write and play on.

1st Big Problem

Originally posted by darwin
Since we are going to spend alot of energy and resources marketing this independent release, we want to protect any financial success that the release has.

Sure / Understandable

Originally posted by darwin
Our position is that he should be credited with writing and playing credits on the album, and that's about all that we are willing to give him.

That may be your position but not his

Originally posted by darwin
I am sure that this is not the first time in the history of music that this has happened.

Far from it

Originally posted by darwin
Any advice on negotiating these sharky waters.

Yup.... advice from me is drop him, find out what he wants if its too much go on with the project without him. More than likely you / or him can't afford an entertainment lawyer for the dispute and this would only be relevant if their is a significant amount of money at stake. At this current time your record hasn't sold 250k, so until it does FUCK HIM....and if it does who cares by that time....easily pay him out at that point anyway.... So my advice is to go along with your project as if he weren't a part of it...

[Buffalo Bob]

"My band has the unfortunate need to fire our drummer. The reasons for us needing to replace him are not germane to the issue, however, they are very valid reasons. Let me give some background. We are an unsigned band that we haven't named yet, and we do not have a signed agreement that details how this situation is to be handled. We are in the process of finishing a new album with original material that he helped write and play on. Since we are going to spend alot of energy and resources marketing this independent release, we want to protect any financial success that the release has. Our position is that he should be credited with writing and playing credits on the album, and that's about all that we are willing to give him. I am sure that this is not the first time in the history of music that this has happened. Any advice on negotiating these sharky waters."



Is he listed on the copyrights as an author? If so, you have to pay him. If not, you are not legally bound - BUT - it's morally reprehensible to deal with a cowriter in this manner, regardless of your justifications.
Be careful how you treat people on your way up - you're going to meet the same people on your way down.

Bob

[darwin]

Bob, you made me feel like I should go to church with all the talk about morals (btw, what does morally reprehensible mean?). All kidding aside, I do like the idea of attempting to reach some sort of equitable dissolution. I am just wondering if somebody else had been through this, and I wondered if somebody could share with the group how their situation was resolved.

[VOXVENDOR]

Lose the songs bro.


Unless the songs were strong enough to be the next "Teen spirit" or "Beat it", Lose 'em...

More hassle than anything.

Start fresh.

Joe

[Buffalo Bob]

With a name like Darwin, I wouldn't expect you to go to church.
I did not comment out of rightous indignation. You posted, basically asking for advice on how to screw over your drummer and protect the "financial success that the release has. (I envy your confidence). Now you say you want an "equitable disollution". That's a far cry from "and that's about all that we are willing to give him."
Vox is right. It just isn't worth the hassle, not to mention the bad karma.

[MartyMcFly]

Yeah man!!! What he said!!!

[PhilMckracken]

I am an attorney. NOt just an attorney but an attorney involved in entertainment law, a musician and, as it happens and fan of this site.

You must understand that a copyright filing is merely evidentiary. As soon as someone writes material, they own the copyright. Property ownership is generally defined in legal terms as a bundle of rights. There are many different ways to exercise rights and in various contexts that have diferent meanings, implications and applications.

Now, to step from the theorectical for a moment, you should consider his contribution "work for hire". Pay the man a flat fee and get a release. You will be able to do this by telling him that, in fact, it was work for hire. the release will protect you against future litigation should the music make money.

Tell the man this. At this point, he will be the only one in the plus category. However, becuase he was engaged with the other working together in a particular time for a particular purpose, that is, the completion of the recording, there is ample grounds for the claim of work for hire anyway. This is important. If the man does not want ot sing the release, he gets no money, and, you will ultimately claim it is work for hire anyway. Unless he is certain that his share will be worth more than about $50,000.00, litigation may be cost prohibitaive. To be sure, the threate of litigation is a none to appealing prospect for the band either since it could easily wipe out any profits generated by the album. But the most important fact is that you stand a good chance of being able to win ont he work for hire basis in which case his share of the profits would be negligible.

You should be fair and pay a fair rate for two reasons. First, there is a moral responsibility eluded to by someone else herein and secondly, if you pay a B.S. amount, he will be able to claim the the payment was a sham to try and make it look like work for hire when in fact it was not. By trying to under pay you stand the chance by biasing a court in his favor and pushing a borderline decision on the work for hire issue in his favor. Be careful on this one. Court is not the place you want to end up it at all avoidable. Just becaus you may have a strong legal position does not mean it will not cost a fortune establishing your rights.

Hope this was helpful.

If you need further assitance, please feel free to e-mail me at either JWLAWPI@AOL.COM or JWEINSTEIN8@RR.NYC.

[Lopp]

Originally posted by PhilMckracken
if you pay a B.S. amount, he will be able to claim the the payment was a sham to try and make it look like work for hire when in fact it was not. By trying to under pay you stand the chance by biasing a court in his favor and pushing a borderline decision on the work for hire issue in his favor.

How often does this work as opposed to not?

For example, a contact is drafted where both parties agree to the terms. In particular, one party agrees to sell all their rights and the other party agrees to pay $X for the rights. Are you saying the court is actually going to declare the contract unconscioniable. Such a decision is rare in most areas of law. Is entertainment law that much different?

[sjjohnston]

I think I'm in general agreement with the consensus here:

What you should do is reach an agreement with him on the terms of his departure. Write the agreement down. It may involve paying him some money (or some share of future money).

In my opinion, both you and he will be better off if you work with lawyers to reach this agreement and write it. The right way to do this is for the continuing group and the departing drummer each to have a lawyer (i.e. two separate lawyers). The dangers of doing this without lawyers are (i) you don't really know what your negotiating position (your "starting point," so to speak) is -- so you don't really know what you're giving up (or getting); (ii) the lawyers can provide practical advice on what terms will work and (iii) the lawyers can make sure you write your agreement properly.

On a sort of side topic: I sort of wonder about the "work for hire" position. First, it strikes me that the band is probably a general partnership (given the apparent absence of any action to make it something else). Were you paying the drummer a salary? Treating him as an employee? In the absence of a written agreement, I don't think what he has done so far is a "work for hire," at least as I understand things. In any event, if he's a partner and you dissolve and reform the partnership, he would generally be entitled to his share of the partnership's assets.

But what you really need to do is hire a lawyer to go through your specific situation, ask the right questions and give you the right advice. Free advice off a newsgroup is probably not the way to go.

[Buffalo Bob]

Why not just have the guy whacked? 200 bucks ought to do it. Problem solved.

[gec]

Originally posted by Buffalo Bob
Why not just have the guy whacked? 200 bucks ought to do it. Problem solved.

[gec]

Think their was alot of good advice BUT for the wrong person. Honestly, I love everybody on here and am always willing to share knowledge but really Darwin's getting advice that maybe a major star should get. He hasn't sold 1 record and we're talking lawyers and legal action. Noone is suing anyone until their is profit ... period end of story. That profit needs to be significant enough to even warrant a lawsuit. Think about it....

Darwin's band sells 10k copies (extremely hard for an unknown first time band) not to mention it takes roughly $30k in marketing and expenses to do that.... But that aside you sell 10K copies @ $5 profit each unit

Thats $50K my man divided by 5 members. So your man would be suing you for his share of $10k which is shit. His lawyer would consume 5k within a month's time. This is of course not deducting the orginal investment of 30k in the project. Anyway


My advice again Darwin. Talk to your drummer try to work something out. If he don't wanna settle on good/fair terms go on with the project without him.
If you got good/solid/quality songs then don't rewrite another whole album. Time is more important than money so don't fuckin waste it. Work on album # 2 the follow up if anything.

Just my opinion man.

[sjjohnston]

Well, you may be right. I guess I was running with his stated desire:

we want to protect any financial success that the release has

It may be highly likely that the release will have no financial success. Of course, I don't know Darwin or his band. But releases that meet with "financial success" are pretty rare, I think.

[Buffalo Bob]

I took care of the drummer, as a favor to Darwin. There may come a time in the future (and that day may never come) when I will ask him to return the favor. For now, the drummer sleeps with the fishes.


Luca Brazzi

[slowjet]

If you do not already have the music copy written, with all the members as benificiaries of this copyright then you have nothing to worry about. As far as morals go if he's a wanker he is getting what he deserves, if he is a good friend offer him his part back for any expenses incurred during the recording process.

If you do not alreayd have a contract which states all the members of the band then you don't have anything to worry about. He/She who controls the copyright controls the finances.

[Buffalo Bob]

"If you do not already have the music copy written, with all the members as benificiaries of this copyright then you have nothing to worry about."

Technically, the music was "copyrighted" at the time it was put in a fixed form (CD). This is not good advice.

"As far as morals go if he's a wanker he is getting what he deserves"

This statement is beneath contempt. (but that's a moral judgement)

[sjjohnston]

Originally posted by slowjet
If you do not already have the music copy written, with all the members as benificiaries of this copyright then you have nothing to worry about.

Urg. That is just not right (so far as I know). Copyright arises, in favor of the creators, as soon as the work is fixed in a tangible medium of expression. A recording is a tangible medium of expression.

As far as morals go if he's a wanker he is getting what he deserves, if he is a good friend offer him his part back for any expenses incurred during the recording process.

No comment. Okay, one comment: sometimes it's hard to tell who the wankers are.

If you do not alreayd have a contract which states all the members of the band then you don't have anything to worry about. He/She who controls the copyright controls the finances.

You do have to worry about the copyright. You also need to worry about what the terms of your existing arrangement are, even if you don't have a written contract.

[zer0sig]

1. talk to him

2. if you're ditching him, you presumedly plan on replaing him with someone who can contribute at least as much (if not more) than he does-meaning that the new drummer should be able to help you rite new songs, or rewrite the old. if you have even a shred of material that he was involved in writing, and you try to publish without his being happy, you're opening the door to a world of drama. seeing as how you're in a band, i suspect you know more than enough about drama than to want more of it. if you want/need to can him (because partially of drama created, i would presume), make sure everyone is very clear on the legal situation agreed upon-get something in writing if possible. a good album is not worth flushing your band's potential don the toilet for a few bucks in the near future.

[PhilMckracken]

First thing is I am a lawyer and the work for hire issue is viable. YOu are correct that a work for hire generally needs a written agreement unless the song falls into the specific list of "specially ordered or commissioned works". That list includes, inter alia, a contribution to a collective work. It was in this context that I understood the drummers made his contribution to the group's music.

In my opinion this is also a logical and sensible position under the circumstances since the refusal of someone who has merely (and I don't mean merely in a musically qualitative way, just legally) contributed some part to cooperate could hamstring an entire production. I am sure there are other situations that many of you could relate but for the most part, I reiterate that I believe this is truly a viable option.

As for the comment on how oftne courts will hold that a contract is "unconscionable" I would say more often than you might think. It is not that rare though, to be frank, it is a difficult position to take. I was not, however, suggesting that that was the ultimate issue. The ultimate issue is more likely whether or not there was truly a work for hire situation. Based upon the comments here I did further research on the issue and discovered the above.

I am doing some additional research and will post my findings. I am sure this is an issue of interest to many here and I want to give as much information as possible and be as accurate as possible.

By the way, the comment about suing and not suing becuase of the lack of sales and lack of money is, ironically, both correct and incorrect. It is usually at this point, when people take a rather passive attitude towards the work because of the lack of commercial success to date, where the problems are generated.

If you have commercial aspirations, you probably are well advised to seek counsel and pay the money. Your biggest problem is getting reasonably reliabel advice for a reasonable price.

In any event, I will post more on the work for hire issue when I have completed my research. Until then I believe it is an accurate representation of the situation and something that should be considered.

[Buffalo Bob]

Hey Counselor -

What's the going rate for reviewing a publishing (single song) contract?

Bob

[PhilMckracken]

Here is a fairly standard clause from a recording contract that uses the work for hire "fiction" as it were...

Each and very vocalist, musician, Producer and other individual whose services you furnish in connection with the preparation of a Master REcording or Covered Video under this Agreement either will have done so as an employee within the scope of his or her employment or will have expressly agreed in written instrument signed by him or her and by the party commisioning the services that the Recording or Covered Video, as applicable, will be considered a work made for hire. A copy of any and all such instruments will be furnished to Label upon the request of Label.

In effect this clause deems the work of others on a production work for hire whether or not ther is a written agreement. Certianly, the point is clear that this is, for the most part, for the musicians etc. that come in to do the session and have little else to do with the production.

Nevertheless, what if one of the "studio musicians" suggested a different phrase in the song which you really liked and used, or maybe some words were changed by a vocalist, should this, just becaus it is a "contribution" to the "composition" automatically void the work for hire aspect? I for one do not think so.

[donkeystyle]

is there one person that wrote the song and then brought the song to band practice? or did you write the song wiht the other members? he can't claim that he wrote the song if you brought the song into practice and he jsut played along with it. all he did is write his part. like the lawer said.......you might get him to believe that he was a "drummer for hire,"

BUT

basically......he played on the album which means he's entitled to royalties........ you wouldn't have to give him much because the person that wrote the song usually get's the largest amount of the money.

also if u need to get rid of him, why would u want to keep his parts? this is just my opinion, but you should only get rid of your drummer if he sux........if he's in the band that means you probably like him........SO i've come to the conclusion that he sux......so i think u should re-record anything that you've already recorded..

i guess this is the end of my post