Recently I attended the Q-Tip and Cool Kids concert at House of Blues. During a bumping version of Bointa Appelbaum, my friend Aaron, taking a brief break from bobbing his head off-beat, asked me how can Q-Tip play this song without the rest of Tribe? Relishing the opportunity to spread my music and law knowledge I began explaining to him how copyrights work and wondering aloud whether a Tribe Called Quest had a band member agreement. Aaron, much like most people I talk to about the law, immediately glazed over and went back to doing his version of the electric slide.
I figure, however, if you are reading this blog, you may want to know how Q-Tip was able to publicly perform some of Tribe’s greatest hits or how Roger Waters could sing Dark Side of the Moon or how Phil Lesh and friends can delight fields of the unshowered with Sugar Magnolia. These artists have the ability to dig deep into their former band’s repertoire for several reasons.
Most of us have been to a concert where the headliner covered another song. Bands can play other bands material at a concert so long as they register the performance (oftentimes after the fact) with ASCAP, BMI or SEASAC. But the Q-tip situation is a bit different. Q-Tip was treating the crowd to set full of classic songs made famous by his former group. If Phife Dawg was on tour, could he ask if he “Can Kick It” (click on the link to see who holds the copyright)?
The answer, unfortunately, is that it depends on how organized the band was. If they had a band member agreement (see https://lawyer4musicians.com/2008/08/ for more about band member agreements) it undoubtedly contained provisions for an eventual band break up. Issues that may seem unnecessary today may have a huge impact later. A leaving member or termination provision will have an invaluable effect on how your band’s brand is treated after the life the of the band is over. If properly written, the termination provision will ensure that the band’s name and its value are not diluted. It will set out who can use the songs, who can tour under the band’s name and who can re-issue recordings.
Think of it this way: Smashing Pumpkins break up (for like the 5th time) but James Iha and Billy Corgan want to tour with new members using the Smashing Pumpkins band name and the Pumpkins’ catalog of music. If there is no agreement between the members of the Pumpkins, and both try to tour under that name, they will both most likely fail or at least end up in court fighting for the right to use the name and songs.
For independent artists that are not quite at the band member agreement phase there are steps to take to ensure that this type of confusion and conflict do not occur. First, just talk to your band mates about it; get a sense for where everyone is on the issue of song ownership. Second, register your copyrights in your recordings. The copyright registration will allow you to designate the author of each song you register. That way, if there is a debate down the road you can at least point to the copyright to show who owns what and who has to get permission from whom before a song is performed or recorded. Third, trademark your band name. The trademark registration will allow you to claim ownership of your band name and logo. Finally, suck it up and put everything in writing. Keep in mind your first agreement can be amended and modified as many times as you want.
SHAMELESS SELF PROMOTION OF THE WEEK: WHATZISFACE