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Band Ownership Issues

What constitutes ownership?

• Ownership of PA equipment
• Ownership of Songs, including writing credits
• Ownership of merchandising inventory
• Ownership of recordings
• Ownership of images, websites, logos, band name
• Responsibility for band morale/motivation/harmony
• Responsibility for marketing, booking gigs, negotiating prices
• Responsibility for scheduling
• Responsibility for recruiting new members, finding replacements
• Responsibility for distribution of band revenue
• Responsibility for band equipment maintenance
• Responsibility for managing rehearsals
• Responsibility for rehearsal space
• Responsibility for charts, arrangements, sheet music
• Responsibility for band management
• Responsibility for bookkeeping, insurance
• Responsibility for PA, recording
• Responsibility for/veto power over song selection
• Responsibility for merchandising, distribution of merch. funds

What have I forgotten?
 
Whenever I start up a band, even though I may be the bandleader, I will always make the founding members partners. Why? Because those people are giving me their time and taking a risk along with me as to whether that project takes off. Even though I may own the PA, have connections for bookings, etc, those guys are still putting in their time, energy and talents to get it off the ground. If I can't pay them in the beginning, I at least need to give them something. And in the beginning, all I can give them is equity in the band, and hopes that it will turn into something good.

In 2009, the British high court handed down a decision involving the keyboard player for Procol Harum. The guy was suing the copyright holders of Whiter Shade of Pale, claiming that because his organ composition is so distinctive in that song, he should be a co-author, even though the lyrics and melody were written before he joined the band. The court agreed, and awarded him royalties going forward. I was thinking about putting together an original band at the time, and that case got me thinking about structure…

Fast forward: our band has a signed band partnership agreement in place, as well as a separate songwriting agreement that names each of us as co-authors. Each member is also equally responsible for expenses (if one member picks up a larger share of costs, that member gets to recoup off the top from the proceeds). Our guitarist writes the lion’s share of the music, I write the lyrics and melody, and our bass player has begun to contribute music, as well. At the end of the day, it takes all four of us to properly develop and arrange each song, regardless of whose idea it was originally. I'm the band leader and therefore have the tie-breaking vote when required (a rare situation, thankfully, and I also get my fair share of being out-voted :spit: :D), but we actually operate quite well as a democracy. The formal structure fosters a tremendous sense of pride in ownership and drive to succeed in each of us. It is the only way I could have ever expected these guys to commit their time and expertise with no immediate promise of financial return. If folks are gonna gamble with ya, ya gotta give 'em some incentive!

We’ve all become pretty close since we started working together. The agreements we signed will help ensure it stays that way.

By the way, great thread, Jive!
 
Out of curiousity, do the hired guns pitch in for band related expenses or do work like promotion, etc.?

I have limited experience w/ HG's but have seen it first hand in a couple of bands. Mainly, I think it depends on how "removed" the HG is from the band.

For instance, here's a scenario I've seen that seemed to work: the HG is told what to play and just shows up to make noise for a salary. They get fed on the road. They buy their own equipment. In these cases, for the most part, salary is all he gets.

On bigger tours: when an industry mag or radio stations show up for interviews, HG's stay back stage or lurk anonymously while core members come to FOH to do the talking for the band. And the bigger the band, the less exposure/pictures HG's get on the web.

Regional bands: I'd say that HG's can help with promotion, but I'd always continue to reiterate roles and compensation as needed, if lines get blurred. COMMUNICATION IS KEY! ... you can always re-negotiate.
 
Great thread and definitely a way to prevent the many issues out there.. My take on it is that you need to set expectations at the beginning of a musical relationship and then live up to those expectations. Partner or Employee..

It can also get a bit more complicated when you have levels of management.. case in point.. I'm a bassist and bandleader with a GB group that I have no ownership in and is booked exclusively by an agency, however I run the band. I do listen to suggestions from others in the band and work under some agreed-upon guidelines with the owner but in the end, it's my call to make on decisions from repertoire to who is singing the first dance, when we rehearse, how long will we play a given song, what song do we segue to, who takes the solo, who do we get as a ringer for the next gig, etc.. It's a lot of decision-making but in this case, we couldn't have a democratic setup and have it work nearly as seamlessly.. The bottom line though is that we have set expectations and people know where they stand..

Counterpoint that with the band in my sig. which I co-founded. It is the absolute closest I've ever been to a democratic situation between the singer/guitarist, myself and sax/keyboardist and drummer. We're all really good long-term friends and though there may be slight disagreements from time to time, we keep an eye on the overall prize pretty well.. All the decisions are pretty well shared and we actually take turns leading the band as needed.. from booking to calling songs, to running rehearsals and writing arrangements, etc.. Even though the situation is much more fluid than the GB gig, the bottom line is that we have set expectations and people know where they stand..
 
My band is starting to get to that point where we need to figure out ownership of our songs. Our synth/singer often comes up with the initial spark to get the engine going, but everyone else writes their part, has a hand in arrangement and lyrics, and by the end of the writing process a song is always much different than what we originally started with.

I'm wondering what's the best way I should approach bringing this aspect of our band's relationship up. I personally want to split royalties 5-ways no matter what. One of my guitarists, on the other hand, wants royalties to go to whoever inspired the song; meaning if someone noodles a lick and we start jamming on it and a song eventually comes out of it they get credit for the song.

Personally, I don't see how anyone could get full credit for a song considering how collective our writing process is unless someone came in with at least 3/5ths of the instrumentation, the melody, and the lyrics already written - but that's besides the point. Anyways, how should I best start this conversation and keep it civil, because I'm sure it might get heated?
 
I personally want to split royalties 5-ways no matter what. One of my guitarists, on the other hand, wants royalties to go to whoever inspired the song; meaning if someone noodles a lick and we start jamming on it and a song eventually comes out of it they get credit for the song.
I'm with you on this, and here's why: If all 5 members show up with licks upon which the band can build a song, no one will want to work on any song other than their own.

Here's the scenario: if our band is songwriting on Saturday, and my song isn't gonna be worked on that day, I might take the day off!

Now for the other scenario, if you're splitting it 5 ways, and one guy is hanging out with his buddies in the parking while the rest of the band is working, then he gets zero.

In our band, our drummer doesn't write too much, but he's actively engaged in the creative process. ie. when the band wants to start again from whatever part in the song, he's ALWAYS there to count us in. He gets credit for the process (in my view).
 
In my band every one is an equal partner. That being the case, everyone gets an equal cut of the proceeds.

If I was a hired gun, I would either make an amount that was acceptable to me (Regardless of what a gig actually paid) or I would get paid an amount that was acceptable to the powers in charge (Probably less than an equal cut).
 
That's pretty much how I see it. Call it protecting my own tush, but I do notice that how often a band will start jamming on a random guitar lick vs a random bass lick or drum beat is way skewed. I'd almost certainly never get credit despite me playing the dominant roll in arrangement after the initial riff is created, and I'd definitely lose interest in wanting to help write if credit is never going to be given to me. Plus, I feel if everyone is getting credit everyone will feel more invested in making each song sound as good as possible if their name is going to be attached to it.
 
If you own the band, that makes you an employer. No thanks. I make it clear with all members that we are all independent contractors. I can deal with the whining over expenses, but I have no desire to handle all the tax withholding and employee benefit issues. You should think twice about "owning" the band. It's also a lot easier to fire a contractor than an employee.

In my last band, I owned the PA and I own the name, but we were all still independent contractors.
 
I like that "independent contractors" spin. Do you get them to sign contracts to that effect?

Independent Contractor (IC) is an employment status. Either your an IC or an employee. Calling everyone in a band an IC is not legally possible, especially, if you "own" the band as a method to get out of paying taxes/benefits. The IRS has specific guidelines on who is and isn't an independent contractor. An employer can classify you an independent contractor and hire you but legally you still may be an employee.

You're more likely a general partnership with unequal rights. Theses can be listed in a partnership agreement. If there's no written partnership agreement, then your group is a general partnership.

Here's an article to checkout on current government actions on IC's:
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• Level of instruction.
If the company directs when, where, and how work is done, this control indicates a possible employment relationship.

• Amount of training.
Requesting workers to undergo company-provided training suggests an employment relationship since the company is directing the methods by which work is accomplished.

• Degree of business integration.
Workers whose services are integrated into business operations or significantly affect buiness success are likely to be considered employees.

• Extent of personal services.
Companies that insist on a particular person performing the work assert a degree of control that suggests an employment relationship. In contrast, independent contractors typically are free to assign work to anyone.

• Control of assistants.
If a company hires, supervises, and pays a worker's assistants, this control indicates a possible employment relationship. If the worker retains control over hiring, supervising, and paying helpers, this arrangement suggests an independent contractor relationship.

• Continuity of relationship.
A continuous relationship between a company and a worker indicates a possible employment relationship. However, an independent contractor arrangement can involve an ongoing relationship for multiple, sequential projects.

• Flexibility of schedule.
People whose hours or days of work are dictated by a company are apt to qualify as its employees.

• Demands for full-time work.
Full-time work gives a company control over most of a person's time, which supports a finding of an employment relationship.

• Need for on-site services.
Requiring someone to work on company premises—particularly if the work can be performed elsewhere—indicates a possible employment relationship.

• Sequence of work.
If a company requires work to be performed in specific order or sequence, this control suggests an employment relationship.

• Requirements for reports.
If a worker regularly must provide written or oral reports on the status of a project, this arrangement indicates a possible employment relationship.

• Method of payment.
Hourly, weekly, or monthly pay schedules are characteristic of employment relationships, unless the payments simply are a convenient way of distributing a lump-sum fee. Payment on commission or project completion is more characteristic of independent contractor relationships.

• Payment of business or travel expenses.
Independent contractors typically bear the cost of travel or business expenses, and most contractors set their fees high enough to cover these costs. Direct reimbursement of travel and other business costs by a company suggests an employment relationship.

• Provision of tools and materials.
Workers who perform most of their work using company-provided equipment, tools, and materials are more likely to be considered employees. Work largely done using independently obtained supplies or tools supports an independent contractor finding.

• Investment in facilities.
Independent contractors typically invest in and maintain their own work facilities. In contrast, most employees rely on their employer to provide work facilities.

• Realization of profit or loss. Workers who receive predetermined earnings and have little chance to realize significant profit or loss through their work generally are employees.

• Work for multiple companies. People who simultaneously provide services for several unrelated companies are likely to qualify as independent contractors.

• Availability to public.
If a worker regularly makes services available to the general public, this supports an independent contractor determination.

• Control over discharge.
A company's unilateral right to discharge a worker suggests an employment relationship. In contrast, a company's ability to terminate independent contractor relationships generally depends on contract terms.

• Right of termination.
Most employees unilaterally can terminate their work for a company without liability. Independent contractors cannot terminate services without liability, except as allowed under their contracts.

http://en.wikipedia.org/wiki/General_partnership
Partnerships have certain default characteristics relating to both (a) the relationship between the individual partners and (b) the relationship between the partnership and the outside world. The former can generally be overridden by agreement between the partners, whereas the latter generally cannot be done.

The assets of the business are owned on behalf of the other partners, and they are each personally liable, jointly and severally, for business debts, taxes or tortious liability. For example, if a partnership defaults on a payment to a creditor, the partners' personal assets are subject to attachment and liquidation to pay the creditor.

By default, profits are shared equally amongst the partners. However, a partnership agreement will almost invariably expressly provide for the manner in which profits and losses are to be shared.

Each general partner is deemed the agent of the partnership. Therefore, if that partner is apparently carrying on partnership business, all general partners can be held liable for his dealings with third persons.

By default a partnership will terminate upon the death, disability, or even withdrawal of any one partner. However, most partnership agreements provide for these types of events, with the share of the departed partner usually being purchased by the remaining partners in the partnership.

By default, each general partner has an equal right to participate in the management and control of the business. Disagreements in the ordinary course of partnership business are decided by a majority of the partners, and disagreements of extraordinary matters and amendments to the partnership agreement require the consent of all partners. However, in a partnership of any size the partnership agreement will provide for certain electees to manage the partnership along the lines of a company board.

Unless otherwise provided in the partnership agreement, no one can become a member of the partnership without the consent of all partners, though a partner may assign his share of the profits and losses and right to receive distributions ("transferable interest"). A partner's judgment creditor may obtain an order charging the partner's "transferable interest" to satisfy a judgment.

Note: See your legal and tax advisers for proper application of the law in your case.
 
Long ago we had managers and agents doing booking for us and all owned individually was our backline and guitars. More recently I usually took care of the business end of things such as booking and disbursement of our pay and our keyboard player took care of co-ordinating the musical end of things. PA gear was partially his and partially mine and we took a little extra to cover basic costs of promotion and repairs to the PA.

Beyond that the band was both musical and monetary partnership where everyone had input on material and go/no go rights on certain songs. The money was always split equally after those deduction I mentioned and no one was considered a "hired gun" although over the years we did have some players who didn't last very long.

I realize this won't work for every band but we truly became close friends so no one was out to screw anyone over. Best way to get along is to have respect for one another.
 
Independent Contractor (IC) is an employment status. Either your an IC or an employee. Calling everyone in a band an IC is not legally possible, especially, if you "own" the band as a method to get out of paying taxes/benefits. The IRS has specific guidelines on who is and isn't an independent contractor. An employer can classify you an independent contractor and hire you but legally you still may be an employee.

Except in my case, no one "owns" the band, and the decision whether to pay income tax is up to the individual. The wise ones pay it. There is no employer. It's a group of people who agree to show up at certain places at certain times. They are free to come or not come.
 
SOTM. (Someone other than me.)

So that person should possibly be getting a 1099 from each venue and issuing 1099's to each member of the group for the year's individual income. Otherwise a partnership return (K1) probably needs to be filed indicating the distribution of the net profit for the group.

All, IME, based on my experiences with various partnerships other than bands. Check with your tax adviser, not me. :ninja:
 
Munjibunga said:
Except in my case, no one "owns" the band, and the decision whether to pay income tax is up to the individual. The wise ones pay it. There is no employer. It's a group of people who agree to show up at certain places at certain times. They are free to come or not come.

Well, someone does own the band, or at least has responsibility for tax reporting. In any event, ownership of the band is not by itself determinative of whether musicians are employees or independent contractors. Our musicians are independent contractors. Our situation is no different from whoever gets the check for your band, except that we have created an S corporation whereas the person who gets the checks for your gigs and pays the other band members is probably a sole proprietor for tax purposes. We operated that way for a number of years, but ultimately determined that there were a number of advantages to using a corporation instead of a sole proprietor.
 
Well, someone does own the band, or at least has responsibility for tax reporting.

Hmm, I wonder... Is a band always a legal entity? I realize some are (such as yours) and that the IRS will always be interested in someone reporting the revenue. But is a band always a discreet legal entity?

With music I've always operated as an independent. I think that if one person is issued a 1099, and there is no formally organized entity, the IRS would view the burden as resting solely with the 1099 recipient, and if that person didn't 1099 the other members they would skate. But that's just my guess. Is there a definite rule on an organization like a band?

I mean, if three guys come to my house and do landscaping, and I pay one of them $150 cash and they spilt it, are they a "business" and seen as a discreet entity?

... we have created an S corporation ...

I'm curious why you went with an S corp instead of an LLC...?
 
Hmm, I wonder... Is a band always a legal entity? I realize some are (such as yours) and that the IRS will always be interested in someone reporting the revenue. But is a band always a discreet legal entity?

With music I've always operated as an independent. I think that if one person is issued a 1099, and there is no formally organized entity, the IRS would view the burden as resting solely with the 1099 recipient, and if that person didn't 1099 the other members they would skate. But that's just my guess. Is there a definite rule on an organization like a band?

In the situation you describe where one person receives payment and then distributes it to the others, that person has an obligation to report the income to the IRS, but can deduct the payments made to other musicians. The other musicians in turn have an obligation to report their respective income on their individual returns. All income needs to be reported to the IRS, regardless of whether the person receiving the payment receives a 1099. Although the band member who is receiving the payment in the first instance and distributing payments to the other memebrs is required to provide them with 1099s if the payments made in any year exceed the threshold, which I believe is still $600.

Generally speaking, in the eyes of the law, a partnership is any association of two or more persons who carry on a business for profit, so in the absence of any other form of organization, a band may be a de facto partnership. This probably matters less for tax purposes than for liability purposes, since the profits of partnerships are passed through to the individual partners anyway.

I'm curious why you went with an S corp instead of an LLC...?

I honestly don't remember. It was a number of years ago, and it is possible it was before an LLC was available in Pennsylvania.
 
Like I said, I think it can work if one or more members own the band, and the rest are hired guns.

Out of curiousity, do the hired guns pitch in for band related expenses or do work like promotion, etc.?

No one pays anything out of pocket. The band retains enough from revenues from gigs, CD sales, etc. to cover expenses and have adequate cash on hand to meet the needs of the band, and pays out the rest to members.

Once a year, we reserve a few minutes of rehearsal time for a "state of the band" meeting where we review and discuss the prior year, and that meeting includes a brief presentation of the band's financial statements. That presentation tends to be quite general: "the full band made $X in total from weddings and corporate events, $Y from concerts, restaurant/bar gigs and other public performances, and $Z from sales of CDs and merchandise. We paid out $A to band members as performance fees, $B for rehearsal space rent and insurance, and $C for other operating expenses." Any of the members of the band can ask if they want more detail, but that is usually enough to give everyone in the band assurance that the band's finances are being handled competently and fairly.