Being a metal fan means having an opinion about whether Slayer is Slayer without Jeff and Dave, or which lineup of Death reigns supreme. You’re used to haggling over the creative impact of band member turnover. What you might not know is that even the most amicable lineup change can involve a host of legal and financial implications. Unfortunately, most bands don’t figure that out until current and ex-members have hired lawyers and written antagonistic Facebook posts about each other.
Decibel Issue 112’s Killing Is My Business column focuses on what happens behind the scenes when a band is “going through changes,” to quote a singer who’s no stranger to lineup woes. Here are two unabridged interviews I conducted for the column.
First up: Eric German, a metal-loving attorney for Mitchell Silberberg & Knupp LLP. He’s handled multiple metal record deals over the years, including the deal with Century Media for the Geoff Tate-less Queensrÿche.
What kinds of legal agreements might a band have to consider when it experiences member turnover? What areas could conceivably be affected?
All aspects of the band might be affected – publishing, touring, merchandising, recording, etc. Consider your band a small business, and the band members are the shareholders. Or consider that the band is a house that all of the members chipped in and bought together. Jonny may have fixed up the attic, Sally might have painted the kitchen, and Timmy might have brought home the family dog, but now it is divorce time and whole thing has to be broken apart and parsed out to the various members. So unless there was a pre-nup, there are going to be issues about who owns what and how that should be valued.
When a band is dealing with member turnover, why might a lawyer get brought in?
Member changes in a band raise issues of trademark law (who can use the name), corporate/partnership law (who owns the band assets and how are they valued), copyright law (who owns the copyrights and do they need to be assigned), and music law (which deals are affected and what needs to be done in terms of notifying the record company, publisher, etc.). These issues can be complex and if there is any real money at stake or if the name and songs are important to both the departing member and the remaining members, there are bound to be issues. Even if everyone is on the same page, making sure the split is handled in a legal and formal way will avoid unwanted misunderstanding down the road and can prevent embittered former band members from making a fuss should you strike it big after they left.
I'd imagine that a lawyer will often be brought in by the label or publisher to deal with contract issues that result from band member turnover. Are there any issues that might specifically affect unsigned, unpublished bands going through member upheaval?
Don’t expect the label or publisher to shoulder the burden of your inter-band drama. That’s on you. You need to get your house in order and come correct to do business with the third-party entities that are invested in your band. And yes, even unsigned bands need to sort out who owns the name. I cannot tell you how many times I’ve seen a band get big and a former member pops out of the woodwork once the band gets big, demanding co-ownership, etc.
Is there a band equivalent of a pre-nuptial agreement, where the members agree to such and such happening if one of them leaves?
Yes. It is called (wait for it) a band agreement. It sets forth the way someone can get voted out, how new members come in, what the income splits are, etc. For most professional bands, I generally advise they operate through one or more corporate entities, and the operating agreement for the corporation or LLC as the case may be also serves as the de facto band agreement.
We've all heard stories of a band continuing on without a founding member, and a legal spat erupting over use of the band’s name. How do those trademark agreements work, and why might one party or another ultimately get control over the name of a band?
Trademarks are “brand identifiers” – trademark rights arise when the relevant consumer base (in this case, the band’s fans) identifies the trademark (in this case, the band name) with a particular source. So when a band breaks into two competing versions warring over the name, absent a band agreement, courts will generally award the rights to the version that fans most closely identify with the name.
Have you ever seen bands try to work things out just because it'd be a huge pain in the ass not to?
Of course! Litigation sucks for the most part. It is costly, time consuming, evasive and just a whole lot of negative energy all around. Litigation over a band name should generally be a last resort – it is too rough out there in today’s music scene to throw a lawsuit on top of it if you do not have to.
Do labels tend to get concerned when there's a lot of member turnover in one of their bands? Or is it all the same to them as long as the music gets made?
Well remember that the label wants to be able to sell the band’s albums under the name that the prior marketing and sweat equity investment has gone into building. Some labels write provisions into their recording contracts regarding what happens in the event of a departing or leaving member, just because they don’t want to have to deal with the problems.
What are some steps that a young band can take in the good times to keep things form getting really legally complicated in the bad times?
While every situation is unique, here are some general guidelines to follow: Do a band agreement. Create a company and have the company own the name. File a trademark in the name of the company. Make sure the band agreement sets forth clear procedures regarding how someone is voted out or how they can leave, and that the name stays with the remaining members of the company.
As a metal fan, can you remember a time when member turnover has resulted in worse music? What about a situation where the music has gotten way better after a difficult changing-of-the-guard?
Member turnover resulting in worse music: Van Halen (David Lee Roth v. Sammy Hagar? Not even close)? Guns N’ Roses without Slash? Judas Priest without Halford? Iron Maiden without Bruce or Adrian Smith? Fear Factory without Dino? Slayer without Hanneman and Lombardo the jury is still out, although they did just destroy the Hollywood Palladium with a killer old-school set. Better: I like the new Carcass a lot despite the loss of Amott. And the Geoff Tate-less Queensrÿche is MUCH better. I’d call Black Sabbath shifting from Ozzy to Dio a PUSH.
Next: Jon Leon, leader and sole original member of White Wizzard. This LA-based trad metal band has cycled through 16 members since 2007.
On a creative level, what's been the impact of the lineup changes that White Wizzard has endured?
I think creatively I have just progressed and grown. Sometimes if a guy says something bad about you or you feel like people are hating you, it is important to channel it into a positive fire for yourself and get inspired. I write everything, so that is why it can stay consistent. I am determined and it gave me a thicker skin. I am excited for the future…I feel the adversity has just made me stronger and more driven.
What was the legal fallout after the first big lineup change, when three members left and later formed Holy Grail?
No real legal fallout. They decided to go a different direction and we had some serious disagreements. That story is a long one but I think overblown as well...had we had an agreement written up and a solid manager I think we would have stayed together and became a really big band. But it is hard when you are hungry, have different ideas and big egos and everyone is really talented. Many bands implode for reasons that first lineup did. I wish those guys the best.
Do you find that member turnover has put a financial strain on White Wizzard over the years?
Not as much as being on a record label and not making any money off of album sales did. I would also say Wyatt Anderson choosing to bail on some tours last minute and Download Festival hurt a bit. I think promoters lost some faith in the band when we went out with replacement singers. People really wanted to see the singer on the record.
A lot of factors come into play when there's band changeover. What's the most surprising thing you had to deal with resulting from a departing/incoming band member?
This has always been my baby from its formation. I was signed exclusively as a songwriter and owner of White Wizzard to the label. Once the first lineup split, I took exclusive control. That has been a problem at times for some guys I think, that I am in charge. It is hard to make a band democracy without it becoming a dictatorship. I always wanted a democratic band of brothers but it just did not work with personality dynamics and other people’s personal issues, along with me being the songwriter – it created friction, jealousy, mistrust, etc. There have been too many strange things to pick one. That is a whole interview in itself… a Spinal Tap documentary, really.
You're on your own label right now. How is the band agreement with the current incarnation of White Wizzard different from the agreements you had when you were signed to other labels?
I will be giving each musician a percentage of sales profits monthly with statements. Very cut and dry. The big difference is guys working with me will make money, and I will make money. That should be a nice change for all of us. No money always causes tension, and people lose hope and get frustrated.
A lot of young, idealistic metal bands would purposefully not think too much about the legal and financial aspects of being in a band, thinking that trust and respect are all that you need to get you through tough times. Why is it important for a band to consider these things early on?
Write up solid contracts together. Spend a couple hundred each and hire an attorney to help get it right, and try and find a manager. If you are serious that will help you should things go south between even a couple guys…and trust me, it almost always will.