Original Songs in a Band, Quitting Band Members

[mrhudson]

So, I joined a band 6 months ago. Nothing profound gig-wise, small gigs in CT at locations for starting out original bands. We enjoy it (or so I thought we all did!) but probably/realistically don't see it being anything more than an enjoyable thing that we do. If something bigger happened, great, but it is for the music more than anything else. So, hobby band with some skill (at the very least), let's say....good enough assessment for the sake of the story.

 

Our singer/guitar player decided to leave the band, for a variety of reasons. Generally, he's a fairly glass-half-empty, moans a lot, was less than thrilled to gig kind of guy - would be more content to jam in a basement, I think. Didn't want to do the "non-musical work" of being in a band at all - "Myspace? What a waste of time". Clueless in that sense. Blocked gig-getting through excuses. In one sense, good to see him gone.

 

Now, he wrote maybe half of the songs that the band played when I joined, and, in pulling out, he demanded that we no longer play any song of "his". Of course, while he did write some of the songs, is there a point where, having played them as a band for two years, we can continue to play them, despite his demands? Is it any different than being a cover band - we just happen to "cover" a few of his songs? We're already disrupted by him bailing, and gutting our set list would be another blow, if he can really do that.

 

And, of course, the songs morph and grow over time based on the contributions of the entire band. The other guitar player might have wrote a guitar harmony section that is key to the song as well - so, say the song is 60:40 in terms of contribution, or 70:30, or 80:20, etc..

 

He is also suggesting that we cannot use any lyrics that he penned.

 

Now, if we were cutting albums and the like, were a bigtime band, and real money was a stake, sure, I get it. But, we're really small-time.......

 

What happens in "real bands" if a key songwriter from that band bolts - can that band still perform the song that the departed member wrote, particularly if that was a "central" song to their being?

 

Should we play the songs? If not, we almost need to shut down and write for a while, which is disruptive certainly......I had proposed that we agree to phase the songs out as new material is created, but to not stop playing them immediately such that we don't have enough to gig with......

[King Julien]

I'd probably not play them, unless you have a crowd specifically asking for them and even then I would be reluctant.

 

I'd probably get some covers together quickly and work on some new originals over time.

[Phred]

I am pretty sure it is primarily a moral issue, and not a legal issue at all.

 

I'm pretty sure Deep Purple has always played and still plays Smoke on the Water. Black Sabbath has always played Paranoid, etc...

 

 

[Joe Muscara]

I agree with the King and Phred. If he's going to be like that about "his" songs, then I'd have no desire to play them. If you actually did make an album and ended up putting some of his songs on it, he'd make money from that. With his attitude, he doesn't deserve it.

 

As far as originals, you might consider finding other people to write with if you need more help than is available in the band. Just a thought.

 

The quitter is right about one thing though, MySpace is a waste of time. But that's a different topic.

 

I'm not saying you shouldn't have a myspace page, it's another vehicle to promote the band, but its star is definitely faded and the site is crap overall.

[timwat]

As a guy who also writes, I think his demands are perfectly reasonable, as much as it sucks for you guys. From what you describe, he owns his songs, he owns his lyrics - he's the one who wrote those songs.

[Joe Muscara]

I think demanding they don't play his songs is uncool and shortsighted. The only way I would make that demand as a songwriter is if the band were terrible and would ruin my rep, or if there was bad blood. The OP mentioned none of the latter.

[timwat]

Well, Joe, I presume there's bad blood for a songwriter to make that demand. At least from his perspective. But here's another angle - I've also met guys who were control guys and just wanted to tightly hold what they've written. It's their sweat and blood on the page and they don't want someone else dicking around with their artistic vision. Which is his right as the composer. It's also everyone else's right to tell the guy to get lost and we'll find a better songwriter.

[BillWelcome Home Studios]

He has no legal right to prevent you from playing the songs. He can't get an injunction, cannot prove damages, and has no legal leg to stand upon.

 

Before anyone could stop the use of the material, that person would have to have negotiated a deal with the other copyright holders....and as someone who is still in the band wrote parts of the songs and has as much right to them as anyone, it seems that will not happen.

 

Besides that... what a pussy.

[timwat]

sure...whatever.

[frogmonkey]

He is perfectly within his rights to be a douchebag.

[d halfnote]

Legally, it is juat as any other case of performing another's compositions. He can't prevent that but, providing he's got ©, he can demand payment. Not by cooking up a $ number or showing up with his hand out but through a registered agency that handles the legalities for his publishing co.

FWIW, since © is inherent in creation, he (or whoever wrote) already "owns" the songs but can't legally collect any money before publishing...unless they have negotiated an agreement about work for hire (like someone who writes material for a specific job).

 

An example: George Harrison was notorious for performing rewritten versions of John Lennon's songs on his single tour of USA.

 

Conceivably a band could select one or more members or even an outside writer, contract them to write material & own the material the same way an ad agency, etc., does.

Of course, if your "pal" co-wrote any of thes tunes, he'd have to do all the ©, etc., with his co-composer(s), as well as share the renumerances.

 

If you wanna give him a hard time, you could take that approach.

However, if he starts work in another performing situation that depends on him using material to wgich he has full rights, he could also hire a lawyer who'd proabaly get an order preventing their use...but why bother ?

Like others, I wonder what's so great about these tunes. You say others in the band contributed to these; can't more be written?

 

All this is part of why bands, even small timers performing at local clubs, should get a good idea of what legal issues they might encounter regarding their rights & liabilities as a business, which is what they are, & between themselves.

FWIW, they should also look into whatever reputable sources for legal advice before hiring any other advisors such as managers, agents, etc.

That sounds formal & stiff but look what can happen otherwise.

 

[timwat]

I think Mr. Hudson isn't asking the legal question per se, he's asking what should his band do about the ex-member's request/demand.

 

Maybe I'm reading it wrong - but I thought it was more a "moral / ethical what-would-you-do" than a "what does the law provide" kind of inquiry.

[d halfnote]

I'm not sure what the "moral" angle is but moral issues ultimately become legal issues, don't they?

That's why I made the points about bands being businesses.

Whatever they do will have some outcome...hurt feelings, punch in the nose, whatever.

 

Beyond the possiblity that some band-members may've co-written the material, for me the question would be: are these songs that important? Can't they be replaced?

 

[BluesKeys]

send him 7 cents each time you play them. That is more than he would get in royalties from radio play.

[BillWelcome Home Studios]

I think Mr. Hudson isn't asking the legal question per se, he's asking what should his band do about the ex-member's request/demand.

 

If you and I wrote a song together, and you decided that you didn't want it ever played again, ever by anybody... that is all well and good, but I have as much to say about it as you. From a moral standpoint, my rights to perform the song are equivalent to your rights not to perform the song. But I can't stop you, and you can't stop me from either performing or not performing the song. Morally or legally.

[B3bluesman59]

If your ex-player does not own the songs by publishing and copyrights...then anyone can play the songs and for that matter someone else can do the legal work and own the songs.

[Griffinator]

We fired a singer in a band I had a few years back. He demanded that we stop using his contributions to the songs.

 

We happily agreed. His "contributions" consisted of one riff to one song (which we quickly changed), and two partial sets of lyrics (which we quickly changed).

 

We then filed a suit for damages when he tried to use the performances of the two respective songs to self-promote, one of which the other guitarist wrote the music almost in its entirety (I contributed some) and the second in which I wrote the chorus, most of the verses, and the outtro.

 

See, being a douchebag goes both ways. Net result, we got to keep moving with the material we wrote, and he, because he contributed little beyond the lyrics, got to keep moving with jack squat diddly.

[MusicWorkz]

Here is the real question-did he write the songs alone and present them to the band complete without any additional changes from the then-current band members?

 

If the answer is yes, then sure, they are his creative works and if he can't be smart enough to let you continue to showcase HIS writing abilities to the listening public, then that is HIS misstep-no real loss to the band-new songs can ALWAYS be written. And he will lose a key opportunity to get his work out in front of people-you never know who might be in the audience listening and feeling the vibe of any given song you are performing.

 

If the answer is no, that the band members in fact had some creative contribution to the song, even if it was writing the chorus, modifying the chordal structure or adjusting the melody-ANY type of substantive creative input to the song, then those band members have EVERY legal right to still perform those songs as they also are copyright holders in the creation of the original material.

 

 

 

[bloodyMary]

I am pretty sure it is primarily a moral issue, and not a legal issue at all.

 

I'm pretty sure Deep Purple has always played and still plays Smoke on the Water. Black Sabbath has always played Paranoid, etc...

 

Deep Purple signed their songs as 'Blackmore, Lord, Paice, Gillan, Glover', so they can perform them even though Lord and Blackmore left.

[mrhudson]

Thanks for all the thoughts and comments. On the songs themselves, sure, they can be replaced eventually. Some of them were among our better ones, but not all of them. So, no burning need to play them forever. There were clearly songs that he brought, basically premade, but then the band added new sections, harmonized guitar parts, etc., - extended compositional sections were added by others. Those contributions made the final song what it was - he actually went so far as to say "For Song X, you added the middle section, so you can play the middle section of the song, but not the rest". Hahaha!

 

So, to layer in an interesting twist - turns out that this fellow took it upon himself to file copyrights, without telling anyone else in the band that he intended to only put himself on the tunes copyrights! What a douchebag. All this is likely moot - we're a CT local original band, hobby players, barring some miracle, this really won't matter a great deal.....

 

(his take of myspace extended to all matters promotional - clueless)

 

Glad he's gone.

 

Anyone know a great singer/guitarist in CT who is looking? ;-)

 

 

[Chris Link]

send him 7 cents each time you play them. That is more than he would get in royalties from radio play.

 

Best suggestion yet! Cut him a check once a month ("Let's see two gigs and we played four of your tunes at each, so here's your 56 cents. Don't spend it all at once!"). It'd likely drive the jackass crazy.

 

Even though he copyrighted the material, he can't prohibit you from playing it just like any other cover song. And you don't directly owe him the money. If I understand correctly, he should get, in theory, a portion of the licensing fee paid by the club owner in order to have live or recorded music in their venue.

[Eric VB]

There were clearly songs that he brought, basically premade, but then the band added new sections, harmonized guitar parts, etc., - extended compositional sections were added by others. Those contributions made the final song what it was - he actually went so far as to say "For Song X, you added the middle section, so you can play the middle section of the song, but not the rest". Hahaha!

The US Copyright Office says a song is lyrics set to a melody.

 

In a market like Nashville that's all the songwriter has to provide. For the demo recording he or she usually sings along to a simple accompaniment with guitar (or piano), i.e. a chord progression. Technically, though, the chord progression isn't part of the song (under copyright).

 

What the recording artist releases can have a lot more bells and whistles than what the songwriter wrote. Lead guitar, bass, drums, fiddle, steel guitar, etc. Even changes to the chord progression. If session players compose/arrange their own parts they don't get copyright (but they do get paid for their session work).

 

Based on your description above I'd say you guys were more or less unpaid session players. (Typically this might garner you songwriting credit instead, but also typically the rhythm section never receives songwriting credit for composing rhythm parts.) Were you songwriting, or just arranging? If the band recorded a version of the song then those who actually appear on the recording should be credited for the actual recording, but that's not the same thing as songwriting.

 

Also, consider a derivative work. If I write a song -- lyrics set to melody -- I can copyright it as the songwriter. If I take it to a band and they rock it up, even change it around, they are creating a derivative work. (Or, the band can come to me and ask for my permission to make a derivative.) The band gets songwriting credit for the new version of the song along with the original songwriter. But the original song's songwriting copyright belongs solely to me.

 

I agree with what others have already said. Drop his songs immediately and replace them with covers your audiences would enjoy. This allows you to continue gigging without freely promoting your ex-bandmate's material. You'd actually be helping his career -- not just by promoting his songs -- but also because with his copyright and the fact that you've performed his songs in public he can join a PRO (like ASCAP) and start getting checks every time you perform his songs.

 

Hopefully you don't have a thousand CDs laying around with recordings of his songs.

 

You and your remaining bandmates may also want to consult an entertainment lawyer who can give you the facts and draft a legal document between yourselves and your ex-bandmate.

[JeffLearman]

Interestingly, you can record and distribute your versions of his compositions without his permission, by paying him for a "mechanical license" -- see http://songfile.com for how to do this for published works.

 

This only applies to recordings, though; I don't know if there is a similar option for performance.

[JeffLearman]

Technically, though, the chord progression isn't part of the song (under copyright).

This is not quite correct. Melody is the most important, but harmony and rhythm also can be protected. However, copyright protection does NOT cover independently arriving at the same thing, and it's much harder to protect harmony and rhythm -- it's harder to prove that they were copied.

 

Eric is correct in that if a song is reharmonized to use different chords, the melody is still covered. But he's not correct that there is absolutely no protection for harmony and rhythm. Not in theory, but in practice, it's difficult unless you're pretty original. But say someone takes the chords and rhythm from the Kinks' hit Lola -- all the chords -- but uses a different harmony and rhythm. It's unusual enough, and popular enough, that it would be very difficult for an author to claim it as an original work, uninspired by the Kinks' song.

 

As an interesting example, not too long ago some band "covered" John Cage's work 4'33", which is 4 minutes and 33 seconds of (mostly) silence. They used a different length, and thus a different name, and in liner notes, claimed it was inspired by Cage. Cage sued, and won. The judge said that if the band hadn't credited Cage in their liner notes, it would have been impossible to tell that they'd copied him.

 

Clearly, melody and lyrics are not all that are covered. But practically, that's what matters most.

[kanker.]

As an interesting example, not too long ago some band "covered" John Cage's work 4'33", which is 4 minutes and 33 seconds of (mostly) silence. They used a different length, and thus a different name, and in liner notes, claimed it was inspired by Cage. Cage sued, and won. The judge said that if the band hadn't credited Cage in their liner notes, it would have been impossible to tell that they'd copied him.

That's among the strangest things I've heard.

[Mike Warren]

As an interesting example, not too long ago some band "covered" John Cage's work 4'33", which is 4 minutes and 33 seconds of (mostly) silence. They used a different length, and thus a different name, and in liner notes, claimed it was inspired by Cage. Cage sued, and won. The judge said that if the band hadn't credited Cage in their liner notes, it would have been impossible to tell that they'd copied him.

That's among the strangest things I've heard.

 

Strange enough that I had to google it.

 

http://news.bbc.co.uk/2/hi/entertainment/2276621.stm

 

 

[Joe Muscara]

Thanks for the link, Mike. According to the article, technically, Cage's Trust didn't win, it was settled out of court. The article also does not reference the judge's statement that learjeff did. Unless you're referring to a different case?