It seems like every other week there is a new headline about musicians (or their estates) suing one another over some disagreement or grievance, more often than not, concerning unpaid royalties.
In December 2021, a lawyer representing the families of the late bassist, Noel Redding, and drummer, Mitch Mitchell, for 70s iconic rock group, the Jimi Hendrix Experience (JHE), sent a letter to Sony Music and Jimi Hendrix's estate alleging that they were entitled to unpaid royalties and damages for use of JHE's music without their permission. The Hendrix estate fired back, filing a lawsuit in the US District Court for the Southern District of New York seeking a declaration from the court that Redding and Mitchell were entitled to nothing as they had previously agreed to release the Hendrix estate from all legal claims following an earlier dispute in the 70s following Hendrix's death.
The lawsuit highlights some of the legal pitfalls for musicians in bands and serves as something of a cautionary tale. In this article, we set out what we consider to be five key lessons from the lawsuit so you (or the heirs to your musical fortune) don't have to learn these lessons the hard way.
Lesson 1: Know your rights
As a musician, it is important to understand that you may have different rights depending on the kind of contribution you make to a song or recording. Too often, as shown in the Jimi Hendrix lawsuit, musicians don't appreciate the value of their contribution, or the rights that they have, until it is too late. Making sure you have a good understanding of your rights before you discuss contracts, royalties and revenue splits is vital to ensuring your interests are protected. This can be as simple as asking the following questions:
- Did I compose or contribute to the composition of the song? If so, you may own or jointly own copyright in the musical work and be entitled to royalties for reproductions (physical and digital copies), public communication (broadcasts) and public performances of the work.
- Did I write or contribute to writing the lyrics for a song? If so, you may own or jointly own copyright in the musical work (as above) and in the separate literary work.
- Did I play an instrument, sing or otherwise perform on a studio recording? If so, and you were not employed or commissioned to perform as a session musician, you may jointly own copyright in the sound recording, entitling you to royalties for reproductions or public communications of the sound recording.
- Did I record the song using my recording equipment? If so, you may jointly own the copyright in the sound recording together with the performers (above), entitling you to the same royalty streams.
- Did I create or contribute to the artwork for the album or single? If so, you may have rights in the copyright in the artistic work (e.g. photograph, drawing, design, logo).
Of course, in the event that you sign an agreement that provides otherwise, then you risk losing any rights in your contribution. In this respect, the Hendrix lawsuit highlights the importance of understanding what rights you potentially have to lose.
Lesson 2: Prepare to disagree
Disagreement is natural. Indeed, a little creative tension between band members is often vital when it comes to making music. With this in mind, the best way to handle disagreements between members is for the band to agree on a way of resolving disputes before they arise. The best way to do this is in the form of a written band agreement. These agreements typically should address the following:
- contributions of members (e.g. cash, equipment, expenses)
- duties and obligations of members (e.g. minimum time commitments)
- how the band will work together (practices, performing, recording, touring etc)
- ownership of copyright and related rights, including entitlements to royalties
- ownership of other band assets (band name, trade marks, domain names, social media accounts)
- revenue split for other income sources (merchandise, touring, sponsorship)
- a clear process for making decisions and resolving disputes as a band.
There are many different forms these agreements can take (e.g. a letter agreement, a partnership deed, or, where a company structure is adopted for a band, a shareholder agreement), each with certain advantages and disadvantages, discussion of which falls outside the scope of this article. It suffices to say that having in place a legal document that provides a framework for resolving disagreement can stop disagreement from escalating into a full blown dispute.
While publicly available court documents reveal that the Jimi Hendrix Experience did have in place a partnership agreement providing for a 50:25:25 split of all revenues (with Jimi receiving 50%), there appears to be some disagreement as to what happened to the partnership on Jimi's death. This highlights the need to ensure that the terms of any agreement are clear and provide for a range of eventualities, including where a member leaves (or joins) the band.
Lesson 3: Read the fine print
Being a rock star isn't all glitz and glam. Sometimes you've got to read the fine print. As Robert Johnson will attest, the devil is often in the details. Accordingly, it is important that you take the time to read and understand any agreement before you sign it. If you are unsure of a particular term or a clause, or its effect in practice, then you should seek independent legal advice (see lesson 5 below). Don't be pressured into signing anything that you haven't had a chance to properly consider in detail.
In the Jimi Hendrix lawsuit, lawyers acting on behalf of the estates of Noel Redding and Mitch Mitchell allege that the two musicians (both 20 years of age at the time, and then considered minors under UK law) entered into their recording agreement in circumstances of undue influence.
Lesson 4: Expect the unexpected
When the Jimi Hendrix Experience released its debut album "Are You Experienced" in 1967, very few people, let alone the members of the band themselves, could have predicted that the band would have nearly 8,000,000 monthly listeners over half a century later. Fewer could have been able to predict that those 8,000,000 monthly listeners would be digitally "streaming" those songs from an ethereal platform in the "cloud" onto a portable supercomputer the size of your palm.
Copyright in musical works lasts for 70 years after the death of the author, while performers' copyright in a sound recording lasts for 70 years from the date the recording was first released. It is important to keep this in mind when entering into any contract in relation to your rights. You don't know how successful your music may be in 20, 30, 60 years' time (or how many successive generations might live off the royalties).
It is also important to keep in mind the fact that as technologies change over time, so do the ways in which people receive and experience your music. In recent decades, the rise of digital streaming platforms has led to a number of disputes over musicians' entitlement to royalties on streams under contracts signed in the 70s that (unsurprisingly) are silent on the issue. That is why when negotiating contracts for the transfer of your rights, you should consider whether the transfer is for a specific set of forms of exploitation only, and whether you can reserve rights in relation to other forms that might arise in the future.
Lesson 5: Seek independent advice
This really should be lesson one. Always make sure that you seek advice from someone before making decisions to enter into agreements regarding your music. Make sure that person is independent and acting in your best interests. Don't make the same mistake as Noel Redding and Mitch Mitchell who it is said sought advice from their managers before signing a recording agreement with their managers.
This article forms part of DCC's Music and IP initiative.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.