Tech Tip:New Band Members and Departing Band Members
by Jeffrey and Todd Brabec
The record company will always demand that any new member of a contracted group ratify and sign the existing recording agreement before becoming part of the group. This is true whether the new performer is replacing a member of the group who has left or is being added to the group without any current member leaving.
The ratification form that is signed by the new member can take a number of different forms, but usually will provide that the new member has read all the provisions of the recording agreement, has received independent legal advice from outside counsel, and agrees to be bound by all the terms and conditions of the recording agreement as if the new member were an original signatory to the agreement.
The effective date of the new member's acceptance of the contract is usually the earlier of the date of his or her signing of the ratification agreement or the new member's actual rendering of services to the group.
In the case of a band member's leaving the group, the recording agreement will always provide that the leaving member must send written notice to the record company.
Within a certain number of days after receiving the notice, the record company will usually have the right to elect a number of different options relating to not only the leaving member of the group but also the remaining members of the group. These options include the right to terminate the recording agreement with the group, the right to require the remaining members of the group to provide a substitute performer for the leaving member, and the right to have the remaining members perform as a self-contained act without replacing the leaving member.
The record company will also have the right to negotiate with each performer of the group with respect to the signing of a new recording agreement.
For example, the company may have the right to acquire the individual services of any member of the group by sending that member notice of such within 30 to 90 days after a leaving member has given notice.
In many cases, if the record company elects to sign an individual remaining member or a leaving member, a provision will bind the parties to good-faith negotiations concerning the terms of the new agreement.
If within a certain time period (e.g., 60 days or 90 days) negotiations do not result in an agreement, the artist will normally be able to negotiate with other record companies, with the proviso that the current record company will have a certain number of days (usually 30 to 45) to match any offer from another record company. In other cases, the record company, if it so chooses, will elect to have the leaving member sign an identical contract to the one that he or she signed as a group member, the term of which usually consists of the remaining balance of the group contract.
In addition, some record companies will require any leaving member to go into the studio to record a number of demonstration recordings pursuant to either a budget approved by the record company or one that is mutually approved by the artist and label within certain previously negotiated guidelines.
The record company will then usually have a specified number of days after it receives the finished demo recordings to decide whether or not it wants to exercise its right to sign the leaving member as an exclusive recording artist. Under this type of provision, the record company is giving itself the opportunity to listen to what the leaving member can do as an individual artist and make a decision only after it is able to review newly recorded performances.
© 2005 Jeff Brabec, Todd Brabec
This article is based on information contained in the new, revised paperback edition of the book "Music, Money, And Success: The Insider's Guide To Making Money In The Music Industry" written by Jeffrey Brabec and Todd Brabec (Published by Schirmer Trade Books/Music Sales). musicandmoney.com