Question A
When a member leaves a band, it can often be a contentious issue to determine ownership rights over the band name. Ideally, preventative measures should be taken in the form of a Band Agreement that explicitly states each members’ entitlements in such incidents. In the absence of such an agreement, it can be difficult to ascertain individual members’ rights to use the band name when a member leaves the band (Simpson, 2012).
Whilst a name is an asset, it would not be accurate to say it can be owned. However, if the band name is a registered trademark, the Trade Mark Act 1995 (Cth) dictates that the name is personal property of the person or group that trade marked it. Had Tom personally trade marked the name Drumskin, he may be able to continue using the name (“Business Names, Trade Marks & Domain Names”, 2012). However, as most bands do not go to the effort of officially trade marking their band name, it is safe to assume that this is the case with Drumskin. As such, Tom is unlikely to be able to operate under the name.
Generally speaking, ownership of a band name is split equally between members of the group. In the case of a band break up, this would result in no members being able to continue using the name for a different musical project. However, in the event of only one member choosing to leave the band, ownership of the name customarily stays with the band, regardless of who created the band name. It is important to note, however, that this is not necessarily legally enforceable – the legality depends on other factors at play. For example, it is still theoretically possible that a leaving member may form a competing musical project with the same name. In this case, a lawsuit may be filed against the leaving member. As such, these matters are generally determined on a case by case basis whereby judges will take certain other elements into consideration (Salazar, 2017).
For example, it is important to consider the members of the band that were part of the group when the name first gained a “secondary meaning” – essentially when the name was first publicly recognized. Examples of this can include public performance or releasing music under the name. If it can be proven that certain members were publicly identified as being members of the band, a court may prevent usage of that name by other individuals who were not part of the original group (Salazar, 2017).
It is also important to recognise which band member/s can be seen to have ‘artistic control’ or constitute the ‘face’ of the band, and for how long that has been the case. As Tom was neither the major contributor to either the artistic or branding elements of the group, it is unlikely that he would pass this particular test (Salazar, 2017).
A well known case study of this is Pink Floyd. Roger Waters was a co-founder, bassist and key contributor to the music and audiovisual work of the band. He decided to leave the band in late 1985, under the assumption that the band would break up following his departure. When the band began work on their next record the next year, he began to seek legal action to prevent the group from using the name without his consent. After years of legal battles, Waters was unsuccessful as he was not considered a majority contributor to the band and thus the group continued to use the name (Dahl, 2015).
Thus it can be seen that it is rare for a leaving member to retain ownership of the band name unless they are considered to constitute a majority contributor to the band’s sound and image. Therefore, it would be advisable for Tom to refrain from using the name ‘Drumskin’ as a title for any future musical projects.
For future reference, a band agreement should articulate one of the following options in order to prevent any confusion in such situations. The first option is for the majority of the members performing together to continue using the name. The second option is that only a certain member/s who are key to the band are able to use the name. The last option is that in the event of any member leaving the band, no members of the band may use the name (Dahl, 2015).
Question B
Depending on the nature of the collaboration, Drumskin’s copyrights may be split in one of two ways.
If each member contributed to the songs in distinguishable ways, the works are considered “collective”. Keeping in mind that for a member to be considered a contributor, they must have contributed to the work in a “significant and original way”. If this is the case, the royalties will be split proportional to their contribution. For example, if Nick wrote the lyrics and Tom and Paul composed collaboratively, then the split would be 50% to Nick, and 25% to both Tom and Paul (Simpson, 2012).
In collective works, each co-writer has the right to license, assign or sell certain elements separately from the other’s contribution as each part is owned separately, barring an agreement to the contrary. In this case, Tom will continue to receive a third of royalties for works he was a co-writer in. However, Tom would not be entitled to exploit the copyright for a part of the music (i.e. composition) he did not contribute to without permission from the owner of that particular copyright. For example, if Tom only wrote the music, he would not be entitled to exploit the lyrics in any way.
If each member’s contributions to the songs are inseparable, then the songs are considered to be “joint works”. In this case, musical, literary and sound copyrights would be split equally into thirds unless there is a written agreement or APRA submission stating otherwise. This means that no one member may exploit, copy or distribute works without permission from other copyright owners (APRA/AMCOS, 2017). Each co-writer owns the copyright and is therefore entitled to have their publisher handle their share of the song, meaning that hypothetically, 3 publishers could be controlling one song simultaneously (Simpson, 2012). In this case, Tom will continue to enjoy a third of royalties generated by works he was a co-writer for.
In both scenarios, if the band breaks up or one member leaves, each co-writer will retain some form of co-ownership for the songs they contributed to. As such, the law entitles co-writers to continue performing such songs. Therefore, both Tom and the remaining members of Drumskin are able to perform the songs separately (“Working with Co-writers”, 2017). Additionally, Tom will be able to record cover versions of songs that he co-wrote if he ensures that he observes the Copyright Act or gets the relevant AMCOS license.
One last thing to consider is whether their record producer (if not a member of the band) has been given a writer’s credits on songs they have produced. Generally speaking, this is an industry faux pas but it still happens. It is a good idea to check any contracts to see whether the record producer is receiving a share of the royalties. If that is the case, each members share will be reduced proportionally.
As set out in the Copyright Act and the Trade Marks Act, there can be severe penalties for use of music that infringes on the rights of other contributors. Penalties include costs, damages and injunctions of up to $60,500 or 5 years imprisonment for individuals (“Copyright FAQs”, 2017).
For future reference, it is essential that all co-writers document their contributions to works and agree upon copyright and royalty splits as soon as certain works.