Q&A: Bev Green

May 1, 2007 12:00 PM, By Mike Levine

           

FIG. 1: Attorney Bev Green recommends that bands or songwriting partners make agreements between themselves before they achieve any success.

Sooner or later in your musical career, you'll need to sign a contract or make an agreement. But before putting pen to paper, it's important to understand what you're getting into. The surest way to protect yourself is by enlisting the help of a music attorney.

To find out what some of the common legal mistakes are that musicians make and when they should seek legal advice, I contacted Bev Green (www.musiclawyer.com). Bev (see Fig. 1) is a highly experienced Bay Area-based entertainment attorney who has represented countless musicians, songwriters, and bands, including the Doobie Brothers, Zakir Hussain, Huey Lewis & the News, and Joe Louis Walker. Green is also a member of the board of governors for the San Francisco chapter of NARAS (the National Academy of Recording Arts and Sciences) and has taught music-business law at San Francisco State University. She had so much useful legal advice to give during our interview that the article grew into a two-part story. Here is part 1.

What are some of the most common mistakes that musicians make in the legal realm?

One big area is with contracts: signing bad contracts and signing contracts before getting legal advice. Another problem is thinking that you don't need a written agreement — within a band, for example.

Musicians often worry that bringing lawyers in will ruin a band's synergy and break the members apart.

Right, I understand, but that's like living in a dream world. If things aren't clear between the band members, these [legal] issues will come up if a band is successful. And there might also be outside forces like record labels, or managers, or other people who might be trying to split them apart. That happens. So it's kind of putting your head in the sand not to want to invest in taking care of business up front. Sometimes people get into really horrible messes if they don't.

Another thing that keeps musicians from turning to a lawyer is that they don't want to spend money on a situation that may never bring in big bucks.

The problem is that the agreements that artists enter into early on are likely to affect them for most, if not all, of their career.

What areas of intraband agreements are the most important to iron out?

One is the business format — how band members are going to run the business. Is it going to be one person's business, with that person hiring the others, or will it be some other kind of business, like a partnership or a corporation or an LLC? Then, in that context, there's always the issue of continuity of membership, termination of members, who can fire whom, who can continue, who keeps the copyright, and who keeps the trademark. It's also important to work out what's going to happen in the worst-case scenario: if the band terminates or if somebody dies or something unexpected happens. Or if band members who leave will continue to get some sort of compensation for what they did while in the group. That may be a continuing money participation or a continuing ownership interest. The consequences are very different for each. And it should all be worked out in advance.

When musicians write songs together, whether in a band or just as songwriting partners, should they have some sort of an agreement?

Yes. When they write songs together, when they record together. People's memories differ as to what actually happened or what their agreement was. Or there could even be downright fraud or stealing if people grow into a negative relationship. So it's really important to have an agreement in place, while you're all still friends and while you don't think you need one. That's the easiest time to take care of business.

So if someone is in a band or has a songwriting partner, would you recommend that each person get their own attorney and have them all work something up?

It can get awkward if everybody has their own attorney. Sometimes, of course, it makes sense to do that; it always depends on the particular circumstances and relationships. Often what will happen as a practical matter is that the band will ask one attorney to represent them collectively.

A neutral attorney, I presume — not someone that one of the band members has already been using.

Right. Sometimes a band that's in a neutral situation comes in to me — I don't know any of them yet, and they want me to help them write up a band agreement of some kind or help them work through various issues that they have to deal with, such as who's going to own the copyright, the trademarks, the band name, that kind of thing. I might even act as a scribe in preparing the agreement and help them think through the issues by giving them questions and maybe even asking them to come back to me with what their oral understanding is. Then I'll help them work out the rough edges and help them write it up. In the course of writing it, dealing with the issues that come up, and putting together a complete agreement that has all kinds of contingencies, I'll raise some of these questions that might come up later.

Getting good legal advice must be important when an artist, a composer, or a band is negotiating a contract with an outside party such as a producer.

Whether it's a producer, a production company, a small record label, a major record label, or an agent, getting good legal advice is very important.

Some people think that it's advantageous if they're offered a contract that's only a page or two in length. Is that a mistaken opinion?

Yes. Even though I like to keep contracts as short and clear as possible, it's no good to have a contract where the other side says something like “We own everything, and you get screwed.” That could be real short, but it's not going to work. And, of course, [a clause like that] won't be that obvious, but it could be in there. Sometimes one- or two-page agreements that come from the other side just cover all the things they want, and they don't mention the things that you want.

What kinds of issues are you referring to?

For certain commitments or conditions to happen or for certain controls or certain rights to terminate if things don't work right. Making sure to spell out clearly what you get. So shorter isn't always better, and people shouldn't be fooled by somebody saying, “Well, it's just a one-page agreement — why don't you sign it.”

If the other side has drafted the agreement, you've got to be particularly cautious, right?

Yes. A lot of times, the other side that musicians are dealing with has more money. And they might have an attorney, and the musicians might think, “Well, let's rely on their attorney to do the work — they'll pay their attorney and we'll save money.” Of course, it's pretty obvious that in that case, that attorney is working for the other side and they're going to be slanting that agreement. And even though they might be real friendly and hang out with you, it doesn't matter.

So you recommend that a musician should bring in an attorney as soon as some kind of contract seems to be a possibility, and that they have their attorney negotiate the terms with the other attorney.

Yes, for a couple of reasons. You mentioned musicians not wanting to wreck the vibe by bringing in a lawyer. But if they turn it over to an attorney, then they're not personally involved; it keeps them from getting in each other's faces about those things that are uncomfortable to discuss. Also, if they find an attorney that they're comfortable with, they shouldn't have that problem. If they have an attorney that they think is a shark, then that attorney might well be a shark, and they shouldn't work with him or her. It's like going to a dentist: if you've got a toothache, you want to go to a dentist sooner rather than later because it's only going to get worse and become more expensive and painful to deal with. I think that's a great analogy for dealing with legal issues.

Be sure to check in next month for part 2 of this interview, in which Green will talk about the specific legal issues faced by composers and songwriters.

Mike Levine is an EM senior editor.