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A Question of Ownership - Falling Out with Old Band Mates

Commentary by Kenny Love


This week, we have a possible issue of legality and ethics, of which you probably don't want to ever find yourself in.

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"Dear Kenny,

I have been a musician for 29 years, mainly playing guitar. Because I had problems finding other musicians that could 'hear' my music the way I did, I learned other instruments so I could record my visions my way.

Such is the case with my last project. I composed and performed all the instruments' parts in the songs we recorded. In fact, many of the lyrics were never even set in stone and the singer basically only contributed a concept and title to most of them.

I have since had a falling out with my old band (after we were together 9 years) and now I am being approached by some interested promoters and producers that say my music has commercial merit.

Is there any legal precedent against me using my material "As Is" and replacing the lyrics with my own? Is this going to cause a legal battle with my old singer? Would he have a leg to stand on?"

- Stuck In Sacramento

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Dear SIS:

I will respond to your questions on a dissecting scale, since such responses can, at points, tend to be intertwined...

> I composed and performed all the instruments' parts in the songs > we recorded.

In this case, you are, at least, 50% creator/owner of the songs...the other percentage(s) will be based on whether or not there were other contributors of lyrics.

> In fact, many of the lyrics were never even set in stone and the > singer basically only contributed a concept and title to most of > them.

By your stating that the singer "only contributed a concept and title to most of them" readily confirms the singer's authorship to the particular version in question. Whether or not the lyrics were "set in stone," of which I assume you mean that they were never reduced to formal documentation/registration, is irrelevant.

For, the law of copyright assumes that the mere intellectual creation of a work, in part, or whole, is rightfully owned by the creator. And, if you use lyrics that your former singer authored, your former singer is rightfully, legally and ethically due royalties/compensation as the creator of such lyrics.

Again, Copyright and rightful ownership is legally determined by the creator at the time of creation, and not whether or not the work is officially registered with such an organization as the Library of Congress.

Such registration is simply the means and process advised to be used to confirm and validate a date/time creation of a work in question, primarily, for the legal system and the possible collection of damages should a dispute such as this ever arise and reach its point.

> I have since had a falling out with my old band (after we were > together 9 years) and now I am being approached by some > interested promoters and producers that say my music has > commercial merit.

Again, if your former singer, or any other band members contributed parts, whether instrumental or lyrical, they are rightfully due compensation for their contributions.

And, if this is the case, you must determine whether or not your former band mates' contributions also contributed to the attraction of the promoters and producers who are now interested in your music.

Alternatively, you should ask yourself, if you were to replace those specific parts, would the embodiment of work still be attractive and interesting to these same promoters and producers?

Even still, let's say that your prospects were "hooked" by a melody that one of your former band mate(s) created, and you replaced the lyrics, but kept the melody. In my opinion, you would still be liable to your former band mate(s). In contrast, the same would be true if you replaced the melody, but kept lyrics that your former compadres had written.

> Is there any legal precedent against me using my material "As Is" > and replacing the lyrics with my own?

Again, see my previous answer, which begs the question of both legal and ethical ramifications.

> Is this going to cause a legal battle with my old singer?

Well, let's put it this way...if I contributed lyrics, music or otherwise to your recording that sold 10.5 billion copies, and ended up winning Gold, Platinum and Multi-Platinum sales awards, I would come after you faster than an Anaconda in an African jungle on a windy night... er, legally, that is...

> Would he have a leg to stand on?

Yes, he probably would. In fact, he might have two legs to stand on, not to mention three or four. Here's my further advice...

Don't allow what appears to be the first remnants of greed to creep into the situation, as a result of having sparked the interest of people interested in taking your work to a higher level. You are better off nipping this situation in the bud, so to speak, with your former members, and as quickly as possible while the situation is still legally and financially manageable for all.

You are also likely to discover that the agreement or contract that you will be expected to sign with your prospects, is going to contain a disclaimer/clause, whereby, it states that you assert that the work is completely owned by you, and should any legal disputes arise, you are on your own and hold them harmless from any involvement or participation in any resulting legal action. Again, it is better to settle this issue with your former members immediately.

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Kenny Love has an extensive background in both the Music and Writing industries. Learn about the new services that he is providing to unsigned and independent recording artists in response to today's shaken and fractionalized Music industry by sending an email request to klmubiz@getresponse.com.

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