I am seeking feedback for a friend. A band has booted one of their band mates who is now seeking a refund of his recent cash contribution for the band's nearly-finished promotional demo CD. Opinions will depend on the following key facts:

1. Reason for being booted:
While ALL FOUR band members had missed a couple rehearsals each, he was the only one whose schedule was inflexible when they tried to reschedule to days other than the regularly scheduled day. It appears the band booted him so that the remaining members could enjoy a more flexible rehearsal schedule when someone had to miss the regular time. When he was forced to miss two of the regular rehearsal times, they booted him. He never missed any gigs.

2. The booted member's scheduling constraints were already known by the other members before the demo investment was made.

3. He was NOT the lead singer, nor the songwriter. He was the secondary guitarist. He helped record a few extra guitar parts and did some light mixing. They always praised and respected his contributions.

4. The booted member's share of the investment was $300, the same as the other three members, which everyone paid two months before they booted him out.

5. A week after being booted, when he requested a refund, he was told the promotional demo had just been finished.


Band Member "A" says:

"When the band agrees to lay off one of its members, regardless of the reason, the investments in the band must be forfeited, except for 'hard' purchases such as PA gear or a touring vehicle. Otherwise, we'd have to argue over recoupment of everything from use of my house for rehearsals, WIFI, utilities, and drinking water."


Band Member "B" (the booted secondary guitarist requesting a refund) says:

"The promotional CD is an item that represents future value to the band - either monetary or promotional - and is exactly equivalent to the 'hard' items you mention, e.g. touring vehicle, PA gear, etc. It is not a consumable (like utilities, rehearsal space, or drinking water), and it is not personal property each of us brought to bear for the benefit of the band (like each of our studios, computers, instruments, etc). So it is exactly like the hard purchases. Seeing as it is a hard tangible that represents future value to the band, it is fair that the remaining members who will benefit from this value divest me appropriately. At this point I no longer have a stake in the band, and this has occurred *before* any value from the CD's has been realized by the band (e.g. passing them out, selling them for $$ at shows, sending to promoters or venues, etc.)."


Please read carefully the above listed facts and two viewpoints. After weighing it all, which is the reasonable, fair, and professional viewpoint? Have you had any experience with this type of situation? I am open to suggestions.

Option 1:
Give him his money back.

If he had requested to leave the band that would have been different. However the band fired him not because of his playing, nor his attendance at rehearsals (which was as bad as everyone else) but because he could not reschedule to meet the requirements of others.

Option 2:
Don't give him his money back AND don't use the promotional material. - Burn it.

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The only excuse we have for making music in the first place is to make it differently..vis-a-vis our own difference (Glenn Gould)

I don't know which is really right legally-speaking, but as it's only $300, and seeing as they kicked him out, I'd give him his money back as a gesture of good will (and to keep him from going around telling everyone that the band are rip-off artists).

If he doesn't get his money back, he is surely entitled to take 1/4 of the CD's - might be worth something later on - you never know.

Investment in producing the CD is absolutely a 'hard' investment for the sole benefit of the band as a whole and sisngle entitiy -- just as a PA or van might be. I would argue that he should have his money refunded. Whether each of the remaining members stump up $100 or ask the new band member for a contribution and pas that on is up to the band to decide for themselves.

H

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Technical Editor, Sound On Sound

Give the departed band member his money.
He put the money in and committed to the band, clearly expecting to be part of it.
He's not now going to be part of the bands forthcoming success ( ) so why should he fund it?

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I've never liked a solo violin, you need at least five for a proper fire.

OK, let's boogie!

1. I am assuming that you are in the US, in which case (unless you live in Louisiana) you are subject to the Uniform Partnership Act of 1914 (or one of the various revisions of this act, the last one being in 1997).

2. I am a businessman and not a lawyer, but I have had to deal with this issue several times, both directly and indirectly.

3. I am based in the UK and Germany.

Notwithstanding all the above, let us go through the facts.

I am assuming that

1. The band does not have a contract or founding articles, other than the verbal contracts, such as "Ooo! Let's form a band!" and "Let's make a killer demo!" etc.

2. The total cost of the demo came to $1,200 and was only for the benefit of the band and it's career as a band.

3. The facts really are exactly as you have outlined. No hidden 'Gotchas!'

So far, so good. Now for the good/bad news. The band in the US, UK or Canada (or indeed any other jurisdiction based on common law) was a partnership. By expelling one member, the partnership has been dissolved and all property and investment has to be returned to the various members in so far as this is possible. The partnership and therefore the band no longer exists. The remaining three are of course perfectly free to form a new band, but their right to use the old name varies from state to state. (It was for that reason that the 'Small Faces' became 'The Faces' in 69 when Steve Marriott walked out. Yes, they were a UK band, but they would not have been able to call themselves 'The Small Faces' in the US.)

In the UK, all members may use the old name, so for a while we had the wonderful Bucks-Fizz battle, in which we had two competing versions of the act Bucks-Fizz, locked in a desperate duel to see who was more teeth-grindlingly dreadful. (I think it was a draw and someone had them painlessly destroyed and old aged pensioners on cruise ships everywhere could breath more easiliy.)

You are right in assuming that the demo CD is property, just like a band bus, or a PA or lighting rig. If the remaining partners refuse to 'Annie up the dough' then the departed partner remains part owner of the property in question and is beneficiary to a part of all incomes coming from that property.

You may even find that in some US states, the partnership has not been dissolved, unless and until all property has been returned in full to its rightful owner. That could mean (and I have experienced this one!) that the band has to pay one quarter of all incomes to the departed member. The case I experienced was very much like this one. The band kicked one member out because he was just not good enough and got someone else. Then they went on to have a good career and the fired member (on reading about the fame and fortune of his former friends) went to a NY lawyer who immediately started to drool all over his desk and play with himself. According to the fired member, the words 'Youser! Youser! Youser!' and 'Habba, Habba!' were uttered. Probably, they were just obscure legal terms!

"You're still a member of the band!" he told his new client (and new closest friend!) and it was boat-payments all round, except for the band, who then discovered that they had one extra member, who was entitled to his share of all past incomes, including gigs and merchandising. Because of all the investment that the band, the label and others had made, the fired member was the only one to actually come out of the whole thing ahead of the game. Well, his new best friend didn't do too badly either!

Anyway, by not paying the paltry sum of $300, the band you are asking about, may find themselves for ever having to pay someone for not playing. And as the song says - nice work, if you can get it!

If I were representing the band, I would bust a fetlock to pay that man his $300 and ask him (very nicely and possibly with the aid of money) to sign a waiver, relinquishing all rights, titles and incomes that may come from the former band. I would then form a new band and make damn sure that everybody signs up as shareholders in a limited company with proper founding articles. A simple sheet of paper will do, they don't even have to go to a lawyer.

If I were the fired member, I would write a simple and short letter, telling the remaining three that, because the partnership has not been dissolved in accordance with the Uniform Partnership Act of 1914 and the Revised Uniform Partnership Act of 1997, I shall reserve and maintain my right to inspect the books at each and every reporting interval (usually quarterly or annual) and that all books, tax returns, contracts and other legal documents would be incomplete without my signature as full partner. I would go on to point out that as this was a general partnership not subject to contractual limitations, I shall reserve and maintain my right to make purchases, sign contracts and enter into other binding commitments (for example bookings) on the behalf of the band, for which all partners are jointly (as a partnership) and separately (as private individuals) fully liable and without limitation.

That should get their attention!

And thats the legal standpoint and absolutely bang on. However I'd go with another one - pay him the $300 because the rest of them are just being damn unfair. I cannot for the life of me understand how they could see it any other way unless they are just dumb/mean spirited. Sounds a hell of a lot like the "band" ripped him off on purpose to get HIS $300 in the first place (i.e., kept him on until the CD was done)

If it was a year later - fair enough. Otherwise, give him the money. Or pay him his share for every gig and sale they do in the future even though he's not in the band.

And so says everyone here, I think. As expressed in the original post the morality is very clear. The legal side is salutary to know about.

CC

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Put the fun back into dysfunctional.
Mr Punch's Studio

G'day everyone!

Thanks to ALL of you for the excellent feedback and advice. I will pass this on to my friend.

I've tried my best to represent the facts exactly as I understand them, but if any "gotchas" surface, I will share them in the thread.

Excellent to know about the Uniform Partnership Act, because indeed they are in the US and did NOT have a written contract. I'm assuming they won't think to draft a waiver for him to sign to relinquish his rights.

So if I understand Red Bladder's (entertaining) explanation above, the partnership can only be dissolved if ANY ONE of the following occurs?

A) They refund his money *in full*, WITHOUT a signed waiver (whereby the full refund alone is sufficient to dissolve the partnership)

B) They refund his money *in full*, and with a signed waiver

C) They refund only *part* or *none* of his money, but WITH a signed waiver (whereby the waiver alone is sufficient to dissolve the partnership)

All three scenarios would dissolve the partnership?

As I write this, the band has paid him a partial refund, albeit reluctantly. If the partial refund (without a signed waiver) is all he receives, that means the partnership still exists?

Quote lindy3080:

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So if I understand Red Bladder's (entertaining) explanation above, the partnership can only be dissolved if ANY ONE of the following occurs?

A) They refund his money *in full*, WITHOUT a signed waiver (whereby the full refund alone is sufficient to dissolve the partnership)

B) They refund his money *in full*, and with a signed waiver

C) They refund only *part* or *none* of his money, but WITH a signed waiver (whereby the waiver alone is sufficient to dissolve the partnership)

All three scenarios would dissolve the partnership?

As I write this, the band has paid him a partial refund, albeit reluctantly. If the partial refund (without a signed waiver) is all he receives, that means the partnership still exists?

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No! No! No!

The partnership is still fully in force, even if they give him $1m! Money does cause the dissociation of the partnership. Until such time as his partners have filed for his dissociation, he remains a partner.

Beyond that, the remaining partners have to pay him damages to the value of his share (i.e. one quarter) of the total partnership assets at current market value of those assets.

Assets include the band name, that demo and any items bought by the partnership and of course the market value of any goodwill in the form of gigs booked and turnover expected (realistically!) Interest is payable from date of dissociation to date of payment.

The UPA of 1914 and the RUPA of 1997 clearly states that a partnership is formed when the partners begin to engage in a joint commercial venture. In the absence of founding articles, the act requires all measures to be made in writing. So your friend entered into a business partnership with the words "Ooo! Let's form a band and let's make a demo for $1,200!" but that partnership can only be dissociated in writing. The act is VERY, VERY clear on that one point.

Even if they pay him the full $300 and then break camp, smash crockery and hurl elephants, he is still a member of that partnership.

It's all there under Corporations Code 16701-16705.

I previously stated that the partnership and therefore the band was dissolved by the remaining partners telling him "Get Thee to a Nunnery, go!" This was wrong. What I missed was the statutory requirement to do this in writing (confusing UK and US law!) This looks like wrongful dissociation under Section 16602, and he may be due damages. Any other amounts owing by the dissociated partner to the partnership are offset against the buyout price.

Should they fail to dissociate the partnership (and they may need to get legal advice to do this properly - won't that be fun!) and they then become rich and famous (you may start holding your breath now!) then see my example above and the lawyer who drooled.

Partnerships are like marriages. You only have to say "I do!" and for a short while, everything is just peachy. But when they go wrong, it's like having your testicles tied to a minefield.

Quote The Red Bladder:

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Until such time as his partners have filed for his dissociation, he remains a partner.

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Quote The Red Bladder:

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Even if they pay him the full $300 and then break camp, smash crockery and hurl elephants, he is still a member of that partnership.

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Ahhh, I'm getting it now!

I truly appreciate your willingness to clarify this. This is invaluable information and makes a great springboard for further research.

Whether or not my friend chooses to act upon the legal side of the situation, at the very least this information will make him (and, by association, his future band mates) wiser when engaging in band business.

Thanks again.

Please remember that this is totally 'bald men fighting over a comb' or better still 'babies fighting over a dirty pacifier' territory. I deal with a case like this several times a year, though usually it involves who has the rights to some set of songs that no normal human would want to listen to. I get this with head-banging Nirvana and Metallica wannabees and with strange women screaming through rouged holes, claiming that all that agonised shouting has something to do with Schubert's Lieder.

And then there are the singer-songwriters who (a) can't sing, and (b) wouldn't know a decent song if it came up and bit them on the nose, who spend large sums, recording and protecting rubbish.

BUT

By not sorting out the legal and artistic relationships between band members BEFORE you set off, you are condemning the whole enterprise to failure, no matter how great the music or the stage show might be.

In this case, the remaining three members have wrongfully (we assume!) excluded your friend from the partnership and therefore, have also freed him from all obligations as a partner (e.g. play at gigs, meet expenses, attend rehearsals etc.)

BUT they have not freed themselves of all obligations of the partnership to your friend. Specifically, they still have to pay him any incomes that come from the partnership. Once again, the RUPA of 97 is very specific and clear about all this.

They have to do two things to dissociate him from the partnership -

1. Formally and in writing, file for his dissociation.
2. Pay him for his share of the real market value of the partnership. This would certainly include his $300 and possibly other recompense for time and effort.

And wish him better luck for the future!

Having read the supplied information, but with no legal knowledge, tell the guys to give him his money.

I fail to see a reasonable point of view whereby you can kick someone out of a band and keep their $300. Based on the supplied information, your mates aren't nice people imho.

Bazza

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This time next week, who'll give a sh*t
http://www.podcastrevision.co.uk

"When the band agrees to lay off one of its members, regardless of the reason, the investments in the band must be forfeited, except for 'hard' purchases such as PA gear or a touring vehicle. Otherwise, we'd have to argue over recoupment of everything from use of my house for rehearsals, WIFI, utilities, and drinking water."

I particularly despise this guy.

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This time next week, who'll give a sh*t
http://www.podcastrevision.co.uk

Quote Bazza:

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"When the band agrees to lay off one of its members, regardless of the reason, the investments in the band must be forfeited, except for 'hard' purchases such as PA gear or a touring vehicle. Otherwise, we'd have to argue over recoupment of everything from use of my house for rehearsals, WIFI, utilities, and drinking water."

I particularly despise this guy.

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Me too. To the OP: Tell your mates you don't want to be mates with them anymore. Your life will definitely improve.

Also, if your "mate" is actually code for "yourself", we all hate you and hope you will fail in life

Quote johnny h:

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Quote Bazza:

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"When the band agrees to lay off one of its members, regardless of the reason, the investments in the band must be forfeited, except for 'hard' purchases such as PA gear or a touring vehicle. Otherwise, we'd have to argue over recoupment of everything from use of my house for rehearsals, WIFI, utilities, and drinking water."

I particularly despise this guy.

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Me too. To the OP: Tell your mates you don't want to be mates with them anymore. Your life will definitely improve.

Also, if your "mate" is actually code for "yourself", we all hate you and hope you will fail in life

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LOL

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This time next week, who'll give a sh*t
http://www.podcastrevision.co.uk

Quote johnny h:

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Me too. To the OP: Tell your mates you don't want to be mates with them anymore. Your life will definitely improve.

Also, if your "mate" is actually code for "yourself", we all hate you and hope you will fail in life

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P.S. "My friend" is definitely NOT code for myself...

He is actually a very special person in my life whom I care for very much. (And I'm his special gal!)

Thanks to everyone for the advice. As you may have deduced, my friend is "Band Member B".

To be sure, I reconfirmed the circumstances. In addition to my OP, here's more of my understanding:

When his schedule became inflexible earlier in the year, the band agreed to a specific rehearsal day and were *amenable* to his schedule constraints. They all knew this quite well. Over the year, EACH member was responsible for some rehearsal cancellations. But because of my friend's schedule constraints, they grew increasingly frustrated not always being able to reschedule to different days. Psychologically and verbally, the band began to shift the onus for their scheduling frustrations onto my friend, since he was the one who usually could not switch days whenever one of them cancelled. At the end of summer, each contributed $300 cash to make a promo demo CD. They knew my friend had limited time to participate outside of regular rehearsal times. More rehearsals were missed ("Band Member A" was even *mysteriously* AWOL for some rehearsals). As the demo was nearing completion, my friend had to miss a couple rehearsals himself due to an unusually significant work deadline. The others then decided that enough was enough and they could no longer be amenable to having just one specific rehearsal day. It just wasn't working with everyone's cancellations. They immediately voted out my friend on grounds of his inflexible schedule, calling it "lack of commitment".

He quite gracefully and cordially accepted their decision to boot him. As matter of fact, he completely understands why the others have decided to evolve towards a more flexible rehearsal schedule without him.

Now, whether the promo demo CD was nearing completion or actually just finished when they booted him, he'll never know. But either way, he feels justified to request divestment of his $300 contribution (as articulately explained in his argument shown in my original post).

So, he sent the band a very polite refund request.

In response, one remaining member agreed to pay his personal share of the refund, although a bit hesitantly.

But "Band Member A", in addition to his argument shown in my original post, argued that the request "breaks protocol" with any other band he's been in, calling the request an act of "bitterness". However, after hearing more of my friend's reasoning, the guy said he'd "negotiate" and partially pay his share of the refund (50%, plus he'd throw in a few bucks for some CD sales, which apparently he'd sold around the time they booted my friend while he still didn't know the CD's were finished).

Moreover, "Band Member A" is blaming my friend for putting the band in the "uncomfortable position" of having to "find a replacement, re-strategize, and refashion our musical approach." (Quite the fuss over a secondary guitarist.) The band apparently thinks that by deciding to evolve their rehearsal schedule and boot my friend, he has greatly inconvenienced the band and somehow HE owes THEM. Personally, the band's viewpoint confounds me.

I told my friend he deserves a full refund. Judging by the replies here, it is good to know I am not alone.

I appreciate all the feedback here and have forwarded this thread to my friend. It is affirmation that he is, without a doubt, being upright, fair, and professional. (And a damn fine nice guy, I might add.) Slightly shaken at the band's reaction to his request, I think the affirmation here is priceless.

Thanks.

Quote lindy3080:

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Quote johnny h:

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Me too. To the OP: Tell your mates you don't want to be mates with them anymore. Your life will definitely improve.

Also, if your "mate" is actually code for "yourself", we all hate you and hope you will fail in life

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P.S. "My friend" is definitely NOT code for myself...

He is actually a very special person in my life whom I care for very much. (And I'm his special gal!)

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Just to be clear, it's 'band member A' that we don't like. I'm assuming it's 'band member B' that you're being 'special' with. This could all get very confusing...

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This time next week, who'll give a sh*t
http://www.podcastrevision.co.uk

Quote Bazza:

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Just to be clear, it's 'band member A' that we don't like. I'm assuming it's 'band member B' that you're being 'special' with. This could all get very confusing...

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Correct!!

While I was originally trying to provide completely unbiased information (so as not to skew responses), I am comfortable disclosing my own positions now:

"Band Member A",

"Band Member B", "my friend", my husband!

Sorry if I caused some confusion along the way. It was a bit tricky for me!

Quote lindy3080:

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I told my friend he deserves a full refund. Judging by the replies here, it is good to know I am not alone.

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Quite - the law is on his side as well. Not only do they have to compensate him for the $300, but also to the extent of one quarter of the market value of the band's assets - as these may be purely virtual and in the form of goodwill, given the behaviour of the remaining members to date, this value may not be very high!

ALSO

the remaining members MUST dissociate him in writing. If they do not do this, even if he no longer wants to be a member of the band/partnership, he still is a member and all sorts of nasty consequences (mostly for the remaining partners) follow this. In particular, if they ever earn any money, they will have to continue to pay him his share and under certain circumstances, if they declare bankrupt, he may be liable to the full extent of all he owns.

It is, as I stated, like marriage. It is very easy to go to a pink hut outside Las Vegas and have a smelly bloke called Jed, dressed as Fat Elvis and smelling of Walmart deodorant sing 'My Way' and say 'I do!' but it is much more difficult to undo that act. You don't get a divorce by simply saying "That's it, I'm going to live in a trailer with a Great Dane instead! You'll find me in a van, down by the river!"

The same applies to a partnership. They have to be dissolved properly.