Tuesday, August 11, 2009

Brooks & Done

In case you have not heard, Brooks & Dunn announced on their official website that they are splitting up. As a fan of this amazing duo, I was greatly saddened by the news. As a former music attorney and current legal scholar, I was intrigued.

If you believe their website, and I have no reason not to, this is a very amicable split. Yet, often when a group or duo splits up it resembles a nasty divorce more than the break up of a band. For those of you that remember the legal battles between duet partners and close friends Dolly Parton and Porter Wagoner or bitter ex-band mates Al Jardine and Mike Love of the Beach Boys, you know how ugly and expensive these things can get.

For many music fans, this begs the question of why do so many former band mates have so much trouble with each other after a split? As I see it, there are two main causes. The first cause is personal. As is often the case with the end of any relationship, there can be a lot of personal baggage that has been festering under the surface of the relationship for years. Once the relationship ends, those issues surface with a vengeance. Aside from trying to be a better person, there is very little preventative steps anyone can take to address this cause.

The second cause is legal and much more preventable. From a legal perspective, the festering personal issues that surface at the end of a relationship are best dealt with before they ever arise. Any musician who is thinking about entering into a band will be well served to take the proper steps in the front end, when everybody is getting along, to decided what happens to the band's assets and liabilities upon a breakup, how decisions will be made prior to and after the break up, and what to do if a member wants to leave or a new member joins the band. These decisions should be documented in a written operating agreement that is agreed upon (i.e., signed) by all the members of the band.

By addressing these issues up front, the hurt feelings that may surface upon the split are just that--hurt feelings. They may bother you, but they don't cost you anything financially. If the band members fail to address these issues up front, the hurt feelings act as an insurmountable hurdle to any fair resolution of such issues. The parties then waste a lot of time and money in protracted and expensive litigation just to have a judge or jury settle these issues for them.

Again think of a divorce. If the husband and wife have a prenuptial agreement, the divorce is usually a rather simple matter. Everyone knows going into the marriage what is going to happen if the marriage ends. For the obvious reasons, it is much easier to convince your band mates to enter into an operating agreement than it is to convince your future wife to enter into a prenuptial agreement.