Business Structures & Taxation Law
Summary
In the course of this paper, the prospects and business structures will be examined for the band Black Narcissus, a five-piece death metal band that is currently assessing its future as a brand. There are many different factors contributing to their current success, and their immediate and long-term prospects as a band, which will be evaluated based on current taxation law and the conditions already facing the band’s future. Already, several issues have presented themselves that must be solved:
- The issue of writing credit between the two creatives of the band and three remaining band members who consider themselves part of the writing team, vis-à-vis APRA registration processes
- The upcoming and inevitable retirement of one band member due to a recent diagnosis of chronic fatigue syndrome
- Potential safety issues during live shows (e.g. pyrotechnics, live use of dangerous power tools)
- The impending offer of a record and publishing deal for the band’s existing and future songs
- Their current successful grassroots business model utilizing social media to personally sell merchandise to which they possess name and likeness rights.
- Ways in which to renumerate the band’s existing manager.
In order to properly serve the needs of Black Narcissus, the aforementioned issues must be addressed by adopting the proper business relationships and structures.
Writing Credits
Currently, the band exists as a five-person team – two of the members are the chief writers of the songs Black Narcissus plays. The remaining three members of the band are largely musicians, but consider themselves a member of the writing team. However, when it comes to formally registering the band and its songs with the Australasian Performing Right Association (APRA), issues regarding writing and credit for these songs may be present. Issues here involve, among other things, former band members leaving and being able to perform these songs on their own in an APRA licensed venue, provided the song was written by a member of the APRA (2012). One of the most important things to consider is whether or not the band members are all in agreement as to who writers the songs; while the two chief writers certainly will receive credit for their songs, the band must come to an agreement as to who considers themselves a part of writing the songs. Oral contracts are enforceable in Australia, but a written agreement between the band members as to who has actually contributed enough to each song to be given writing credit should be considered (APRA|AMCOS 2012). Having come to an agreement, the songs can then be registered with APRA with the appropriate writers.
In order for this band to succeed, they must be flexible enough to address the issues that they have in translating this act to a larger audience, or at least dealing with the prospect of possible record and publishing deals. Chief among these are the safety issues inherent to the pyrotechnics and other theatrics involved in a Black Narcissus show – namely, the use of a live, running chainsaw in the act. While pyrotechnics have been used in rock shows for decades, and are often a great deal of the entertainment value provided to audiences going to see a band, there are many safety regulations that must be adhered to in order to successfully and safely conduct this level of theatricality. According to the Government of Western Australia Department of Health (2009), substantial work must go into having an approved pyrotechnics show, including consultation from police and local government and forming risk assessment plans. This kind of hazard also requires added insurance for both the band and the venue (DOH 2009). While pyrotechnics are an important part of concerts in the death metal genre, great care must be taken.
One of the more pressing risks, however, is the use of the chainsaw on stage. At shows, the motor is said to be running, which means that a minor slip and fall could lead to substantial injury for band members and spectators alike. In order to ensure that the venues are safe, safety precautions must be taken – including dulling or removing the chain from the saw itself to lower its ability to cut. This way, the theatricality of the acts (and therefore their value) will remain without the risk of injury.
Managerial Issues
Currently, Black Narcissus employs a long-term manager whose renumeration should be an issue. There are two ways in which bands typically deal with managers: treating them as part of the band, or treating them as a separate business (Simpson & Munro 2012, p. 79). The latter option would be the most appropriate route for Black Narcissus to go, as the manager has their own interests to look after. This would make the manager sole owner of his or her business, responsibly only for his own expenses, and no property interests in the band itself (Simpson & Munro 2012, p. 79). This would also address any potential conflicts about profit-sharing, investment in the band itself, and more.
Line-Up Changes
The band’s lineup, like any other, is subject to change – factors from physical health of the members to creative differences, to even music company oversight, can lead to the dismissal or replacement of band members. Currently, there is only one major line-up issue with Black Narcissus: the impending retirement of one of their band members within two years due to illness. This is something that cannot be negotiated, as the concern is health-related. Often, concerns will arise about the continued career of the band member separate from the band with regards to rights to the songs they performed with the previous band, or acting as representative of the band (Simpson & Munro 2012, p. 3).
However, in the case of this band member, illness is preventing them from performing at all, meaning that he will retire from music performance altogether. To that end, music rights and name issues should not be an issue, and should not be pursued. In terms of how this affects the band’s long-term goals, the band members should work closely to determine how to continue without the departing band member – whether to take on a replacement or go on as a four-piece. If the band member plays an important role or instrument (like lead vocals, lead guitar or drummer), the search for a replacement or reassignment of his role should be considered. This decision should be made quickly before the solidification of a business structure is finalized, so that the search for a replacement can begin before the band member has to leave.
Record and Publishing Deals
In the wake of being offered recording and publishing deals, Black Narcissus should consider many factors. Record deals are always extremely attractive; in essence, they promise better exposure for a cut of the profits. At the same time, Black Narcissus has already established a solid fan base which they exploit via social media, selling their own merchandise in which they own their name and likeness rights. To that end, if their existing business model is successful enough, it may pay to simply reject the record deal and continue on their own. That being said, not signing a P&D deal with a label would incur many expenses on the part of the band which may not be welcome, including the payment for the creation and pressing of their own CDs and promotional materials, the creation of their merchandise, and so on (Simpson & Munro 2012, p. 410). Having a record deal would put the onus of those administrative costs on the record company, thus relieving them from the band and allowing them to benefit from royalties.
As for publishing deals for their repertoire, it is important to note that the band does not have to sign away their publishing along with their record contract (Simpson & Munro 2012, p. 141). The band may wish to retain control of publishing; given the grassroots nature of their promotion, it may benefit Black Narcissus to retain these publishing rights for themselves. Because of the revenue they bring in from merchandise, they should retain name and likeness rights as well, so as to retain a larger percentage of the profits. At the same time, they may end up missing out on mechanical royalties by missing out on the greater distribution a publishing deal would provide. Having said that, the existing nature of Black Narcissus as a successful group with a large fan base they sell merchandise directly to makes it more preferable to allow the band to keep that existing level of control. While many bands find it difficult to find huge success through the Internet and local marketing, Black Narcissus’ current model seems ot be working (Ellis 2003).
Business Structure Concerns
In terms of business structure, the various changes that are occurring may be better facilitated with the creation of a corporation, which allows for the maximum freedom in changing the structure of a band (Thall 2010, p. 78). This would allow the fifth member to be a part of it until he is no longer needed, in which case he can easily leave and the company can move on. However, an LLC might be a simpler option, due to the removal of personal liability and simpler structure (Thall 2010, p. 78). This would make the band more flexible and attractive to a record company looking to sign deals with them as an entity, especially given the dangerous nature of their shows.
Conclusion
The solutions to many of the aforementioned issues Black Narcissus faces as a band have been discussed, and recommendations have been made. Black Narcissus should become an LLC (limited liability company), with the ability to allow the fifth band member to leave and options to recruit a new member, should they deem it necessary. Safety issues with the pyrotechnics and other presentational elements of their performances would also be addressed by checking in with local authorities, and limiting their liability using the LLC structure. The manager should remain on, but as a separate business that has independent investment and expenses. The band should consider making the record deal, but waiting to sign off on publishing, in order to maintain a limited sense of autonomy for their social media presence and merchandise.
References
Australasian Performing Right Association Limited (2012), Working with co-writers,
APRA|AMCOS, Retrieved from http://www.apra-amcos.com.au/downloads/file/CREATORS%20-%20FREQUENTLY%20ASKED%20QUESTIONS/WC_Working-with-cowriters.pdf.
Ellis M (2003), ‘How to get a recording contract’, Digital Harmony, Retrieved from
http://www.digitalharmony.com.au/Pages/RecordingContracts.html.
Government of Western Australia Department of Health (2009), Guidelines for concerts, events
and organized gatherings.
Simpson S & Munro J (2012), Music Business (4th ed.), London Symphony Omnibus Press.
Thall PM (2010), What they’ll never tell you about the music business, Random House LLC.
