A – Ownership of a band’s name largely depends on whether there is an informal or formal agreement covering the bands’ name. Since the name of a band can be its most important asset, and often its only asset, it is extremely wise to settle this question before the band becomes popular. This is usually done through a partnership agreement. You could also have formed a company, in which case the company will own the name and the band members, as shareholders in the company, will own the company. But I suspect that you haven’t formed a company nor prepared a partnership agreement.
All partnerships should have a partnership agreement and I highly recommend that all bands enter into one. It will outline the terms and conditions under which you do business. It will deal with matters such as the band’s name and who has the right to use it, who owns the songs, what to do when someone leaves the band, how to kick someone out of the band, or anything at all that is important to you.
If there is no partnership agreement, the general law of partnerships presumes that when a group of people act together for a common goal, they are a partnership. So when a band breaks up, all members have an equal right to use the band’s name, as no one has exclusive possession of the name.
Unfortunately, without a partnership agreement you are relying on the legal system to resolve this dispute. There is very little law on this subject, so although most disputes start out as a lawsuit they invariably end up being resolved privately. The courts will consider one or more of the band members to be “key” to the band (they write the lyrics, compose the songs, sing etc.) and if anyone uses the name without these key individuals present, then there is a potential claim that they are misleading the public. So it’s possible that a court may insist that a disclaimer be required if the band excludes the key band member(s), or that they will have to slightly adjust the name that they use.
What might be in your favour, is that you were already a band before the two members you are fighting with joined the band. You might be able to claim that you are the original band members and therefore the band name belongs to you both jointly. However, a court is just as likely to say that because use of the name wasn’t defined in advance when the “new” members joined, that all band members now have an equal right in it and then revert to the “key man” principle to decide who can use the name.
Alan Duffy