Nigel Parker examines the very personal litigation that can arise between former bandmates on questions of creative credit and unfair remuneration

When erstwhile Bob Marley and the Wailers' bassist Aston 'Familyman' Barrett recently lost his High Court claim to a share of the late Bob Marley's royalties, he became the latest casualty in a steady stream of disputes between former musical collaborators.


Other dust-ups have included the £1 million victory of former Smiths drummer Mike Joyce against former bandmates and songwriters Morrissey and Johnny Marr, and the unsuccessful claim of three members of Spandau Ballet against their ex-colleague and songwriter, Gary Kemp.


To many, the results of these cases resemble a lottery, whose outcome appears to depend on apparently minor points of difference. Understanding the practical legal, commercial and even psychological impact of these details is crucial when advising performers and songwriters, at whatever stage in their career.


The close-knit collaborative atmosphere of a musical group, especially during the sound recording process, creates a spirit of common purpose and identity not unlike marriage. And as with marriage, it is difficult for performers at this stage to countenance the possibility of a break-up, let alone the distribution of common property if the unthinkable should occur.


The tendency is to meet any attempt to provide formally for this eventuality with such glib dismissals as 'it'll never happen to us' or 'we'll sort it out when the time comes'. But a little perseverance from the group's lawyer and manager at this stage can save a great deal of costly heartache later on. The precise commercial terms of any band agreement are less important than the certainty inherent in a binding contract.


It is not widely understood that performers are as capable of imposing unfair terms on one another as record companies on artists. The group's leader, usually the principal songwriter, frequently comes to regard his fellow band members as no more than replaceable hired guns. A songwriter's commercial power allows him to present the rest with a stark choice &150; either stay in the band on a modest wage, or leave and get nothing.


Whereas a songwriter enjoys an automatic right to share in publishing income by virtue of his ownership of copyright in his work, a performer, even a regular member of a band, owns nothing. He earns only what he can negotiate, and this depends largely on being a party to the band's contract with its record company.


Many long-standing members of highly successful groups are, usually at the insistence of the band's songwriter, not formal parties to the band's record contract. Their sole income is a salary paid by those group members who are contracted to the record company, as opposed to royalties direct from the company. Whether or not this practice is fair may depend on which side one is advising, but the potential for abuse is clear.


Songwriting income is itself a frequent catalyst for disputes. Few novice musicians appreciate that, as a rule of thumb, songwriters can earn six times as much as their non-writing associates.


The Spandau Ballet case concerned a claim for a share of songwriting income by singer Tony Hadley, drummer John Keeble and sax player Steve Norman. In this case, there was an oral agreement between the band members under which songwriter Gary Kemp shared some of his songwriting income with his colleagues until 1987, when the group split. The court held that Mr Kemp was entitled to revoke this agreement, as Messrs Hadley, Norman and Keeble had not, in fact, written any part of the band's songs.


Messrs Hadley, Norman and Keeble took the view that the royalty-sharing agreement simply reflected the true position, that Spandau Ballet's songwriting had been a collaborative process to which they had all contributed. They had come to expect a share of songwriting income. Its unexpected and unilateral withdrawal struck them as unjust, and a betrayal of the spirit of equality on which the band had been founded.


By contrast, Jake Burns, principal song writer of punk icons Stiff Little Fingers, voluntarily shared his songwriting income equally with his fellow performers and the band's manager. When Mr Burns withdrew the arrangement after 17 years, the others readily accepted his decision. They had never interpreted Mr Burns's gesture as anything other than an act of altruism designed to maintain harmony within the group. In particular, they accepted that he was the group's sole songwriter.


Similarly, Mike Joyce accepted that Morrissey and Johnny Marr were entitled to all the Smiths' songwriting royalties. But he was aggrieved that he and the band's bass player, Andy Rourke, were each paid only 10% of the band's other income, including record royalties, an arrangement to which they had never consented. The court held that, in the absence of any written agreement between the band members, the band was a partnership and that, apart from songwriting income, all earnings should be divided equally.


A similar sense of thwarted recognition lay behind Aston 'Familyman' Barrett's claim against the Marley estate, estimated to be worth at least $60 million (£33 million). Though formally credited as a writer on only a few of the Wailers' hits, and described by Mr Marley's widow, Rita, as 'just session musicians', Familyman took the view that he and his late brother Carlton, the Wailers' drummer, were an integral and essential part of the Wailers' sound. Indeed, the Wailers had laboured for nearly a decade without much success before the Barretts joined, following which the band enjoyed enormous critical and popular acclaim.


In his recent action, Familyman claimed a share of the Wailers' recording income, alleging that he and Carlton were parties to the 1974 recording agreement between Bob Marley and Island Records. His claim failed principally because in 1994 he had settled two earlier actions against the Marley estate. Under the settlement he accepted a lump sum payment of $500,000 in lieu of future record royalties. The court held that this settlement precluded Familyman's present claim in contract, even though that claim had not been raised in the earlier actions.


Despite appearances to the contrary, performer disputes are not really about money. They are, more fundamentally, about who takes credit for a band's success. The difficulty about according credit is that it has a monetary implication; if you share the credit, you have to share the income. And of course, no one embarks on costly litigation without the prospect of some financial return.


But the sense of grievance that underlies performer disputes can be understood only by appreciating the extent to which creators identify personally with their creations. Creators are not indulging in hyperbole when they liken their songs and recordings to their children. To deny a creator recognition is to deny his identity.


The common feature of all these disagreements between musicians is inequality. But inequality alone is an insufficient condition for a band's money squabbles ending up in court. Musicians generally recognise that some band members, notably the songwriters, contribute more than others, so rightly expect to earn more.


The crucial trigger for litigation is not simple inequality, but injustice, or at least the perception of unfairness. This impression depends to a great extent on performers' expectations. One of the legal adviser's key functions is to manage each band member's expectations openly and effectively, so that they stay in harmony with those of their colleagues, and in touch with reality.


Solicitor and barrister Nigel Parker is director of Phonographic Performance, the UK collecting society for record companies and performers, and author of the book Music Business: Infrastructure, Practice and Law