Many years ago, in the now dimming mists of my childhood, I was dispatched by my parents (for reasons which will perhaps one day be the subject of another article) into the tender care of a residential institution for the education of the young men deep in the South West of England. By the Autumn of 1978, having survived for several years, I had risen to the lofty level of the Lower Fifth Form (year 10 in ‘modern money’).
It was frequently impossible (due to rain and/or darkness) to go outside during any spare time we might have and so there was an indoor area set aside for this purpose. This area was divided into three sections:
- A ‘games room’ (which included a television on which we were allowed to watch one programme a week – ‘Top of the Pops’);
- A ‘quiet room’ (in the unlikely event that we wanted to study in our spare time); and
- The Upper Fifth Common Room (a room set aside for the use of members of the Upper Fifth Form (year 11!)).
Anyway, as I have said, it was the Autumn of 1978 and punk rock – having weaved its way slowly down from the Capital – was about to arrive in Somerset.
Every afternoon the members of the Upper Fifth would barricade the door to the Upper Fifth Common Room, put the Sex Pistols on the record player at full volume and leap around the room, smashing up the furniture. The Sixth Formers (year 12!), fans of Yes, Genesis and Deep Purple to a man, who (as in any self-respecting residential institution) were charged with maintaining ‘internal discipline’ (by whatever means necessary) would bang on the door of the Common Room and demand that the Upper Fifths ‘turn off that horrible racket.’
I, of course, wanted to be in the Common Room with the Upper Fifths. I dreamed of being Steve Jones wearing leather trousers and a fish-net shirt, crashing out the chords of ‘Anarchy in the UK’ on a Gibson Les Paul guitar.
The Sex Pistols were, for me and many others, a sort of musical ‘year zero’ – musical history beginning (and, to a certain extent ending) with the release of the album ‘Never Mind the Bollocks.’ We dismissed as hair brained conspiracy theories, suggestions from some of the younger teachers that punk rock was, in fact, a fake movement cooked up by the big record labels to take back control of record production from the super-groups (who were, by now, making their own records) and vehemently denied any suggestion that the Sex Pistols sounded quite like other, earlier groups (the Small Faces, the New York Dolls etc etc).
Certainty is one of the many blessings of youth….
Much time has passed and my taste in music and clothes (but not guitars) has, to some extent, evolved. Imagine my surprise therefore to see the names of Messrs Jones, Lydon (the real name of ‘Johnny Rotten’) and Cook (i.e. the members of the Sex Pistols) in the dusty volumes of the Law Reports (Jones v Lydon (No1)  EWHC 2321 (Ch)). This, I said to myself, I will have to read…
As the judge (Sir Anthony Mann) comments, “Relationships between band members have always been strained.” In fact, the band officially dissolved in January 1978 – several months before my ‘musical epiphany’ referred to above (in those days news travelled slowly to the South West) but, as those of you familiar with the Commercial Law will know, the related Intellectual Property Rights lived on….
Sure as eggs is eggs, ‘Sex Pistols nostalgia’ took hold in the 1990s and early 2000s and the band (in various configurations) undertook several ‘comeback tours’ (absent, of course, Simon Ritchie/Simon Beverley dec. aka. ‘Sid Vicious’). (Whether they actually had any serious intention to ‘come back’ is open to question.)
At the same time various different group members (and sub-groups of group members) began assigning or licensing their various rights to different organisations, sometimes dealing with different regions differently, creating a situation which the judge politely described as ‘fragmented.’ (One would expect no less from the members of a band continuously calling for anarchy.)
In or around 1996 John Lydon (aka the band’s singer and front-man ‘Johnny Rotten’) wished to sell his share of any North American publishing rights to BMG (a North American publishing group). This led to around two years of detailed negotiation which ended, in 1998, with the signature of a Band Member Agreement (“BMA”) by all parties.
The BMA (the full text of which is set out in the judgment) was an agreement between ‘the Writers’ (i.e. the various members of the group) in relation to ‘the Compositions’ (i.e. their musical works [sic.]) providing for a mechanism of notification to all of any proposed licence or permission for use of the Compositions (‘Licence’) but also providing that, subject to this notice procedure being complied with, decisions in relation to the allowing of any Licence could be made on a majority voting basis.
In 2016/2017 Steve Jones (guitarist – see above) published a book, “Lonely Boy,” describing his experiences in the band. In 2018 an American television company took an option to produce a series based on the book and in 2020 the noted film producer, Danny Boyle, was engaged to produce the series.
The series, in which the band members were to be portrayed by actors, required a ‘synch licence.’ This is the licence required when v,deo footage is produced containing music the copyright in which belongs to one person but where another person is portrayed as singing (or playing) that music (e.g. on a fairly typical YouTube video).
For this reason, in January 2021, Anita Camarata, agent for Steve Jones and Paul Cook (drummer), approached John “Rambo” Stevens (agent for John Lydon/Johnny Rotten) to ask for confirmation of Mr Lydon’s consent to the Licence. True to character, Mr Lydon refused.
He cited various actions which he felt amounted to disrespect. He also alleged that the project had been deliberately concealed from him until the last minute, when it was too late for him to have input.
Having obtained from the other band members (Glen Matlock and the Artistic Estate of Simon Beverley) the response that they were in favour of the project and the various other parties involved (i.e. the holders of many of the intellectual property rights – see above) having, effectively, confirmed that they would have no objection as long as Mr Lydon’s consent could be obtained, Jones and Cook issued the claim referred to above (Jones v Lydon (No1)  EWHC 2321 (Ch)).
In the proceedings Jones and Cook sought:
- Confirmation that the BMA (providing for majority decisions in relation to Licences) was effective;
- A declaration that it was either already a term of the BMA correctly constructed that each band member was to take such actions and sign such documents and agreements as were required to bring into effect any decision reached under the BMA or that there was an implied term to this effect; and, hence (following on from the declaration)
- An Order requiring Mr Lydon to sign such documents and agreements as were required to allow the project to go ahead.
Counsel for Mr Lydon argued:
- That the BMA did not, on true construction, require Mr Lydon to comply with any majority decision; and that, in any event
- The conduct of the band since the date of the BMA in relation to intellectual property rights was such that the other group members were now estopped from enforcing the BMA against Mr Lydon.
In a ‘speedy’ trial (taking place over seven days in the period 15th to 27th July 2021) the judge (Sir Anthony Mann) heard evidence from a string of witnesses:
- Steve Jones (who gave evidence by video link from California);
- Anita Camarata
- Paul Cook
- Glen Matlock (the band’s original bassist – replaced by Sid Vicious/Simon Beverley)
- Peter Button (solicitor and Trustee of Simon Beverley’s Artistic Estate)
At the end Sir Anthony found that there had been no concealment. He rejected the notion (or even the possibility) of a ‘combined estoppel’ and then ran through the various factual scenarios argued to amount to estoppel. He found that none of them demonstrated the assumptions or representations required to give rise to an estoppel (in any form).
For good measure (although this was not strictly necessary) he also ran through the facts alleged to show reliance, detriment and unconscionability. He found that these were not shown.
He held that Messrs Jones and Cook were entitled to invoke the BMA against Mr Lydon in this instance and that, whilst a term providing for a requirement to sign consequential documents and take consequential actions could not be made out in the BMA itself, such a term could be established as an implied term. Jones and Cook were therefore entitled to the declaration and further Orders which they sought.
I therefore await release of the TV series in April 2022 and will, when watching, barricade myself in the lounge and turn the volume up loud (very loud). There is nothing quite like a bit of nostalgia.
If you would like to get in contact with Martin Reynolds or, Barrett and Co’s Company and Commercial Property Team, you can contact us on 01189 958 9711 or email [email protected] and he will be happy to assist with your enquiry.