Pistols at dawn: Johnny Rotten loses battle with former bandmates over song use

Background

The claim brought by Mr Cook and Mr Jones sought clarification on the construction, effect and enforceability of a Band Member Agreement (“BMA”) entered into in 1998 by the parties, including former Sex Pistols bassist Glen Matlock and Peter Button, the trustee of the Artistic Estate of former bassist Sid Vicious.

The BMA sets out how the former band members are to deal with decisions about the future exploitation of the Sex Pistols’ music, including a provision that purported to entitle the majority of the band members to bind the minority in decisions about exploitation.  The provision in question had never been used, until Mr Lydon attempted to veto the use of the Sex Pistols’ music in a new television drama about the Sex Pistols directed by Danny Boyle, based on Mr Jones’ memoir.

Accordingly, Mr Cook and Mr Jones sought declaratory and injunctive relief to establish and enforce what they considered to be Mr Lydon’s obligations under the BMA, namely to grant consent to license the band’s music once the majority had approved the decision.  They were supported by Mr Matlock and Mr Button in their claim (despite both technically being defendants to the action), who both provided witness evidence for the claimants. 

Mr Lydon disagreed with the alleged construction of the BMA in so far as it compelled him to grant consent following a majority vote, and argued that, in any event, the claimants were estopped from bringing their claims because the BMA had never been relied on in the past, and each of the band members was instead always allowed a veto on any particular act of exploitation.

Decision

In his judgment, Sir Anthony Mann (formerly Mr Justice Mann) analysed a “long catalogue of incidents” between 2005 and 2014, which Mr Lydon claimed demonstrated “that the parties never relied on or asserted the BMA as entitling a majority to over-ride a minority in the grant of rights and that the parties operated on the shared assumption … that the majority had no such rights and that unanimity was required”. 

The numerous instances raised by Mr Lydon included:

• On 31 October 2006, the band had refused to grant a licence for the use of the Sex Pistols music for Ramsay’s Kitchen Nightmares because Mr Matlock refused his consent, though Mr Lydon was in favour of granting the licence.  The judge accepted that Mr Lydon was right in so far as this was an instance of the BMA not being applied against Mr Matlock.  However, the true reason was that Ms Anita Camarata, manager of the claimants and the Estate of Sid Vicious, did not take then project further was because the amount of money offered was so small and the project was “uninteresting”; she “wanted to preserve harmony and would not have invoked the BMA over £85”.  Mr Matlock declined to consent, but his evidence was that he did not invoke a formal veto.  Therefore, Sir Anthony held that this was not an example of a formal veto, but rather a “demonstration of a commercial decision as to whether to press an opportunity or not”.
• On 18 May 2012, permission that was sought for the use of a Sex Pistols song in a documentary called “Who shot Rock & Roll”, to which Mr Matlock originally objected before changing his mind.  Mr Lydon argued that this was a veto by Mr Matlock, and everyone recognised that he was entitled to do so.  This was yet another instance where Ms Camarata would seek general agreement and would not deploy the BMA if she did not get it; Mr Matlock “might have had what amounted to a veto in practical terms in that context, but it does not follow that the BMA was treated as non-operative”.
• In April 2012, Ms Camarata and Mr Stevens discussed the possible use of two Sex Pistols songs during the opening ceremony of the 2012 Olympic Games.  Mr Lydon was against the idea, but the other band members were “all very much in favour”.  On this occasion, the claimants actively considered invoking the BMA because they felt so strongly about the matter.  Ultimately, Ms Camarata encouraged Mr Lydon to speak to Danny Boyle, who was directing the ceremony, and Mr Lydon ultimately gave his consent.  Although Mr Lydon argued that this incident demonstrated the need for unanimity, Sir Anthony found on the facts that the band members had actively discussed the possibility of using the BMA in this instance, and therefore the common assumption basis of estoppel by convention could not apply.  Moreover, this incident did not demonstrate, in the judge’s view, an acquiescence in any belief by Mr Lydon that unanimity was required: “the other members of the band had no cause to believe that Mr Lydon had that assumption before this transaction, and this transaction does not alter that situation”.
• In 2018, the producers of The Crown requested the use of certain Sex Pistols material in an episode of the third series of the show.  Mr Stevens indicated that certain scenes, which he said did not happen, would need to be rewritten.  The producers elected to go down “another route”, given they appeared unwilling to re-write the scenes, and the opportunity was ultimately lost, which the other band members were very upset about.  Therefore, they discussed invoking the BMA to overrule Mr Lydon’s objections, but given the opportunity seemed to be lost, there was no scope for exercising it.  The judge held that this incident did nothing to support Mr Lydon’s case that the BMA no longer applied, nor that the other band members gave encouragement to such a belief by Mr Lydon; “in fact they held the contrary belief”.

Sir Anthony held that none of the incidents raised by Mr Lydon had the effect of demonstrating a shared assumption that the BMA had been abandoned; that individual band members had a veto; or that unanimity was required.  Mr Lydon therefore failed to establish any of the assumptions or representations he needed “to get an estoppel case off the ground”.  Mr Lydon also failed to prove the other elements required for estoppel, namely that he had relied upon any such representations or suffered detriment as a result of such reliance, nor that it was unconscionable for the claimants to resile from the assumptions or representations.

Sir Anthony then turned to Mr Lydon’s construction argument.  While the BMA stipulated that “approval by a majority of the [band members] … shall constitute approval of the License”, it was silent as to whether such a majority vote would compel the minority to grant their consent to entering into the relevant agreements for exploitation, in this case sync licences. 

Although the judge considered that such an obligation did not arise as a matter of construction, he was satisfied that it was an implied term of the agreement.  Such an implied term was, in his view, “reasonable and equitable”, as the minority voters should not be able to frustrate the will of the majority, and it was necessary to give business efficacy to the contract, as the contract would be “ineffective without the term”. 

According to media reporting of the proceedings, Mr Lydon likened the BMA to “slave labour” in his witness evidence, a point which was specifically rebutted by Sir Anthony Mann in the conclusion of his judgment:

[The wording of the relief sought by the claimants] was put to some witnesses as being a demonstration that the claimants’ case involved effectively reducing Mr Lydon to some sort of servile state in which he had to do the bidding of an oppressive majority. I do not consider that it has such an effect. It is a declaration as to the effect of the BMA (in the light of the implied term which I have found to exist) and seems to me to be relatively straightforward.

Sir Anthony was critical too of Mr Lydon’s evidence, suggesting that Mr Lydon “was more capable of understanding some of the implications of legal matters than he sought to give the impression of in the witness box” and that he had “become fixated with the notion that the BMA cannot and should not apply, and that has coloured his recollection, narrative of events and the rest of his evidence”.  He described Mr Lydon’s evidence that he did not know the effect of the BMA to be “a convenient contrivance”,in circumstances where Mr Lydon had an English lawyer, a US attorney and his manager advising him, and therefore “even if he did not read it himself, it will have been explained to him and he will have understood its effects”.

Comment

The case highlights potential difficulties in relying on an estoppel argument, and the level of factual analysis involved, where the parties’ actions, representations and beliefs are scrutinised in detail.  Mr Lydon raised over a dozen examples (of varying weight) where, in his view, the band members had shifted to a system of vetoes and unanimity rather than majority rule.  Sir Anthony Mann dealt with each of these, even where they had been abandoned by Mr Lydon during the course of proceedings but found none of them to advance his case on estoppel.

Mr Lydon was able to illustrate in a number of instances that either Mr Lydon or Mr Matlock had been the sole objector, and the project in question did not go ahead.  However, in these cases Sir Anthony accepted Ms Camarata’s evidence that she had not sought to overrule Mr Lydon’s (or Mr Matlock’s) objections in the interests of preserving “consensuality” and group harmony, but this was not tantamount to an assumption or representation that the BMA had been abandoned.  Nor was it indicative that a veto system was in place, even though it effectively amounted to “a veto in practical terms”.  The BMA remained operative and the option to invoke it in order to overrule a sole objector (or minority of objectors) was preserved at all times, even if the claimants did not do so until the present case. 

This demonstrates the difficulties for defendants relying on an estoppel defence; Mr Lydon may have believed that the ‘majority rules’ provisions had been superseded, but he was not privy to the multiple conversations between other members of the band as to whether they should invoke the BMA.  Although Mr Lydon had become “fixated with the notion that the BMA cannot and should not apply”, and had been abandoned by the parties, clearly the other band members did not agree, and perhaps because of the already tense relationship, it does not appear to be a matter that was explicitly discussed.

The judge addressed that “relationships between band members have always been strained, even going back to the days when the band was performing” and Mr Jones accepted in his evidence that he did not like Mr Lydon, though acknowledging his centrality to the success of the Sex Pistols and expressing a desire to be fair to him.  The judge set out that Mr Lydon’s “difficult relationships with other members [of the Sex Pistols] … has persisted even through their comeback tours in the 1990s and 2002.  It persists today”.  However, in a joint statement issued following the judgment, Mr Jones and Mr Cook remained optimistic that the former bandmates could “move forward and hopefully work together in the future with better relations”, though perhaps Mr Lydon, so frequently in the minority regarding commercial decision making, might disagree.