A recent case in the High Court highlighted the importance of putting in writing agreements between different members of a band governing their relationship. Such arrangements are desirable as a band’s musical works may generate income for many years after they have ceased making recordings or performing live or have disbanded.
Whilst the Sex Pistols’ case deals with written agreements between band members, the same principle applies to arrangements between other groups of individuals or companies who collaborate and create works for financial gain.
The case involved a dispute between the former band members of The Sex Pistols about a licence to use their music for a 6-part TV series entitled ‘Pistol’ to be produced by Disney and directed by Danny Boyle.
The mini-TV series was to be based on Steve Jones’s autobiography ‘Lonely Boy: Tales from a Sex Pistol’
. The soundtrack was to include the band’s music.
The other band members (namely Steve Jones and Paul Cook as well as the representatives of Sid Vicious’ estate and Glen Matlock) had given their permission but John Lydon objected.
Disney was unlikely to go ahead with the production if the Sex Pistol’s music couldn’t be used.
Steve Jones Paul Cook (as claimants) therefore applied to the High Court for “declaratory and injunctive relief…in order to establish and enforce what they say are [Mr.Lydon’s] obligations” under a Band Member Agreement entered into in 1998 (‘BMA’) which deals with decisions about the future exploitation of the band’s music and other rights. The Court heard that the BMA relating to the publishing of the band’s music provided that licensing could occur as long as a majority of the band members were in favour.
The case was heard by Mr. Justice Mann in High Court over seven days in July 2021. A full transcript of the judgment is available here: [https://www.bailii.org/ew/cases/EWHC/Ch/2021/2321.html
The members had been represented for a number of years by different managers. John Lydon’s manager was John ‘Rambo’ Stevens. Paul Cook and Steve Jones’s affairs were managed by Anita Camarata based in Los Angeles. The estate of Sid Vicious was represented by a solicitor, Peter Button.
Notwithstanding the terms of the BMA, John Lydon argued that because of the way the members of the band and their managers had dealt with previous requests for the grant of licences following the signature of the BMA, the parties had by their conduct effectively agreed that any licensing required the band members’ unanimous consent.
The action turned on “the construction, effect and enforceability of” the BMA.
One of the legal defences invoked by John Lydon is a legal doctrine called ‘estoppel’. For the purpose of this article it is not necessary to go into the details of the various forms of ‘estoppel’. What is important to note is that John Lydon and his legal team insisted that since the claimants’ manager, Anita Camarata, generally sought consent from all band members before agreeing any licensing deal, the express clause in the BMA had ceased to apply. For this reason, unanimity was required to grant a synchronisation licence to Disney to use The Sex Pistol’s music.
John Lydon’s legal team cited a number of occasions where John Lydon’s approval (or indeed other band member’s approval) was sought to underpin their argument that conduct of the parties had in fact changed the parties’ position so that the express terms of the BMA no longer applied and John Lydon’s approval was therefore required. The judge dealt with each example in turn and each time found that the conduct did not give rise to estoppel accepting principally the evidence of Anita Camarata that where possible she tried to achieve consensus amongst the band members before agreeing to grant licences. It was only where consensus was not possible to achieve that she would fall back on the terms of the BMA. In most examples reviewed by the judge, Ms Camarata did not think that the value of the deal was important enough to risk a falling-out of the band members by insisting on the express terms of the BMA.
The thrust of the judgment is that where there are no clear words that the terms of a written agreement are not applicable, it is to be assumed that the written terms are enforceable. That is particularly so where the agreement (as here) was fully negotiated and understood by the parties.
In this case, Mr Justice Mann dismissed all the evidence relied on by the legal representatives of John Lydon which sought to interpret the desire by Ms Camarata to achieve consensus amongst the band members as some kind of estoppel with the effect that the majority voting clause of the BMA was no longer enforceable.
At the time of writing, it is not known if John Lydon proposes to appeal the judgment. If you would like to talk to us about any issues raised in this article please contact David Gore Consultant David.firstname.lastname@example.org or call +44 20 3701 7395.
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