Rosie Burbidge
Oct 4, 20212 min
Who has the power to control the use of the Sex Pistols IP rights? That was essentially the question decided by Sir Anthony Mann in Jones & Anor v Lydon & Ors, a decision of the High Court in August 2021.
Most of the former band members want to give permission for use of its music in a planned TV series directed by Danny Boyle, but John Lydon (Johnny Rotten) opposes that permission.
Two of the band members brought the action, seeking to enforce an eight-paragraph 1998 Band Member Agreement (BMA), which on its face allows a majority of the rights holders to bind the minority. (For those interested in media agreements, the Agreement is included as an appendix to the judgment.)
In a detailed judgment, the judge analysed more than 20 licensing events arising from the Agreement between 2005 and 2018 and concluded that the claimants were not estopped from relying on the majority voting provisions in the Agreement: “I find that Mr Lydon fails to establish any of the assumptions, representations and acquiescence he needs to establish to begin to get an estoppel case off the ground. Nor could there be any case of reliance on any such material.”
He also found that the BMA did not require Mr Lydon’s consent to the use of the Sex Pistols music and that the claimants were entitled to a declaration that he is obliged to comply with the majority wishes.
Why should a minority be able to frustrate the will of the majority when he has agreed to abide by it?, asked the judge, and answered: “It is necessary to give business efficacy to the contract. If it does not exist the process stops at the taking of the majority decision. No effect can be given to majority decision, which becomes writ in water. The contract is ineffective without the term.”
What does this mean?
The Sex Pistols are not the only band that has ended up disputing the exploitation of their music and other IP rights, after members have disagreed about commercial strategy or musical direction. And they won’t be the last.
This decision highlights the value of having a clear agreement which can be interpreted in court – leading to the resolution of disputes years, or even decades, in the future. This is particularly important when dealing with rights such as copyright and trade marks which can last past living memory.
To find out more about the issues raised in this case including trade mark disputes and filing contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - rosie.burbidge@gunnercooke.com
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