Spinal Tap Goes To 11 As Co-Creator Sues Vivendi for $125,000,000October 19, 2016

It is nearly impossible to be backstage at a concert and not hear at least one quote from, or a reference to, the mockumentary This Is Spinal Tap. The film, first released in 1984, has gone on to be considered one of the most popular and successful films of all time. It has been included on numerous “best ever”lists and in 2002 the National Film Registry of the Library of Congress designated This Is Spinal Tap as a culturally, historically, or aesthetically significant film. The film follows a fictional band, Spinal Tap, as they navigate the trials and tribulations of the music industry. The band finds themselves encountering internal band conflicts, conflicts between the band and their record label, getting lost inside music venues, stage prop issues, drummers that spontaneously combust, and a multitude of other obstacles. The film addresses these situations comedically but the level of absurdity that the film takes these situations to is often all too real for many artists, which may be one significant reason for the film’s lasting success and relevance 30 plus years since it was first released.  

In another negative turn for the band, Harry Shearer (who co-created the film, co-wrote the soundtrack, and starred as Spinal Tap’s bassist, Derek Smalls), through his company Century of Progress Productions, filed a lawsuit seeking at least $125,000,000 in damages, against Vivendi (and its subsidiaries Canal Plus, Studio Canal, Studio Canal Image and Universal Music Group). The lawsuit, filed October 17, 2016 in the Central District Court of California, alleges (1) Breach of Contract, (2) Breach of the Implied Covenant of Good Faith and Fair Dealing, (3) Fraud, (4) Accounting, and (5) Declaratory Relief Regarding Trademarks.

In the Complaint, Shearer alleges that sales from the soundtrack of the film, paid to the four creators of the film between 1989 and 2006, totaled $98. Additionally, Shearer alleges that the four creators’ share of total worldwide merchandise income, between 1984 and 2006, was $81. Further, Shearer alleges that Vivendi has failed to provide accounting statements at all for the past two years and that Vivendi has fraudulently failed to remit accounting statements during specific time periods and account for various revenues including settlements in the millions of dollars.  

Shearer also claims that Vivendi has failed to enforce and collect revenue generated from numerous Spinal Tap trademarks, citing Vivendi’s abandonment of those registrations in 2011 and 2012, all the while attempting to prevent Shearer from performing or selling merchandise in association with the marks. Shearer has since filed applications for federal trademark registrations of the marks and has asked the Court for a declaratory judgment confirming that Shearer’s use of the marks does not infringe any abandoned trademark rights of Vivendi’s.

This Is Spinal Tap was produced on a budget of $2.25 million yet, according to the complaint, the music and merchandise that is has spawned has earned tens of millions of dollars in revenue. According to Shearer the original agreement for production, financing, and distribution of the film ensured profit participation payments at the rate of 40% of net receipts, to the creators of the film, based on all sources of revenue, including merchandise and music.

Shearer views the lawsuit as a “simple issue of artists’ rights”and goes on to state “I am just one person seeking redress for blatant injustice, but I hope this lawsuit will, in its own way, help set a new precedent for faithful and transparent accounting practices, and fair artistic compensation, industry-wide.‚¬

This lawsuit will be a very interesting one to watch play out but in the meantime you can visit www.fairnessrocks.com to read the complaint. The website, created by Shearer, also provides significant additional information on the key facts, timeline, and history of This Is Spinal Tap.

Brandon W. Clark is the Chair of the Copyright And Entertainment Law Practice Group at McKee, Voorhees & Sease, PLC. For additional information please visit www.ipmvs.com or contact Brandon directly via email at brandon.clark@ipmvs.com.