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Spinal Tap creators amend their Vivendi litigation, add Universal Music as a defendant

By | Published on Friday 20 October 2017

This Is Spinal Tap

The four creators of ‘This Is Spinal Tap’ have filed amendments to their ongoing litigation against Universal Music owner Vivendi. The new filings make new and more specific allegations against the French entertainment conglomerate, while also adding Universal Music itself as a co-defendant.

As previously reported, the lawsuit being pursued by Harry Shearer, Christopher Guest, Michael McKean and Rob Reiner is mainly aimed at Vivendi’s movie company StudioCanal, which – through various acquisitions – now controls the rights in ‘This Is Spinal Tap’. Though, as it happens, Universal Music controls the rights in the accompanying soundtrack, hence its involvement in the case.

The judge overseeing the legal battle recently told Shearer, McKean and Reiner that they couldn’t sue Vivendi via their individual companies, but instead need to sue in their own right, as Guest already had. Judge Dolly Gee also said that the four men needed to be more specific in regard to their allegations of fraud against the entertainment firm.

To that end the new legal filing has more specifics. In a statement, legal reps for the four men said last night: “The amended complaint details the fraud by concealment and misrepresentation conducted by Vivendi and its agent Ron Halpern and others. The co-creators contend there was longstanding and deliberate concealment by Vivendi of material facts regarding the actual gross receipts of the film, soundtrack, music and merchandise sales, plus expenses and the profits owed to them”.

The lawyers go on: “Vivendi, via its subsidiary Canal, has repeatedly refused to deliver numerous years’ accounting statements, contrary to its contractual obligations – in particular, statements relating to years in which substantial exploitation occurred and, as a result, revenues were significantly enhanced. By way of just one example, Vivendi’s concealment included the omission of a $1.6 million payment by MGM to Vivendi in 2004, which represented a settlement in respect of VHS and DVD revenues originally underreported by MGM”.

They continue: “Further compounding this fraud, improper expense deductions were made in Vivendi’s accounting to the creators, allegedly representing print, advertising and publicity expenses (undocumented) totalling over $3.3 million and a further $1 million in freight and other direct costs, more than half of which extraordinarily appears to fall some 20 years after the film’s release. Vivendi has also recently charged over $460k in ‘interest’ on production advances for a film released in 1984 and $165k in ‘litigation expenses’ to the creators’ account. Vivendi clearly has no intention of honouring its obligations to account honestly, or to fairly compensate the Spinal Tap creators for their work”.

The new legal filing also expands on the copyright reversion element of the case. The four men now want “a declaratory judgment over the creators’ inalienable right to reclaim their copyright in the film, screenplay, musical compositions, sound recording and characters relating to the band”.

This relates to the right under US copyright law that says creators can terminate any previous assignment of their copyrights to a corporate entity after 35 years. Although the reversion right originates in 1970s copyright law, it has only really recently come properly into effect, and as a result there remains debate around the reach and workings of the right. Which is ambiguity Vivendi is seeking to exploit in this dispute by claiming the reversion right should not apply in the case of all things ‘Spinal Tap’.

Commenting on the new legal filing, Shearer – who originally initiated the legal battle with Vivendi – commented: “The scale and persistence of fraudulent misrepresentation by Vivendi and its agents to us is breathtaking in its audacity. We are slowly unpeeling an onion that’s beginning to look rotten to its core. One just has to wonder how these defendants are treating other filmmakers and musicians”.

Referencing the reversion right point, he added: “The thinking behind the statutory right to terminate a copyright grant after 35 years was to protect creators from exactly this type of corporate greed and mismanagement”.