(US) CONTRACT – RIGHTS: Spinal Tap rights case: setback for creators

A US District Judge in California has, on 28 September, dealt a blow to a claim brought by the creators of cult film This Is Spinal Tap against rights-owners Vivendi, by dismissing companies they owned from the lawsuit, as well as a claim of fraud.

Harry Shearer, Rob Reiner, Michael McKean and Christopher Guest co-created and starred in the 1984 mockumentary about a past its sell-by-date British hard rock band engaged in a disastrous US tour. Although it had only limited success in cinemas, the film became a cult classic on video and retains a devoted following to this day. The fictitious songs played by the band such as Sex Farm and Big Bottom have been popular in their own right, and the expression ‘turn it up to 11’ has passed into wider culture.

Harry Shearer, now best-known for his work on The Simpsons as the voice of the characters Montgomery Burns, Waylon Smithers, Principal Skinner, Ned Flanders, and dozens of others, decided to look into the fate of the film’s rights and its associated revenues.

When he discovered that his and his creative partners’ share of total worldwide merchandising income from 1984 to 2006 was $81, and the total income from soundtrack sales from 1989 to 2006 was $98, Shearer launched a claim against Vivendi SA alleging that the film “has generated tens of millions of dollars in revenue in the thirty years since its original theatrical release,” and that Vivendi “fraudulently underreported the revenues owed” to the creators.

The September ruling saw the Judge decide that the companies who were claimants in the action as third party beneficiaries did not have standing to sue Vivendi. A personal claim brought by Christopher Guest, rather than by a company on his behalf, is allowed to continue, however. And the door remains open to the other claimants now being added as parties in their own names.
Similarly, while the allegations of fraud were held not to be based on sufficient facts, the claimants have the right to amend their claim to add further information and the Claimants’ lawyers say that they will add “further facts to highlight Vivendi’s history of fraud in this case”.

The claim continues and promises to offer insights into the accounting practices which surround successful film and television creations. Harry Shearer commented that “England’s loudest band will be heard.”