Official Media Releases

• “This is Spinal Tap” Litigation Accelerates Towards Trial - 03.12.2019
  French Version

  “This is Spinal Tap” Litigation Accelerates Towards Trial

  Creators Turbocharge Battle With France’s StudioCanal Following Failed Mediation
  
  London Dec. 3rd, 2019 - Harry Shearer, Christopher Guest, Michael McKean and Rob Reiner, the four co-creators of the iconic 1984 mockumentary film This is Spinal Tap (TIST), have set the stage for their trial with StudioCanal in Los Angeles, in the coming months.
  
  According to the plaintiffs’ complaint, Vivendi, through its agent StudioCanal, wilfully manipulated certain accounting data, failed to protect the rights entrusted to it and ignored contractually-obligated accounting and reporting processes - all of which served to deny Shearer, and his fellow co-creators, their rightful stake in the production’s profits. The action seeks hundreds of millions of dollars in compensatory and punitive damages, and a declaration that the co-creators own all copyright and trademark interests in the film property.
  
  The four creators successfully overcame Vivendi’s use of procedural methods in an attempt to dismiss and delay the case. After a year of mediation and informal exchange of information, the co-creators became frustrated by StudioCanal’s continued delay and failure to acknowledge the co-creators’ rights and their entitlement to past-due profits. StudioCanal’s attitude demonstrates a fundamental failure to appreciate the duties expected of a film rights owner. StudioCanal’s tactics have only served to harden the creators’ determination to prevail.
  
  The four are also warning other artists in profit-share agreements with rights-owners of the battles they face in receiving the fruits of their labours, despite a rightful entitlement.
  
  On Nov. 5th, the plaintiffs announced the settlement of their claims against Vivendi’s UMG regarding the film’s soundtrack recordings. The ongoing case against Vivendi’s StudioCanal is not affected by the UMG settlement.
  
  The litigation against StudioCanal and senior executive Ron Halpern, now shifts to a pre-trial discovery phase. This gives the plaintiffs the right to seek full access to StudioCanal’s internal books and records going back decades - since the creators first offered up for exploitation the independent film they had created. This allows the four artists to confirm what they have long suspected: that the defendants have, for more than two decades, deliberately shielded their corporate failings and accounting sleight of hand, and withheld accurate information relating to the revenues and profits generated by the film. The French company stood idly by while others made a killing from sales of merchandise inspired by the film and the much-beloved, faux heavy metal band it depicts.
  
  “The past year has felt like being stuck in limbo. We’re now back and unleashed, ready to burrow deep into StudioCanal’s ledgers to see what commercial secrets and corporate failings they have concealed,” said Harry Shearer, TIST co-creator and band bassist. “Their failed motions to dismiss, delay and obfuscate won’t help the studio now we are able to dig up what they have been hiding all these years. We get to depose key figures, including top executives of StudioCanal and Vivendi, such as Mr. Ron Halpern. They reported that we were entitled to $81 between the four of us, for 35 years of merchandise sales. Even with the limited information we now have, it is clear that StudioCanal shielded millions of dollars in revenues from us and manipulated the accountings in their favor.”
  
  “It’s been revelatory. We’ve been woefully underestimated by Studio Canal,” said Christopher Guest, who played guitarist Nigel Tufnel. “They simply refused to acknowledge us or our concerns. In discussions over the recordings UMG “got it” and throughout showed respect for talent, for intellectual property and the creative process. UMG’s approach eventually brought about an amiable and equitable solution to our music claims. StudioCanal, however, has been dismissive to the point of contemptuous.”
  
  “The stay in proceedings is now over,” declared lead litigator Stanton “Larry” Stein. “We move with determination to the next phase, in which we will seek comprehensive discovery of StudioCanal’s accounting procedures and licensing transactions. When my clients filed this case three years ago, they did so seeking equity, fair treatment and fealty to the contractual arrangement between the film’s creators and the studio. What’s extraordinary is the strength of the French studio’s grip on the film’s rights, having failed to properly guard, or exploit them over the past 35 years. We look forward to entering the discovery phase and bringing this case to trial. The creative industry in Hollywood will be closely watching this litigation as we go onwards to trial.”
  
  “This isn’t just about the four of us – it never has been,” said co-creator and TIST Director Rob Reiner. “The film was made on the thinnest of budgets. And so many creative people worked hard contributing their talents to a film that has stood the test of time. That’s why we took on this fight. Not just for us, but for all hardworking artists who should get their fair share from their creative efforts.”
  
  “After all the delays we are closing in,” said Michael McKean, lead singer and guitarist David St Hubbins in TIST. “StudioCanal has had three years to take our claims seriously – yet focused instead on trying to get rid of us. Now that they have failed to swat us away procedurally, we are about to expose their other legions of failings. Year after year, brand pirates have been left to run amok, as recently as last month taunting us via social media, while flooding the market with unauthorized Spinal Tap t-shirts and other products. StudioCanal had a duty to properly exploit film and image rights and collect revenues. They haven’t, so we will. It is time to return this beloved film to its rightful owners.”

• Shearer, Guest, McKean & Reiner and UMG Settle Dispute - 05.11.2019

  Shearer, Guest, McKean & Reiner and UMG Settle Dispute

  London: Harry Shearer, Christopher Guest, Michael McKean and Rob Reiner, the creators of the iconic mockumentary film This is Spinal Tap, have resolved their dispute with Universal Music Group (UMG) regarding the film's soundtrack recordings.
  
  Under the agreement, Spinal Tap’s recordings will continue to be distributed through UMG and eventually the rights will be given to the creators. The parties look forward to making these beloved recordings available to existing and new Spinal Tap fans for years to come.
  
  Harry Shearer said:
  
  “I must admit, from the moment we first began mediation with them to now, I’ve been impressed by UMG’s respect for creatives and their distinctive desire to seek a prompt and equitable solution to the issues.”
  
  Christopher Guest said:
  
  "It was refreshing to be treated so constructively and with such courtesy by UMG and I'm pleased we have been able to resolve this."

• Spinal Tap plaintiffs soundly defeat defendants’ motions to dismiss - 29.08.2018

  Spinal Tap plaintiffs soundly defeat defendants’ motions to dismiss

  Historic Litigation Moves Forward with Fraud and Copyright Termination Claims Intact; Co-creators Introduce New Legal Team to Carry Case Forward

   

  August 29, 2018: Harry Shearer, Christopher Guest, Michael McKean and Rob Reiner, the four co-creators of the revered band “Spinal Tap,” and the 1984 film “This is Spinal Tap,” (TIST), today celebrated the favorable ruling by U.S. District Court Judge Dolly M. Gee in their ongoing $400m lawsuit against French conglomerate Vivendi and its subsidiaries.

   

  Harry Shearer, commenting on behalf of his co-Plaintiffs, said:

   

  “We are pleased with the decision in our ongoing litigation involving the film ‘This is Spinal Tap,’ which allows all of our claims against Vivendi, StudioCanal and Ron Halpern, including the fraud claim, to proceed. We are also confident that we will adequately amend our claims against the defendant Universal Music, as specified by Judge Gee’s order, so we can move forward with those as well. The Court’s ruling makes clear that we can pursue damages both for breach of contract and fraud, including punitive damages, based on the defendants’ failure to properly account to us for our profits in connection with ‘This is Spinal Tap.’ It is equally important that we can pursue our right to recapture our copyright interests and other intellectual property rights in connection with the Spinal Tap film and music, so that we can control our own creative product and benefit from it, as we should have all along. We look forward to finally getting our day in court, at a trial, with the evidence that to date Vivendi has tried to hide from us.”

  Further, Spinal Tap creators Harry Shearer, Christopher Guest, Michael McKean and Rob Reiner announced that preeminent entertainment litigator Stanton “Larry” Stein and his team at Russ, August & Kabat, including Bennett Bigman and Irene Lee, have been engaged as new lead counsel in the creators’ ongoing litigation against Vivendi and its affiliated defendants over unpaid revenues, breach of contract, fraud, and ownership of intellectual property rights in the landmark “This is Spinal Tap” case.

   

  Harry Shearer, commenting also on behalf of his co-Plaintiffs, said:

   

  “We are confident that Larry Stein and his team are the right lawyers to lead our case to victory on the merits. I have known and worked with Larry for a long time. Larry is widely recognized as one of Hollywood’s top entertainment litigators and has a long history of successfully challenging self-dealing within giant media corporations such as Vivendi. Larry and his experienced team will help us through the next phase of this litigation to show that not only have we been deprived of fair compensation for our work, but that we are entitled to ownership and control over our film, music, and the Spinal Tap brand itself. I want to thank Peter Haviland and his team at Ballard Spahr for their great work in crafting our claims, and especially for preserving our important fraud claim that Vivendi has desperately tried, but failed, to have dismissed. We look forward to Larry and Peter working together to move this case into the discovery phase, where we can shine a bright light on Vivendi’s improper and fraudulent accounting practices.”

   

  Larry Stein added:

   

  “We welcome the opportunity to build on what Peter and his team have done and to get to the merits of what I am sure will be ground-breaking litigation in protecting valuable rights for not only these four talented individuals, but for all creative artists.”

   

  ENDS

   

  The Plaintiffs’ case is filed as: 2:16-cv07733.

  Further details and a copy of the Plaintiffs’ Opposition to the Defendants’ Motions can be found at www.fairnessrocks.com

• Plaintiffs' Consolidated Opposition to Motions - 01.02.2018

  Spinal Tap Plaintiffs File Opposition to Defendants’ Motion

  February 1, 2018: Counsel for the Plaintiffs has today filed a Consolidated Opposition to Defendants’ Motions to Dismiss in the US District Court in the Central District of California. This follows Defendants UMG Inc & UMG Recordings Inc filing a Motion to Dismiss on December 21, 2017. Vivendi, StudioCanal and Ron Halpern filed their second effort to dismiss the Complaint also on that date. A hearing of the Defendants’ Motions and the Plaintiffs’ Consolidated Opposition to these Motions is scheduled for March 16, 2018.

  Harry Shearer, commenting also on behalf of his co-Plaintiffs Christopher Guest, Michael McLean, Rob Reiner, said:

  “Vivendi has now withdrawn all of its challenges to the continuance of our Complaint, with one exception – that if we are right, we have ‘only’ suffered under a breach of contract and so are not entitled to punitive damages for conduct we allege is fraud. Vivendi bleats to the court that a fraud allegation stymies its effort to reach a reasonable resolution – belying the fact the company has not once, in 15 months, attempted to communicate constructively with us.

  “Backed into a corner by decades of irrefutable failures, Vivendi and its subsidiaries have resorted to legal gymnastics in an attempt to limit their liabilities. It would be comical if it weren’t so tragically inept.

  “In turn, Universal is trying to hoodwink the Court into believing that it has no contractual duties to us. This is despite it accepting UMG acquired the music recording rights and obligations from Embassy and that it remains responsible for collecting the sound recording revenues owed to us. Universal seems to want it both ways.

  “In today’s filing, we make a concise argument for why Vivendi and its cohorts must face both the fraud and breach of contract allegations they are so desperately trying to avoid. It’s time to face the music.”

  ENDS

  Plantiffs’ Consolidated Opposition to Motions – 01.02.2018

  The Plaintiffs’ case is filed as: 2:16-cv07733.

  The Motion hearing is set for 9.30am, March 16, 2018 in Courtroom 8c at US District Court, Central District of California, 350 West 1st St, Los Angeles before the Honorable Judge Dolly M Gee.

  Notes to Editors

  The plaintiffs’ filing directly addresses two primary assertions made by the defendants in the December Motions:

  (1) the plaintiffs allegations do not rise to the level of fraud because of the long-standing “economic loss rule,”

  (2) Universal Music Group (UMG) should not be party to this lawsuit, nor should it be liable for fraud.

  Today’s filing challenges these two errant themes head-on. For convenience, we excerpt key passages that concisely refute the defendants’ arguments (location within the filed document noted alongside each excerpt):

  1. The Economic Loss Rule Does Not Preclude Plaintiffs’ Fraud Claim Intentional Tort Exception

  “California courts have long recognized an exception to the economic loss rule for intentional torts” (Page 9, line 7)

  “…the fraud claim is based on Vivendi’s malicious, tortious conduct designed to defraud Plaintiffs. Specifically, Vivendi’s knowingly false statements, both through affirmative misrepresentations that they were providing accurate and reliable accountings to Plaintiffs, and through active concealment of accurate gross-receipts, expenses and net profits in each of the profit participation statements as well as of Vivendi’s improper self- dealing by sharing of revenues between different Vivendi subsidiaries, including the disproportionate allocation of costs and bundling of unsuccessful films in the Embassy catalogue. Vivendi and its subsidiaries StudioCanal and UMG breached this independent tort duty to not knowingly deceive or make affirmative false representations to Plaintiffs.” (Page 12, line 8)

  California Public Policy Strongly Favors the Recognition of an Independent Cause of Action for Intentional Fraud

  “The California Supreme Court has consistently held that the economic loss rule must not be applied mechanically.” (Page 12, line 21)

  “Allowing claims for intentional fraud, “discourages such practices in the future while encouraging a business climate free of fraud and deceptive practices.” (Page 14, line 3)

  The “Special Relationship” Exception

  “…the California Supreme Court held that the economic loss rule does not bar recovery in tort for foreseeable economic loss where a “special relationship” exists between
  the parties.” (Page 14, line 11)

  “Here, a “special relationship” plainly exists between Plaintiffs and Defendants in that Defendants had complete control over the publication, distribution, royalty collection and accounting, and intellectual property enforcement related to Spinal Tap and their intentional fraud in the course of that relationship breached an independent duty

  created by this special relationship. Specifically: (1) the Embassy agreement was made expressly for the benefit of Plaintiffs; (2) the harm to Plaintiffs from Defendants’ fraudulent accounting practices was plainly foreseeable; (3) there is no question that Plaintiffs have suffered injury; (4) Plaintiffs’ injuries have resulted directly from Defendants’ conduct; (5) Defendants’ anti-competitive accounting practices, active concealment and intentionally false representations are morally blameworthy; and (6) future harm to Plaintiffs and other artists can readily be avoided by enforcement of a rule that imposes a duty of due care and honesty in the performance of Defendants’ obligations to Plaintiffs.” (Page 15, line 1)

  2. UMG’s Motion to Dismiss Fails
  Plaintiffs Have Properly Alleged Their Breach of Contract and Accounting Claims against UMG.

  “Plaintiffs allege that UMG acquired all pertinent sound recording rights and obligations under the Embassy Agreement and that UMG is responsible for providing the revenues it collects, through Vivendi, to Plaintiffs. In its briefing, UMG admits that it is the successor- in-interest to Polygram Records, which indisputably was responsible under its own agreement with Embassy to collect and account for the music sound recording revenues due to Plaintiffs as set forth in the Embassy Agreement.“ (Page 18, line 8)

  UMG Is Liable for Fraud Because It Directed False Statements to Vivendi and Studiocanal Intending That Those False Statements Be Communicated to Plaintiffs

  “The Second Amended Complaint alleges Vivendi’s and UMG’s hidden, fraudulent accounting practices and repeated, knowingly false statements that the gross receipts, expenses and net profits identified therein — including music royalties — were “truthful and accurate.” UMG directed those representations to Plaintiffs through Vivendi, knowing that Vivendi, StudioCanal and their agents would repeat those false representations to Plaintiffs. These false statements were not made in isolation, but were part of a fraudulent scheme involving improper self-dealing between between UMG, Vivendi, and StudioCanal. These allegations are more than sufficient to state a claim for fraud against UMG, particularly where more expansive evidence of the fraud is in Vivendi, StudioCanal and UGM’s possession and control and can only be obtained through legally compelled discovery.” (Page 23, line 6)

  ##

  About The Film

  This is Spinal Tap – produced on a shoestring budget, has become a cult classic since its first theatrical run, in 1984. The film has garnered international praise and acclaim, having been included in “best ever” lists such as The New York Times Guide to the Best 1,000 Movies Ever Made; Entertainment Weekly’s 100 Greatest Movies of All Time where it appeared on the “Just Too Beloved to Ignore” list; and the 100 Greatest Movies of All Time list published by Total Film.

  The band, composed of Shearer, Guest and McKean, performing as their beloved stages personas (in the company of a rotating cast of hard-luck percussionists), has toured the world multiple times since the film’s release, and hundreds of thousands of Spinal Tap sound

  recordings have been sold over the ensuing decades. Full-length Spinal Tap albums are still available for hard-copy sale, download and streaming today.

• Amended Complaint Filed - 19.10.2017

  Spinal Tap Co-Creators File Amended Complaint in $400M Lawsuit

  • Adds Universal Music Group as co-Defendant

  • Inserts Shearer, Reiner & McLean as individual co-plaintiffs alongside Guest

  • Details Vivendi’s Fraud

  • Seeks Declaratory Judgment over copyright recapture and trademark rights

  19 October 2017: Harry Shearer, Christopher Guest, Michael McKean and Rob Reiner, the four co-creators of the revered band “Spinal Tap,” and 1984 ‘mockumentary’ film “This is Spinal Tap” (TIST), have today filed amendments to their ongoing $400m lawsuit, including adding Universal Music Group as a co-defendant.

  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.

  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 $1.6m payment by MGM to Vivendi in 2004, which represented a settlement in respect of VHS & DVD revenues originally underreported by MGM.

  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 $3.3m and a further $1m in freight and other direct costs, more than half of which extraordinarily appears to fall some 20 years after the film’s release (see Count III para 86 of Amended Complaint). 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 (see para 22). Vivendi clearly has no intention of honouring its obligations to account honestly, or to fairly compensate the Spinal Tap creators for their work.

  Today’s amended complaint also seeks 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, the 20 minute development film they created and in TIST, the film, – collectively the Spinal Tap Works. This would invalidate the French corporation’s attempt to countersue Shearer, as it has threatened to do, by falsely claiming that the four’s creative product constituted ‘works for hire’.

  There’s currently a wealth of purportedly Spinal Tap merchandise for sale online: from beer dispensers to bedlinen, clocks to prayer candles, none of which is licensed. Yet to date, Vivendi has selectively sought to enforce property rights against the original four creators – a clearly absurd position that had to be challenged.

  The lawsuit continues to seek a similar Judicial Declaration over the Trademark application made to the USTPO by Shearer’s loan out company on behalf of all four creators, given the abandonment by Vivendi of the various Spinal Tap trademarks.

  “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,” said Shearer.

  He adds: “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. Absurdly, Vivendi seems determined to allow anyone but the creators to be enriched by our works. It’s emerging that Vivendi has, over decades, utterly failed as guardian of the Spinal Tap brand – a truer case of life imitating our art would be hard to find.”

  ENDS

  Amended Complaint – filed 19.10.2017

  NOTES TO EDITORS

  Statutory Termination Rights & Notices to Terminate

  The U.S. Congress passed a revised version of the U.S. Copyright Act in 1976, which allowed for termination of copyright grants expressly to protect creative artists from abusive and exploitative contracts.

  The four co-creators of Spinal Tap originally filed their termination notices in October of 2016 in respect of certain creative products directly associated with This Spinal Tap.

  In its response to the creators’ litigation, Vivendi threatened a separate claim against Harry Shearer alone, asserting he has no termination rights on the grounds that the creative product was “work for hire.” In this way, the French corporation inexplicably sought to abuse a single creator of jointly created works by making nonsensical and baseless legal threats.

  By no stretch of the imagination does the “work for hire” doctrine apply in the case of the film, not least as the band, its music and its recognized characters all existed long before the motion picture was made. Yet, Vivendi continues to assert that it has a right to maintain control over all the elements of the film – even though the corporation has failed to enforce valuable rights and has abandoned trademarks that would, via merchandising licences, otherwise have benefitted both the creators and Vivendi itself for a very long period of time.

  The ability of creators to terminate a grant of rights in certain circumstances, after 35 years have elapsed, was created by a U.S. Congressional amendment to the US Copyright Act in the Act’s sweeping 1976 revision. Section 203 of USC Title 17 gives authors, whose works are protected under US law, the inalienable right to reclaim the rights in their works. The statute is very clear that an author’s right to recapture ownership of works is absolute: that is, both inalienable and “notwithstanding any agreement to the contrary.” Founded on the premise that it is in the best interests of the authors whom a copyright was originally meant to protect, Congress introduced this right of termination expressly to shield creators from the stark consequences of unremunerative, repeat transfers of rights in their works.

  Unsuspecting creators, when starting out in their careers, had commonly signed unfair deals with major studios and music companies, allowing the entertainment corporations to reap huge profits as works were re-released via new and evolving formats over the years, but leaving many artists out in the cold in regard to fair remuneration. This long-standing statute, which first kicked in, in early 2016, has since allowed a number of writers and artists to effectively take back control of their rights. In this way, the creative talent more fairly profits from the enduring popularity and long-term cultural viability of their work.

  In this case, the termination notices relate to grants effected by the four TIST co-creators in respect of pre-existing works, works that were conceived, created and distributed well before the making of the film. The four co-creators have notified all successors in the chain of title of their termination notices, including Vivendi.

  The Motion Picture

  This is Spinal Tap, produced on a shoestring budget, has become a cult classic since its first-of-many theatrical runs in 1984. The film has garnered international praise and adulation, having been included in “best ever” lists such as The New York Times Guide to the Best 1,000 Movies Ever Made; Entertainment Weekly’s 100 Greatest Movies of All Time — where it appeared on the “Just Too Beloved to Ignore” list — and the 100 Greatest Movies of All Time list, published by Total Film.

  The band, composed of Shearer, Guest and McKean, performing as their beloved stages personas (in the company of a rotating cast of hard-luck percussionists), has toured the world multiple times since the film’s release, and hundreds of thousands of Spinal Tap sound recordings have been sold over the ensuing decades. Full-length Spinal Tap albums are still available for hard-copy sale, download and streaming today. On occasion, their songs have been covered by other artists.

  Merchandise licensing – Trademarks

  The film and band, as a result of the co-creators’ endeavours, established unique characters, a screenplay, songs, sound recordings, a seminal short film, and the potential for thousands of licensed products – which the four co-creators are currently seeking to protect through an application to the US Trademark Office to reclaim control of the Spinal Tap brand.

  The $400m Complaint Timeline

  Guest, McKean and Reiner joined Shearer’s October 2016 filed complaint in February 2017, claiming breach of contract, fraud and anti-competitive business practices in respect of Vivendi’s management of rights in TIST and its associated intellectual properties. Their joint Complaint is labelled Case No. 2:16-cv-07733. The previously mentioned threat by Vivendi to counter-sue Shearer, in an effort to prevent him from terminating his grants of copyright, appeared in Vivendi’s Motion to Dismiss the plaintiffs’ Complaint.

   

• The ruling on Vivendi's Motion to dismiss - 29.09.2017

  Court Rules Spinal Tap Litigation Should Continue Unfettered – Vivendi’s Motion to Dismiss Rejected

  29 September 2017:  Last night, the U.S. District Court in California rejected the Motion by Vivendi to dismiss the $400m lawsuit brought by legendary band “Spinal Tap” co-creators, Harry Shearer, Christopher Guest, Michael McKean and Rob Reiner.

  The four co-creators, Harry Shearer, Christopher Guest, Michael McKean and Rob Reiner, and the members of their legal team, welcomed the long-awaited court decision.

  The Court concluded that the “Co-creators are intended Third Party Beneficiaries of the 1982 Agreement” [P8 Para 2].   However since the original filing was brought in the names of 3 of the 4 co-creators’ loan out companies, rather than by the co-creators individually, alongside Christopher Guest, the Court has granted Shearer, Reiner and McKean leave to amend to add themselves as co-plaintiffs going forward [P9 Para 3]. The principle behind the litigation therefore remains steadfast.

  Harry Shearer, commenting on the ruling said: “Vivendi thought we would be made to go away. Well, not today, not tomorrow, nor the next day. England’s loudest band will be heard. But today is a good day not just for us, but for all aggrieved creative artists.”

  “This ruling is an important victory,” said Peter Haviland, trial counsel for the four Spinal Tap co-creators. “It ratifies a critical contractual right for artists:  even in studio-drafted contracts containing a ‘No Third Party Beneficiary Clause,’ artists may be determined by a Court to be third party beneficiaries who have the right to sue for wrongdoing, notwithstanding such contractual clauses. The Court has invited us to amend our complaint to clarify the individual rights of each of the co-creators, and we will do so promptly.  We will also be adding further facts to highlight Vivendi’s history of fraud in this case, and to address equally important issues of copyright reversion and so-called ‘works for hire’.”

  Christopher Guest added: “We’re doing the right thing, and most importantly, we are setting a precedent for similarly aggrieved artists who can’t afford to do this themselves. We’re sending a message not just to Vivendi, but to the so-called Hollywood accounting cabal as a whole: treat creators from the outset with genuine fairness and respect.”

  ENDS

  Further details including Judge Dolly M Gee’s Motion to Dismiss Ruling (CV16-7733-DMG (ASx)) plus the full litigation timeline can be found at www.fairnessrocks.com.

   

  NOTES TO EDITORS

  The Motion Picture

  This is Spinal Tap (TIST), produced on a shoestring budget, has become a cult classic since its first-of-many theatrical runs in 1984. The film has garnered international praise and adulation, having been included in “best ever” lists such as The New York Times Guide to the Best 1,000 Movies Ever Made; Entertainment Weekly’s 100 Greatest Movies of All Time — where it appeared on the “Just Too Beloved to Ignore” list — and the 100 Greatest Movies of All Time list, published by Total Film.

  The band, composed of Shearer, Guest and McKean, performing as their beloved stages personas (in the company of a rotating cast of hard-luck percussionists), has toured the world multiple times since the film’s release, and hundreds of thousands of Spinal Tap sound recordings have been sold over the ensuing decades. Full-length Spinal Tap albums are still available for hard-copy sale, download and streaming today. On occasion, their songs have been covered by other artists.

  Merchandise licensing – Trademarks

  The film and band, as a result of the co-creators’ endeavours, established unique characters, a screenplay, songs, sound recordings, a seminal short film, and the potential for thousands of licensed products – which Shearer, on behalf of all four, is currently seeking to protect through his application to the US Trademark Office to reclaim the Spinal Tap brand.

  The $400m Complaint

  Guest, McKean and Reiner joined Shearer’s filed complaint on 9 February 2017, claiming breach of contract, fraud and anti-competitive business practices in respect of Vivendi’s management of rights in “This is Spinal Tap” and its associated intellectual properties. Shearer filed his initial Complaint in October 2016. Their joint Complaint continues before Judge Dolly M Gee in the U.S. District Court for the Central District of California, labelled Case No. 2:16-cv-07733.

  Vivendi filed its Motion to Dismiss on 28 February 2017. Attorneys for the plaintiffs filed their response to the Motion to Dismiss on 30 March 2017. Today’s ruling has been awaited since then.

• Plaintiffs' Filed Response to Vivendi Motion - 30.03.2017

  “Spinal Tap” Creators Answer Vivendi's Claim
  That Their Suit Be Thrown Out

  30 March 2017: Harry Shearer, Christopher Guest, Michael McKean and Rob Reiner, the co-creators of the revered band “Spinal Tap” and joint plaintiffs in the $400m Complaint against Vivendi, have answered, in Court pleadings filed March 29, Vivendi’s threat to sue Harry Shearer and its attempt to dismiss the creators’ claims. Unbowed by the Defendants’ intimidatory representations, the plaintiffs remain united and resolute in their determination to expose and challenge anti-competitive practices and fraudulent accounting in respect of their creations.

  The co-creators deride as “grossly inappropriate” Vivendi’s threat to sue one of the plaintiffs, Harry Shearer, for exercising his inalienable right to terminate his grant of copyrights under US statute. The plaintiffs point out that the other three co-creators/joint plaintiffs in fact followed Shearer’s footsteps by issuing similar copyright termination notices over the songs, film, screenplay, and sound recordings.

  Shearer commented: “Vivendi’s distracting and obfuscatory conduct is entirely in line with our experience of the Corporation to date – failing to provide participation statements; declaring piddling revenue share from exploitation over 33 years, particularly Tap music & merchandise; and neglecting or abandoning the protection of Tap trademarks worldwide. As a result, we have seen a deluge of unofficial Spinal Tap-branded apparel, dishware, pet accessories, and god knows what else. And perhaps the greatest irony? Learning that the only party against whom Vivendi threatens to enforce copyrights, is me!”

  Shearer continued: “That Vivendi suddenly appears concerned about certain exploitation opportunities would be laughable if it were not so disingenuous. The hypocrisy on display is unreal. On the one hand, Vivendi claims Spinal Tap and all its associated collateral have hardly made the thinnest of dimes. On the other, they hold the rights with the ferocity of a death grip, all the while refusing to enforce them, excepting the recent threat targeting me. Seemingly Vivendi is prepared to allow anyone but the creators to enjoy enrichment from these works.”

  Christopher Guest added: “It’s absurd that Vivendi now claims our creations were “works for hire” and that Harry’s termination (notwithstanding we have all given notices) places a “cloud over the movie and music copyrights” which “threatens Studio Canal’s ability to distribute Spinal Tap (sic) and to otherwise enjoy its lawful rights to the movie”. Vivendi is re-writing history and showing a complete lack of understanding of copyright law. The band, the characters, the distinctive logo and most of the songs performed both live and televised all existed long before any agreement to produce a motion picture.”

  ENDS

  Further details and a copy of the Plaintiffs’ Opposition to the Defendants’ Motion can be found at www.fairnessrocks.com .

  The Motion hearing is set for 9.30am, May 5, 2017 in Courtroom 8C at US District Court, Central District of California, 350 West 1st St, Los Angeles before the Honorable Judge Dolly M Gee.

  ##

  NOTES TO EDITORS

  Statutory Termination Rights
  The ability of creators to terminate a grant of rights in certain circumstances is vested in them as a result of the U.S. Copyright Act of 1976. Section 203 of USC Title 17 gives authors the inalienable right to reclaim certain rights in their works. Founded on the premise that it is the interests of authors that copyright was originally meant to protect, Congress introduced this right of termination expressly to protect authors from the consequence of unremunerated transfers of rights in their works. The statute is very clear that an author’s right to recapture ownership of works in specific circumstances is both inalienable and “notwithstanding any agreement to the contrary.
  This is Spinal Tap – produced on a shoestring budget, has become a cult classic since its first theatrical run, in 1984. The film has garnered international praise and acclaim, having been included in “best ever” lists such as The New York Times Guide to the Best 1,000 Movies Ever Made; Entertainment Weekly’s 100 Greatest Movies of All Time where it appeared on the “Just Too Beloved to Ignore” list; and the 100 Greatest Movies of All Time list published by Total Film.
  The band, composed of Shearer, Guest and McKean, performing as their beloved stages personas (in the company of a rotating cast of hard-luck percussionists), has toured the world multiple times since the film’s release, and hundreds of thousands of Spinal Tap sound recordings have been sold over the ensuing decades. Full-length Spinal Tap albums are still available for hard-copy sale, download and streaming today.

• Plaintiffs' response to Vivendi motion 01.03.2017

  Plaintiffs' response to Vivendi motion 01.03.2017

  “Vivendi’s motion to dismiss is a sadly predictable response. Their motion does not dispute that Vivendi has paid virtually nothing to Harry Shearer, Rob Reiner, Christopher Guest and Michael McKean for This Is Spinal Tap. Yet it asserts these co-creators have no legal right, or standing, to challenge this absurdity. We disagree. Shearer, Reiner, Guest and McKean formed the group Spinal Tap Productions (STP). There's no dispute that STP, also a plaintiff, has standing to proceed. Further the creators' claims to intellectual property rights to the film and its music – both trademark and copyright – cannot be dismissed through this legal standing challenge from Vivendi."

• Additional Plaintiffs Release 8.02.2017

  Guest, McKean and Reiner Join Shearer's This Is Spinal Tap Fraud Suit Against Vivendi

  8 February 2017, London: Christopher Guest, Michael McKean and Rob Reiner, co-creators of the cult-classic film This is Spinal Tap, have today formally joined fellow creator, Harry Shearer, as plaintiffs in his lawsuit against French conglomerate Vivendi S.A..

  Guest starred as the band Spinal Tap’s lead guitarist Nigel Tufnel; McKean as lead vocalist and rhythm guitarist David St Hubbins and Shearer as bassist Derek Smalls. Reiner directed the film and starred as its narrator.

  The original complaint, by Shearer’s service company Century of Progress Productions, [Case No. 2:16-cv-07733], was filed on 17 October 2016 in the Central District of California USA. The lawsuit alleges Vivendi S.A. engaged in anti-competitive and unfair business practices, as well as fraudulent accounting, directly related to its management of This Is Spinal Tap.

  With Guest, McKean and Reiner’s participation, the revised filed and served complaint now seeks US$400 (four hundred) million in compensatory and punitive damages from Vivendi, up from the US$125 million originally claimed.

  Commenting on the lawsuit, Guest said: “The deliberate obfuscation by Vivendi and its subsidiaries is an outrage. It is vital that such behavior is challenged in the strongest way possible.”

  Reiner adds: “Fair reward for artistic endeavor has long been raised by those on the wrong end of the equation. What makes this case so egregious is the prolonged and deliberate concealment of profit and the purposeful manipulation of revenue allocation between various Vivendi subsidiaries – to the detriment of the creative talent behind the band and film. Such anti-competitive practices need to be exposed. I am hoping this lawsuit goes to 11.”

  “This is Spinal Tap was the result of four very stubborn guys working very hard to create something new under the sun. The movie’s influence on the last three decades of film comedy is something we are very proud of. But the buck always stopped somewhere short of Rob, Harry, Chris and myself. It’s time for a reckoning. It’s only right.” commented McKean.

  Shearer welcomed his co-creators’ decision to join: “Their participation will help demonstrate the opaque and misleading conduct at the heart of this case. We’re even louder now.”

  The amended complaint, which also incorporates Spinal Tap Productions (owned in equal share by all for co-creators), as a joint plaintiff alongside the co-creators and their service companies, details Vivendi’s alleged manipulation of certain accounting data, while ignoring contractually obligated

  accounting and reporting processes, to deny the plaintiffs their rightful stake in the production’s profits.

  ENDS

  FOR A COPY OF THE AMENDED COMPLAINT CLICK HERE

  FOR PHOTOS OF ALL PLAINTIFFS CLICK HERE

  NOTES TO EDITORS

  In 1982, Reiner, Shearer, Guest, and McKean signed an agreement with Embassy Pictures, Inc. for the production, financing and distribution of This Is Spinal Tap. The agreement ensured profit participation payments, at the rate of 40 percent of net receipts, to the creators based on all sources of revenue, including merchandise and music.

  After two years of production, the film was released in 1984. It soon became a cult favourite, and its reputation as one of the 20th Century’s most enduring comedies has increased exponentially in the ensuing years. The film’s accolades include being named in the New York Times Guide to the Best 1,000 Greatest Movies Ever Made list, Total Film’s 100 Greatest Movies of All Time list, and achieving the coveted Number One spot on Time Out London’s 100 Best Comedy Movies list. In 2002, the film’s lasting appeal led the U.S. Library of Congress to designate it as a culturally, historically, or aesthetically significant film.

  The film’s ongoing critical success was likewise matched by its financial success. It was produced on a shoestring budget of $2.25 million. The complaint alleges that This Is Spinal Tap generated millions of dollars across various revenue streams for Vivendi, its subsidiary companies, and their licensees. The music and merchandise that the film and band have spawned, earned tens of millions of dollars in revenue through re-releases, album and singles sales, merchandise sales, and distribution of the film in various formats across the globe over the course of the last 32 years. However, these profits were not fairly shared with the four co-creators, cast, or crew.

  The French conglomerate claims that the four creators’ share of total worldwide merchandising income between 1984 and 2006 was a mere $81 dollars. Likewise, total income from soundtrack music sales between 1989 and 2006 was reported by Vivendi as only $98 dollars/

  Band & Movie Background

  Although This Is Spinal Tap was first released in 1984 in US and UK (in 2000 in France) the band “Spinal Tap” was actually created in the late 1970s. The band’s rock musician characters “Nigel Tufnel” and “David St. Hubbins” were created by Christopher Guest and Michael McKean with Harry Shearer creating bassist “Derek Smalls”. Spinal Tap’s comedic sole claim to fame was as “one of England’s loudest bands”.

  Phrasing from the film’s script has entered the general lexicon (“it goes to 11”). The film continues to be shown regularly on TV home viewing around the world, is available on multiple video formats and has been supported by several album/singles releases and band tours.

  Litigation Background

  Harry Shearer’s determination to highlight the principle of fair rights to creators led him to launch the original suit. He is unafraid to take on vested interests in the entertainment industry in his pursuit of equitable treatment between the industry and its talent. He is today joined by all of his co-creators of Spinal Tap the band, and the film.

  This lawsuit will determine several key matters in respect of the exploitation rights to This Is Spinal Tap, including breach of contract, fraud and fraudulent concealment, breach of an implied covenant of good faith and fair dealings and intellectual property rights. The lawsuit raises particular concerns over the anti-competitive effects of non-arms’ length transactions among Vivendi subsidiaries in managing This Is Spinal Tap. These issues are further outlined in the Complaint.

  Advisors

  Lead Litigator: Peter Haviland, Ballard Spahr (Los Angeles, CA.)

  Lead Counsel: Amanda Harcourt, Intellectual Property Consultant (UK)

• Harry Shearer Response to Vivendi Media Statement 02.12.2016

  Harry Shearer Response to Vivendi Media Statement

  "I am surprised to read that Vivendi is unaware of my legal Complaint, filed with the US court on 17 October, and of the global success of the film, This is Spinal Tap, whose rights it owns and whose recoupment it has allegedly been calculating over the past 30 years. Listed conglomerates have a duty to be aware of all litigation in which they are referenced, no matter from where in the world they emanate.Vivendi's reaction demonstrates a worrying myopia from a media giant concerned with IP rights ownership in a global industry. Mr Ron Halpern, Vivendi's executive with responsibility for exploiting the film, his US colleagues as well as Vivendi's own legal department in Paris, will be able to inform Vivendi's board of our myriad of correspondence over the years.

  "To help familiarise itself with the issues at stake, perhaps the corporation should also take a look at www.fairnessrocks.com where the filed Legal Complaint is published and downloadable to anyone. A copy of the 18 October media release (in French) can also be downloaded. An internet search will demonstrate to Vivendi shareholders the level of public support as evidenced by the hundreds of media reports from the US West and East Coast through London and Australia since filing. It's puzzling that Vivendi considers this support, for a film whose rights it sometimes asserts as its own, as "disproportionate".

  "I think fans will be shocked at the lack of interest shown by Vivendi towards this much-revered film. Perhaps this also explains the corporation's lackadaisical approach to intellectual property rights embodied in the Spinal Tap brand. With US$125m at stake, the US court is unlikely to be so cavalier."

  Background:

  Vivendi may be unaware of TIST's unique and long-term appeal, but its popularity has not been lost on expert critics, given its inclusion in "best ever" lists such as:

  · The New York Times Guide to the Best 1,000 Movies Ever Made;

  · Entertainment Weekly's 100 Greatest Movies of All Time where it appeared on the "Just Too Beloved to Ignore" list;

  · the 100 Greatest Movies of All Time list published by Total Film;

  · 2011 Time Out London named the film number one on its list of The 100 Best Comedy Movies.

  the National Film Registry of the Library of Congress in 2002 designated TIST as a culturally, historically, or aesthetically significant film.

  Unusually, the film has had two releases, several years appart. What's more, TIST still enjoys popularity on television, home video, and other media, including both a 25th Anniversary Blu-Ray DVD release in 2009 and a 30th Anniversary release in November 2014. Yet Vivendi now claims not to recognise the film's significance or popularity whilst booking over US$2.5m in undocumented "marketing and promotion expenses" years after its release. Similarly Vivendi's accounting has produced undocumented charges to "Freight and other Direct Costs" totalling over US $500,000, allegedly incurred almost twenty years after the film's initial release. It is difficult to see on what basis these charges are justified on an unpopular historic film of little import – if that is truly how Vivendi sees TIST.

  END

• Vivendi Response 01.12.2016

  Vivendi Response (To Date)

  Vivendi Response English

  Vivendi Response French

• Shearer Litigation Launch Release 17.10.2016
  French Version

  Harry Shearer, This Is Spinal Tap Co-Creator, Files Vivendi Fraud Suit

  Harry Shearer, renowned worldwide for his voicing of 23 characters on the long-running animated television series ‘The Simpsons’, has filed a comprehensive legal action in Los Angeles, California, USA.

  The lawsuit alleges the French conglomerate, Vivendi S.A., engaged in anti-competitive and unfair business practices, as well as fraudulent accounting, directly related to its management of the cult-classic film, This Is Spinal Tap.  Shearer co-created the film, co-wrote the soundtrack and starred as the Spinal Tap band’s bassist, Derek Smalls.

  According to the complaint, Vivendi and its agents, including StudioCanal and Universal Music Group, wilfully manipulated certain accounting data, while ignoring contractually-obligated accounting and reporting processes, to deny Shearer and his fellow co-creators their rightful stake in the production’s profits. The action seeks US$125,000,000 in compensatory and punitive damages.

  As a StudioCanal executive with personal responsibility for exploitation of the film and band, Ron Halpern is named as a co-defendant in the claim.  Halpern is based in Paris.

  “Almost 40 years ago, Christopher Guest, Michael McKean, Rob Reiner and I created the somewhat legendary band Spinal Tap,” said Shearer. “We thought there was something real and really funny about the characters, and between that inception and the theatrical release of This Is Spinal Tap in 1984, we poured ourselves into nurturing and perfecting the paean to rock loudness that has entertained so many people, even today. But despite the widespread success of the film and its music, we’ve fallen victim to the same sort of fuzzy and falsified entertainment industry accounting schemes that have bedevilled so many other creators. In this instance, the fraud and negligence were just too egregious to ignore.  Also, this time, it was personal.”

  In 1982, Reiner, Shearer, Guest, and McKean – signed an agreement with Embassy Pictures, Inc. for the production, financing and distribution of This Is Spinal Tap. The agreement ensured profit participation payments, at the rate of 40 percent of net receipts, to the creators based on all sources of revenue, including merchandise and music.

  After two years of production, the film was released in 1984. It soon became a cult favourite and its reputation as one of the 20^th Century’s most enduring comedies has increased exponentially in the ensuing years. The film’s accolades include being named in the New York Times Guide to the Best 1,000 Greatest Movies Ever Made list, Total Film’s 100 Greatest Movies of All Time list, and achieving the coveted Number One spot on Time Out London’s 100 Best Comedy Movies list. In 2002, the film’s lasting appeal led the US Library of Congress (the world’s largest cultural collection), to designate it as a culturally, historically or aesthetically significant film.

  The film’s ongoing critical success was likewise matched by its financial success. It was produced on a shoestring budget of US$2.25 million. Yet This Is Spinal Tap and the music and merchandise that it and the band have spawned, earned tens of millions of dollars in revenue, according to the complaint – through re-releases, album and singles sales, merchandise sales, and distribution of the film in various formats, across the globe over the course of the last 32 years.  However, these profits were not fairly shared with the four co-creators, cast or crew.

  When Vivendi acquired the rights to This Is Spinal Tap in 1989, through its subsidiary Canal, the lawsuit alleges it began a concerted and fraudulent campaign to hide, or grossly underreport, the film’s revenues in order to avoid its profit participation obligations. Vivendi’s financial reporting of income has been woefully inconsistent at best. Performance of its duties to the film’s creators dropped off entirely from 2014, the 30^th anniversary of the film’s initial theatrical release. In the past two years, Vivendi has altogether failed to produce an account of any Tap revenue, according to the complaint.

  The complaint alleges that This Is Spinal Tap has generated millions of dollars, across various revenue streams, for Vivendi, its subsidiary companies and their licensees. The French conglomerate asserts that the four creators’ share of total worldwide merchandising income between 1984 and 2006 was US$81 dollars. Between 1989 and 2006, total income from soundtrack music sales was reported by Vivendi as US$98 dollars, according to the complaint.

  “This is a simple issue of artists’ rights,” added Shearer. “It is stunning that after all this time, two cinema releases, all the various home video format releases, all the records and CDs, and all the band-themed merchandise still widely available worldwide, the only people who haven’t shared Spinal Tap’s success are those who formed the band and created the film in the first place.”

  “Vivendi and its subsidiaries – which own the rights to thousands and thousands of creative works – have, at least in our case, conducted blatantly unfair business practices,” Shearer continued. “But I wouldn’t be surprised if our example were the tip of the iceberg.  Though I’ve launched this lawsuit on my own, it is in reality a challenge to the company on behalf of all creators of popular films whose talent has not been fairly remunerated. 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.”

  ENDS

   

  NOTES TO EDITORS

   

  Band & Movie Background

  
  Although This Is Spinal Tap was first released in 1984 in US and UK (in 2000 in France) the band “Spinal Tap” was actually created in the late 1970s. The band’s rock musician characters “Nigel Tufnel” and “David St. Hubbins” were created by Christopher Guest and Michael McKean with Harry Shearer creating bassist “Derek Smalls”.  Spinal Tap’s comedic sole claim to fame was as “one of England’s loudest bands”.

  Phrasing from the film’s script has entered the general lexicon (“it goes to 11”) as exemplified by the Tesla car, whose audio system’s volume control goes to 11, as does that of the BBC’s iPlayer.

  The film continues to be shown regularly on TV home viewing around the world, is available on multiple video formats and has been supported by several album/ singles releases and band tours.  Yet, apparently, the film took 27 years to recoup.

   

  Litigation Background

  
  Mr Shearer has been frustrated by the difficulty in receiving a clear picture from the Vivendi group as to the revenues due from each of the various income streams – including merchandising and music sales – and by the Group’s accounting methods.  He is determined to highlight the principle of fair rights to creators.  He is unafraid to take on vested interests in the entertainment industry in his pursuit of equitable treatment between the industry and its talent.

  This lawsuit will determine several key matters in respect of the exploitation rights to This Is Spinal Tap, including breach of contract, fraud and fraudulent concealment, breach of an implied covenant of good faith and fair dealings and the lawfulness or otherwise of practices indulged in by a media player with market dominance.  The lawsuit raises particular concerns over the anti-competitive effects of non-arms’ length transactions among Vivendi subsidiaries in managing This Is Spinal Tap. These issues are further outlined in the Complaint.

  Mr Shearer has filed his litigation in the U.S. District Court for the Central District of California, through his trial counsel, Peter Haviland, Managing Partner of the Los Angeles office of U.S. firm Ballard Spahr.

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