Harry Shearer, who created spoof rock band Spinal Tap along with Michael McKean and Christopher Guest, filed a federal suit on Monday against Vivendi and StudioCanal for fraud and breach of contract, according to the Hollywood Reporter. Shearer, aka Spinal Tap’s bass player Derek Smalls, is seeking $125 million in punitive and compensatory damages for what he alleges are decades of underreported profits from This Is Spinal Tap, the critically-acclaimed 1984 mockumentary about the band. According to his complaint, StudioCanal and Vivendi were bound by the 1982 contract between the film’s creators and original producers Embassy Pictures when they acquired the rights to the film. That contract assigned 40 percent of net profits from the film and all related licensing, including music, to Spinal Tap Productions, a joint venture owned by Shearer, McKean, Guest, and This Is Spinal Tap director Rob Reiner. Given Spinal Tap’s decadeslong popularity, not only on film but in music, on t-shirts, and out-of-print Criterion Collection DVDs, this section of the lawsuit is damning on its face:
… according to Vivendi, the four creators’ share of total worldwide merchandising income between 1984 an 2006 was $81 (eighty-one) dollars. Between 1989 and 2006 total income from music sales was $98 (ninety-eight) dollars. Over the past two years, Vivendi has failed to provide accounting statements at all.
It’s hard to believe 40 percent of the profit generated by This Is Spinal Tap, which has had numerous home video and theatrical rereleases, added up to less than the cost of a complete set of Spinal Tap action figures, but that’s Hollywood accounting. Shearer’s suit specifically takes aim at straight-lining, in which a studio bundles the rights to a successful film like This Is Spinal Tap with several unsuccessful films like Embassy releases Wacky Taxi, Jesse James Meets Frankenstein’s Daughter, Santa Claus Conquers the Martians, and, of course Zapped! The revenue from the deal is then divided evenly between each picture in the bundle, even though the purchaser is only interested in one of the films, so a $1 million licensing agreement for this hypothetical Spinal Tap/Zapped! package would only show $200,000 in revenue for Spinal Tap. But the lawsuit goes farther, alleging that the defendants, including StudioCanal executive Ron Halpern, engaged in outright fraud, deliberately underreporting revenue and making up Spinal Tap-related expenses to avoid having to pay any profit to Shearer and the other creators.
Shearer further alleges that Vivendi made unfair licensing deals with its subsidiaries for music rights, and abandoned its trademark to “Spinal Tap,” allowing a brewing company to register the name for its own products while simultaneously prohibiting Shearer from using it himself. In addition to the lawsuit’s damages, Shearer is also filing for copyright termination, under a Copyright Act clause that would allow him to revoke the studios’ rights to the movie entirely. So to sum up, Shearer wants to publicly dismantle unfair accounting practices, take This Is Spinal Tap away from StudioCanal and Vivendi, and receive $125 million in compensation. It’s like, how much more black could this be for Vivendi and StudioCanal, and the answer is none. None more black.
