This is Spinal Tap – it’s gone past eleven

November 2017

Film & TV, recorded music


We previously reported about the ongoing ‘This is Spinal Tap’ litigation. In fact, I am sure that we are now running out of puns, I guess each time “it’s one louder, isn’t it?”

But now the four creators, have amended their claim. The amendments have resulted in more specific claims against Vivendi and now Universal Music is also featured as a co-defendant. 

The legal representatives for Harry Shearer, Christopher Guest, Michael McKean and Rob Reiner have stated that “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” and “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”.

So some very serious allegations and amounts, but this is 2017 and where would any music law dispute be without a copyright reversion element, well the creators are now asking for “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”.  For those of you that are familiar with the recent Duran Duran case, you will know that US copyright law has a provision in place whereby creators of copyright work can apply to terminate the previous assignment of their copyright at the end of a 35 year period. Because the right exists in a 1970s law, we are seeing a lot of cases that are testing the statutes capabilities. Whilst the creators are testing the capabilities, the record labels are testing its limits. In the Spinal Tap litigation Vivendi is doing this (of course!) by claiming that the reversion right should not apply. Is this going to crack the litigation up to 12?

The instigator of the Spinal Tap litigation, Harry Shearer, said that “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”.

One thing is for sure, this is Spinal Tap and this piece of litigation will be ongoing for some time. 

By Samuel O’Toole

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