The three core members of legendary fictional heavy metal band Spin̈al Tap have reunited, not for a new album, movie, or tour, but to sue a film distributor for $400 million.
Bassist Derek Smalls — better known as “Hollywood actor Harry Shearer” — originally sued French movie distribution giant Vivendi for $125 million in Oct. 2016 , alleging the company had not shared the wealth from the 1984 Marty DiBergi documentary This Is Spinal Tap.
This week, Smalls has amended his complaint [PDF] to include bandmates Nigel Tufnel, David St. Hubbins, and director DiBergi (who also use the aliases, Christopher Guest, Michael McKean, and Rob Reiner, respectively), and is now seeking $400 million in damages for “anti-competitive and unfair business practices, as well as fraudulent accounting.”
“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,” Reiner said in a statement from the actors.
In the lawsuit, the plaintiffs say that the movie and its music — written by the actors — have remained popular for more than 30 years, “and have earned considerable sums for the French conglomerate Vivendi S.A.”
Not so much for the movie’s creators, the complaints claims.
“Defendant Vivendi and its agents, including StudioCanal executive Ron Halpern, have engaged in anti-competitive business practices by manipulating the accounting between Vivendi film and music subsidiaries and have engaged in fraud to deprive the Spinal Tap creators of a fair return for their work,” the lawsuit reads.
Since TIST‘s release in 1984, the film’s “enduring popularity has generated tens of millions of dollars in revenue,” the lawsuit claims, “and its associated intellectual property has substantial value.”
But despite that success, the men contend in the lawsuit, Vivendi said the four creators’ share of total worldwide merchandising income between 1984 and 2013 was just $81. And between 1989 and 2013, total income from music sales was purportedly just $98. The lawsuit claims that Vivendi has failed to provide accounting statements at all over the past three years.
“Vivendi has engaged and is continuing to engage in anti-competitive and unfair business practices and has abandoned its obligations to enforce intellectual property rights in This Is Spinal Tap, unlawfully depriving Plaintiffs of substantial revenues,” the lawsuit reads. “Vivendi has also failed, and continues to fail, to account honestly for income actually received from This Is Spinal Tap.”
The actors point to a signed agreement with Embassy Pictures, wherein the four men were to receive “fixed, deferred and contingent compensation for their services in the form of profit participation payments based on all sources of revenue, including, without limitation, merchandise and music.”
Embassy promised in that agreement to send earnings statements to the group as well, the lawsuit says, showing the calculation of net Receipts, first on a monthly, then quarterly, and after approximately three years, on an annual basis.
“But Vivendi, Embassy’s successor-in-interest, has breached and continues to breach these promises,” the lawsuit claims.
The lawsuit also claims that StudioCanal, a subsidiary of Vivendi, has failed to enforce the Spinal Tap trademark, allowing for unlicensed items that use it or third-party products branded with the film’s name. Not only did Canal fail to enforce its trademarks, it abandoned those registrations in 2011, the lawsuit claims.
Yet, Canal still claims rights against the creators if they want to use the Spinal Tap name, the group claims.
“Despite Defendants’ abandonment of any trademarks rights related to This Is Spinal Tap, including in and to the mark SPINAL TAP, Defendants have sought selectively to claim rights to the marks against Plaintiffs, and have sought to prevent Plaintiffs from performing or selling merchandise in association with the marks SPINAL TAP or DEREK SMALLS unless Defendants grant a license and receive payment for such use,” the lawsuit reads.
Shearer has since filed trademark applications to reclaim creative rights to use the names “Spinal Tap” and “Derek Smalls” without interference from Vivendi.
“Such anti-competitive practices need to be exposed,” Reiner said in the actors’ statement. “I am hoping this lawsuit goes to 11.”
The complaint makes no mention of seeking any compensation for the estates of late Tap drummers like John “Stumpy” Pepys, Eric “Stumpy Joe” Childs, Peter “James” Bond, Mick Shrimpton, Joe “Mama” Besser, Richard “Ric” Shrimpton, Sammy “Stumpy” Bateman, Scott “Skippy” Scuffleton, or Chris “Poppa” Cadeau.