This Is Spinal Tap co-creators Harry Shearer, Rob Reiner, Michael McKean and Christopher Guest may have recently settled with Universal Music Group, but that doesn’t quite mean that a potentially big copyright termination battle is finished. On Monday, Vivendi’s StudioCanal unit filed counterclaims against the creators of the 1984 cult film in a bid to have a California federal judge declare it to be a “work made for hire.”
Shearer filed a $400 million lawsuit more than three years ago. In August 2018, a judge allowed an amended fraud claim over the accounting of the movie and ancillary merchandising and music. Since then, the litigation has been in a restful phase with the parties pursuing a settlement agreement. The plaintiffs were able to reach resolution with one of the co-defendants — UMG, which was fighting copyright reversion of the soundtrack — but talks with Vivendi have evidently proved less successful at least at the moment.
StudioCanal is now looking to head off a complete loss of Spinal Tap rights.
The Copyright Act of 1976 allows authors, after waiting 35 years, to reclaim their creations via a termination notice. Many works from the 1980s, including Terminator, Who Framed Roger Rabbit and Die Hard, are now being terminated.
There are certain limits to who can terminate. One of the key wrinkles in copyright law pertains to works prepared in the scope of employment. If something is made as a work-for-hire, then it’s the employer who is seen as the statutory author. The actual person who wrote the script, composition or other work of authorship has no ability to terminate.
Now, StudioCanal seeks declaratory relief that Spinal Tap is one of those works ineligible for copyright termination.
According to the counterclaims, the Shearer crew entered into agreements with Embassy Pictures, a predecessor to StudioCanal. The creators also signed inducement letters that specified they were employees, states the court papers. Additionally, the services of Shearer, Reiner, McKean and Guest were allegedly provided pursuant to the applicable collective bargaining agreements at the time. StudioCanal asserts this is another signal they were employees.
The plaintiffs’ amended complaint tells a different story: Spinal Tap‘s characters were created before any agreement with Vivendi’s predecessor, appeared on television in a skit in 1979, and then made an appearance in a 20-minute short. Furthermore, the creators say an “instrument of transfer” with Embassy provided an assignment of copyrights and failed to state that the works were “for hire.”
The Spinal Tap dispute calls to mind the ongoing Friday the 13th case where the scriptwriter was able to prevail against “work for hire” arguments made by the producer. That case is now before the Second Circuit Court of Appeals, examining, among other things, the importance of guilds with respect to termination powers. The Friday the 13th producer has even warned that the decision will mean the demise of the Writers Guild of America.
If the Spinal Tap case doesn’t settle and ends up in a ruling that gets brought to an appeal, it would be heard at the Ninth Circuit Court of Appeals, which could potentially depart from what’s happening for Friday the 13th at the Second Circuit. An appellate split would increase the likelihood of the involvement from the Supreme Court, with major Hollywood studios watching what a decision would mean for their iconic ’80s and ’90s franchises.
The prospect of this dispute being turned up to 11, of course, is a long ways down the road. For now, expect both sides to pursue discovery and present briefing about the creation of the ’80s classic. Here’s the full counterclaim, which also includes a demand that StudioCanal be declared the owner of Spinal Tap common law trademarks. StudioCanal resists the allegation it has abandoned these trademarks over the years.
“The stay in proceedings is now over,” says Stanton “Larry” Stein, who represents the four creators. “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.”