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Number One With A Blank Round


In 1979, the TV show Laverne And Shirley was riding high.  And among those riding the wave were Micheal McKean and David Lander, who played comic foils Lenny and Squiggy on the show.  During an episode about a talent show put on by employees of the brewery, the two appeared as a music duo called "Lenny And The Squigtones."  This proved popular enough that McKean and Lander did a special "Lenny And The Squigtones" performance at the Roxy in Hollywood, which was recorded and released that year on Casablanca records.  This odd footnote in music history was actually fraught with portent, as one of the credited band members on the album was one Nigel Tufnel, played by a Mister Christopher Guest.

A little while later, ABC had commissioned a pilot for a sketch comedy series from Rob Reiner.  By this point, McKean and Guest had found a third compatriot for their antics, Harry Shearer.  Writing a sketch with Rob Reiner, they created a parody promotional video for a song called "Rock And Roll Nightmare."  Guest repurposed his Tufnel identity, McKean adopted the moniker of David St. Hubbins, and Shearer became Derek Smalls.  This was the modest beginnings of the greatest band that never was, Spinal Tap.

In 1984, production began on one of the greatest comedy movies ever made, This Is Spinal Tap.  Supposedly tracking the band as they attempted to break into and conquer the American music market, the movie took advantage of its set-up to lampoon ever major musical movement in rock and roll.  Not only that, but the band became the Wile E. Coyote of music.  Every conceivable thing that could go wrong did go wrong.  The story of the disasterous tour was replete with prop and set malfunctions, getting lost beneath the stage before their biggest show, and a succession of drummers who dropped like flies.  In fact, the movie was so well done and thought out that, according to legend, Rob Halford of Judas Priest gathered up all the roadies on the band's tour and demanded to know which one of them blabbed to the Spinal Tap crew.

(Side note:  the band also appeared as the musical act on Saturday Night Live in 1984, when McKean and Guest had joined the cast.)

Since then, the band has become its own entity, even going so far as to play Wembley Stadium, proof that you've made it to the top.  They released a new album back in 1992 called "Break Like The Wind," and went on tour.  Their stop in Chicago was part of a triple bill that had them playing with Screaming Trees.  Screaming Trees sucked, Spinal Tap was awesome, and all I could think was, "Attention, Screaming Trees -- you are being outperformed by a joke band!"  In 1985, Ronnie James Dio started Hear 'n Aid, a sort of "We Are The World" with metal artists to raise money for famine relief in Ethiopia.  Dio invited Spinal Tap to be part of it.  Only McKean and Shearer could make it, and they were treated to legends of metal like Dio, Halford, Don Dokken, Eric Bloom, Mickey Mars, Vince Neil, Yngwie Malmsteen, Ted Nugent, and more geeking out over meeting Spinal Tap and sharing their own stories of concert malfunctions and mishaps.

However, despite this rich legacy, the band still has real problems once in a while.  And one of them has come rearing up, in the form of Harry Shearer, being repped by Peter Haviland at Ballard Spahr, suing French entertainment company Vivendi and StudioCanal.  Filed today in a California federal court, he is seeking $125 mil in compensatory and punitive damages.  How Vivendi wound up with Spinal Tap is a bit convoluted, having started at Embassy Pictures with the original film and landing at Vivendi after a series of transactions and acquisitions.  Bottom line:  Vivendi is the ultimate rights holder, and Shearer is seeking to change that (besides alleging Vivendi has abandoned trademarks related to the film, Shearer wants a declaration that his use of the Spinal Tap and Derek Smalls trademarks does not infringe on the trademark rights supposedly abandoned by Vivendi).

Among the things that happened in the intervening years, according to the lawsuit, were a $1.6 mil settlement from MGM Home Video over underreported home sales revenues.  It also alleges failure to collect merchandising revenue, improper business expenses, and undocumented marketing and promotion "allegedly incurred years after the release totaling over $2.5 million."  Shearer alleges that Vivendi has engaged in "anti-competitive and unfair business practices," and "willfully concealed and manipulated years of accountings to retain monies due and owing to plaintiff."  To help back this up, the suit claims that, "according to Vivendi, the four creators' share of total worldwide merchandising income between 1984 and 2006 was $81.  Between 1989 and 2006 total income from music sales was $98.  Over the past two years, Vivendi has failed to provide basic accounting statements at all."  Shearer wants those books opened and wants an explanation.

Here's where it gets tricky, though -- Eddie Murphy once famously said that any deal you made where you took a cut of the net instead of the gross was a "monkey deal," that you had to be as stupid as a monkey to take it.  In the original deal with Embassy, Reiner, McKean, Guest, and Shearer, not realizing what was going to happen, agreed to 40% of the net receipts.

And this is where Hollywood accounting comes into play (anyone else remember how the movie versions of Forrest Gump and Harry Potter And The Order Of The Phoenix were alleged to have not made any money?).  And there's an additional wrinkle to this, something known in the business as "straightlining," or not properly managing the flow of payments through their subsidiaries, which has become a problem in this age of vertically-oriented companies.  The complaint alleges that Vivendi was "cross-collateralizing unsuccessful films bundled with TIST in their accounting."  Shearer also alleges that, while a brewery was able to file a trademark on "Spinal Tap" without a challenge from Vivendi, Shearer himself has been prohibited from reprising his famous character on copyright grounds.

All this adds up to Shearer's gambit of invoking the Copyright Act's termination provisions.  They allow authors to cancel grants and retain rights after 35 years (which means McCartney could potentially get the Beatles catalog back if he sticks around long enough).  This means that Vivendi et al. would lose the rights to everything Spinal Tap in 2019.

Keep an eye on the papers, folks.  This is going to get interesting.....

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