![](\"https:\/\/upload.wikimedia.org\/wikipedia\/en\/thumb\/4\/44\/Derek_Smalls.jpg\/220px-Derek_Smalls.jpg\")
Harry Shearer, mainly known as as bassist Derek Smalls at Spinal Tap, announced a $125 million fraud and contract breach lawsuit against Vivendi and StudioCanal over the classic movie, This is Spinal Tap. Harry is trying to win back the rights of the film and the popular soundtrack. Moreover, he claims that the four band members have received just $81 in merchandising income and $98 in musical sales income in the past three decades from the franchise.<\/p>\n
<\/p>\n
\u00a0<\/p>\n
Here is the 17 pages lawsuit that was filled\u00a0 in California federal court on Monday:<\/p>\n
\u00a0<\/p>\n
Case 2:16-cv-07733\u00a0 Document 1\u00a0 Filed 10\/17\/16\u00a0 Page 1 of 17\u00a0 Page ID #:1<\/p>\n
1\u00a0\u00a0\u00a0 Peter L. Haviland (Bar Number 144967) havilandp@ballardspahr.com <\/p>\n
2\u00a0\u00a0\u00a0 Scott S. Humphreys (Bar Number 298021) humphreyss@ballardspahr.com <\/p>\n
3\u00a0\u00a0\u00a0 Terrence M. Jones (Bar Number 256603) jonestm@ballardspahr.com <\/p>\n
4\u00a0\u00a0\u00a0 BALLARD SPAHR LLP
2029 Century Park East, Suite 800
5\u00a0\u00a0\u00a0 Los Angeles, CA 90067- 2909 Telephone: 424.204.4400 <\/p>\n
6\u00a0\u00a0\u00a0 Facsimile: 424.204.4350 <\/p>\n
7\u00a0\u00a0\u00a0 Attorneys for Plaintiff
8\u00a0\u00a0\u00a0 Century of Progress Productions <\/p>\n
9\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 UNITED STATES DISTRICT COURT\u00a0\u00a0\u00a0
10\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 CENTRAL DISTRICT OF CALIFORNIA\u00a0\u00a0\u00a0
11\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 )\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
12\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 CENTURY OF PROGRESS\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 Case No. 2:16-cv-07733\u00a0\u00a0\u00a0
)\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
13\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 PRODUCTIONS,\u00a0\u00a0\u00a0 )\u00a0\u00a0\u00a0 COMPLAINT FOR:\u00a0\u00a0\u00a0
Plaintiff,\u00a0\u00a0\u00a0 )\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 <\/p>\n
14\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 )\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 <\/p>\n
v.\u00a0\u00a0\u00a0 )\u00a0\u00a0\u00a0 (1)\u00a0\u00a0\u00a0 Breach of Contract;\u00a0\u00a0\u00a0 <\/p>\n
15\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 )\u00a0\u00a0\u00a0 (2)\u00a0 Breach of the Implied Covenant\u00a0\u00a0\u00a0
)\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
16\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 VIVENDI S.A.; STUDIOCANAL;\u00a0\u00a0\u00a0 )\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 of Good Faith and Fair Dealing;\u00a0\u00a0\u00a0
)\u00a0\u00a0\u00a0 (3)\u00a0\u00a0\u00a0 Fraud;\u00a0\u00a0\u00a0
STUDIOCANAL IMAGE;\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
17\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 RON HALPERN, an individual; and\u00a0\u00a0\u00a0 )\u00a0\u00a0\u00a0 (4)\u00a0\u00a0\u00a0 Accounting; and\u00a0\u00a0\u00a0
)\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
18\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 DOES 1 through 10, inclusive,\u00a0\u00a0\u00a0 )\u00a0\u00a0\u00a0 (5)\u00a0\u00a0\u00a0 Declaratory Relief Re:\u00a0\u00a0\u00a0
)\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 Trademark (28 U.S.C. \u00a7 2201)\u00a0\u00a0\u00a0 <\/p>\n
19\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 Defendants.\u00a0\u00a0\u00a0 )\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
)\u00a0\u00a0\u00a0 DEMAND FOR JURY TRIAL\u00a0\u00a0\u00a0
20\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 )\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
)\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
21\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 )\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 <\/p>\n
22\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
23\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
24\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
25\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
26\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
27\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
28\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 <\/p>\n
COMPLAINT AND DEMAND FOR JURY TRIAL\u00a0\u00a0\u00a0 <\/p>\n
Case 2:16-cv-07733\u00a0 Document 1\u00a0 Filed 10\/17\/16\u00a0 Page 2 of 17\u00a0 Page ID #:2<\/p>\n
1\u00a0\u00a0\u00a0 PRELIMINARY STATEMENT<\/p>\n
2\u00a0\u00a0\u00a0 1. Harry Shearer, creator of the radio and podcast program “Le Show,” <\/p>\n
3\u00a0\u00a0\u00a0 and voice of some twenty-three characters on “The Simpsons,” is co-creator of <\/p>\n
4\u00a0\u00a0\u00a0 the movie classic This Is Spinal Tap, in which he performed as the musician <\/p>\n
5\u00a0\u00a0\u00a0 Derek Smalls. <\/p>\n
6\u00a0\u00a0\u00a0 2. This Is Spinal Tap and its music, which Shearer also co-wrote, <\/p>\n
7\u00a0\u00a0\u00a0 including such songs as “Sex Farm” and “Stonehenge,” have remained popular for <\/p>\n
8\u00a0\u00a0\u00a0 more than thirty years, and have earned considerable sums for the French <\/p>\n
9\u00a0\u00a0\u00a0 conglomerate Vivendi S.A. <\/p>\n
10\u00a0\u00a0\u00a0 3. But not for its creators. Defendant Vivendi and its agents, including <\/p>\n
11\u00a0\u00a0\u00a0 StudioCanal executive Ron Halpern, have engaged in anti-competitive business <\/p>\n
12\u00a0\u00a0\u00a0 practices by manipulating accounting between Vivendi film and music subsidiaries <\/p>\n
13\u00a0\u00a0\u00a0 and have engaged in fraud to deprive the Spinal Tap creators of a fair return for <\/p>\n
14\u00a0\u00a0\u00a0 their work. <\/p>\n
15\u00a0\u00a0\u00a0 4. To address this fraud, Mr. Shearer through his company Century of <\/p>\n
16\u00a0\u00a0\u00a0 Progress Productions (“CPP” or “Plaintiff”) brings the present action seeking not less <\/p>\n
17\u00a0\u00a0\u00a0 than one hundred twenty five million dollars ($125,000,000) in compensatory and <\/p>\n
18\u00a0\u00a0\u00a0 punitive damages. Plaintiff is concurrently issuing notices of copyright termination <\/p>\n
19\u00a0\u00a0\u00a0 and has filed trademark applications to secure creative rights. CPP seeks a judicial <\/p>\n
20\u00a0\u00a0\u00a0 declaration vindicating those rights, which have been abandoned by Vivendi. <\/p>\n
21\u00a0\u00a0\u00a0 5. Since the movie\u2019s release in 1984, This Is Spinal Tap music, <\/p>\n
22\u00a0\u00a0\u00a0 merchandise, classic phrases and images have become ubiquitous in popular culture. <\/p>\n
23\u00a0\u00a0\u00a0 The movie itself had two theatrical releases and has been re-sold in a number of <\/p>\n
24\u00a0\u00a0\u00a0 commercial formats. A series of companies has profited from merchandising, <\/p>\n
25\u00a0\u00a0\u00a0 music, film, television and video rights. For many years, Vivendi and its <\/p>\n
26\u00a0\u00a0\u00a0 subsidiaries, including Canal Plus, StudioCanal, StudioCanal Image and Universal <\/p>\n
27\u00a0\u00a0\u00a0 Music Group (“Vivendi”), have claimed and administered many of these rights and <\/p>\n
28\u00a0\u00a0\u00a0 have been responsible for accounting to the co-creators, including Plaintiff. <\/p>\n
2<\/p>\n
COMPLAINT AND DEMAND FOR JURY TRIAL<\/p>\n
Case 2:16-cv-07733\u00a0 Document 1\u00a0 Filed 10\/17\/16\u00a0 Page 3 of 17\u00a0 Page ID #:3<\/p>\n
1\u00a0\u00a0\u00a0 6. But according to Vivendi, the four creators\u2019 share of total worldwide <\/p>\n
2\u00a0\u00a0\u00a0 merchandising income between 1984 and 2006 was $81 (eighty-one) dollars. <\/p>\n
3\u00a0\u00a0\u00a0 Between 1989 and 2006 total income from music sales was $98 (ninety-eight) <\/p>\n
4\u00a0\u00a0\u00a0 dollars. Over the past two years, Vivendi has failed to provide accounting <\/p>\n
5\u00a0\u00a0\u00a0 statements at all. <\/p>\n
6\u00a0\u00a0\u00a0 7. Vivendi has engaged and is continuing to engage in anti-competitive <\/p>\n
7\u00a0\u00a0\u00a0 and unfair business practices and has abandoned its obligations to enforce <\/p>\n
8\u00a0\u00a0\u00a0 intellectual property rights in This Is Spinal Tap, unlawfully depriving Plaintiff of <\/p>\n
9\u00a0\u00a0\u00a0 substantial revenues. Vivendi has also failed, and continues to fail, to account <\/p>\n
10\u00a0\u00a0\u00a0 honestly for income actually received from This Is Spinal Tap. <\/p>\n
11\u00a0\u00a0\u00a0 THE PARTIES<\/p>\n
12\u00a0\u00a0\u00a0 8. Plaintiff is a California corporation with its principal place of business <\/p>\n
13\u00a0\u00a0\u00a0 in Sherman Oaks, California. <\/p>\n
14\u00a0\u00a0\u00a0 9. Defendant Vivendi S.A. (“Vivendi”) is a French corporation <\/p>\n
15\u00a0\u00a0\u00a0 headquartered in Paris, France, doing business in and engaging in acts affecting <\/p>\n
16\u00a0\u00a0\u00a0 Plaintiff within this judicial district. <\/p>\n
17\u00a0\u00a0\u00a0 10.\u00a0\u00a0 Defendant StudioCanal (“Canal”) is a subsidiary of Vivendi, <\/p>\n
18\u00a0\u00a0\u00a0 headquartered in Paris, France, doing business in and engaging in acts affecting <\/p>\n
19\u00a0\u00a0\u00a0 Plaintiff within this judicial district. <\/p>\n
20\u00a0\u00a0\u00a0 11.\u00a0\u00a0 Defendant StudioCanal Image, a French joint stock company and <\/p>\n
21\u00a0\u00a0\u00a0 subsidiary of Vivendi, is the last listed owner for certain federal trademark <\/p>\n
22\u00a0\u00a0\u00a0 registrations in the trademark SPINAL TAP which have been abandoned and <\/p>\n
23\u00a0\u00a0\u00a0 cancelled by the United States Patent and Trademark Office. <\/p>\n
24\u00a0\u00a0\u00a0 12.\u00a0\u00a0 Defendant Ron Halpern is an executive of Canal, resident in Paris, <\/p>\n
25\u00a0\u00a0\u00a0 France, doing business in and engaging in acts directed at persons and entities <\/p>\n
26\u00a0\u00a0\u00a0 within this judicial district. <\/p>\n
27\u00a0\u00a0\u00a0 13.\u00a0\u00a0 Does 1 through 10 are persons and\/or entities whose true names and <\/p>\n
28\u00a0\u00a0\u00a0 capacities are unknown to Plaintiff and who participated in, conspired with, and\/or <\/p>\n
3<\/p>\n
COMPLAINT AND DEMAND FOR JURY TRIAL<\/p>\n
Case 2:16-cv-07733\u00a0 Document 1\u00a0 Filed 10\/17\/16\u00a0 Page 4 of 17\u00a0 Page ID #:4<\/p>\n
1\u00a0\u00a0\u00a0 caused Defendants to engage in the fraud and breaches of contract as alleged herein <\/p>\n
2\u00a0\u00a0\u00a0 and who are otherwise responsible and liable to Plaintiff for the wrongful acts <\/p>\n
3\u00a0\u00a0\u00a0 alleged herein. Plaintiff will amend this Complaint to allege the true names and <\/p>\n
4\u00a0\u00a0\u00a0 capacities of said defendants as they become known. <\/p>\n
5\u00a0\u00a0\u00a0 JURISDICTION AND VENUE<\/p>\n
6\u00a0\u00a0\u00a0 14.\u00a0\u00a0 This Court has jurisdiction under 28 U.S.C. \u00a7 1332 as the matter in <\/p>\n
7\u00a0\u00a0\u00a0 controversy exceeds the sum or value of $75,000 exclusive of interest and costs, <\/p>\n
8\u00a0\u00a0\u00a0 and is between citizens of a State and citizens or subjects of a foreign state. <\/p>\n
9\u00a0\u00a0\u00a0 15.\u00a0\u00a0 This Court has jurisdiction pursuant to 28 U.S.C. \u00a7 1331 and 1338(a) <\/p>\n
10\u00a0\u00a0\u00a0 because this action seeks declaratory judgment that Defendants lack rights to enforce <\/p>\n
11\u00a0\u00a0\u00a0 abandoned trademarks under the Lanham Act, 15 U.S.C. \u00a7 1051 et seq. <\/p>\n
12\u00a0\u00a0\u00a0 16.\u00a0\u00a0 Venue is proper in this district under 28 U.S.C. \u00a7 1391(b) because a <\/p>\n
13\u00a0\u00a0\u00a0 substantial part of the events that the claims are based upon occurred in this district. <\/p>\n
14\u00a0\u00a0\u00a0 17.\u00a0\u00a0 Jurisdiction and venue are proper in this Court because Defendants, <\/p>\n
15\u00a0\u00a0\u00a0 through their predecessor-in-interest Embassy Pictures, a California joint venture, <\/p>\n
16\u00a0\u00a0\u00a0 contractually consented to submit to the jurisdiction of the District Court of the <\/p>\n
17\u00a0\u00a0\u00a0 Central District of California. <\/p>\n
18\u00a0\u00a0\u00a0 ALLEGATIONS COMMON TO ALL CAUSES OF ACTION <\/p>\n
19\u00a0\u00a0\u00a0 The Genesis and Success of “This Is Spinal Tap”<\/p>\n
20\u00a0\u00a0\u00a0 18.\u00a0\u00a0 Christopher Guest (“Guest”), Michael McKean (“McKean”) and <\/p>\n
21\u00a0\u00a0\u00a0 Harry Shearer (“Shearer”) first performed together live as Spinal Tap in a television <\/p>\n
22\u00a0\u00a0\u00a0 show in the 1970’s. They later, with Rob Reiner, developed the characters in the <\/p>\n
23\u00a0\u00a0\u00a0 Spinal Tap band and made a short film with improvised scenes and seven songs. <\/p>\n
24\u00a0\u00a0\u00a0 In the process of attempting to turn that short film into a feature-length movie, they <\/p>\n
25\u00a0\u00a0\u00a0 formed a joint partnership, “Spinal Tap Productions” (“STP”). On the strength of <\/p>\n
26\u00a0\u00a0\u00a0 this work, on May 7, 1982, Reiner, Shearer, Guest, and McKean, as co-owners of <\/p>\n
27\u00a0\u00a0\u00a0 STP, signed an agreement (the “Agreement”) with Embassy Pictures (“Embassy”) <\/p>\n
28<\/p>\n
4<\/p>\n
COMPLAINT AND DEMAND FOR JURY TRIAL<\/p>\n
Case 2:16-cv-07733\u00a0 Document 1\u00a0 Filed 10\/17\/16\u00a0 Page 5 of 17\u00a0 Page ID #:5<\/p>\n
1\u00a0\u00a0\u00a0 for production, financing, and distribution of the motion picture This Is Spinal Tap <\/p>\n
2\u00a0\u00a0\u00a0 (“TIST” or “the Film”). <\/p>\n
3\u00a0\u00a0\u00a0 19.\u00a0\u00a0 Under the terms of the Agreement, STP and its principals Reiner, <\/p>\n
4\u00a0\u00a0\u00a0 Shearer, Guest and McKean were to receive fixed, deferred and contingent <\/p>\n
5\u00a0\u00a0\u00a0 compensation for their services in the form of profit participation payments based <\/p>\n
6\u00a0\u00a0\u00a0 on all sources of revenue, including, without limitation, merchandise and music. <\/p>\n
7\u00a0\u00a0\u00a0 20.\u00a0\u00a0 TIST was released in 1984. The renowned Chicago Sun film critic <\/p>\n
8\u00a0\u00a0\u00a0 Roger Ebert described TIST as “absolutely inspired” in a 1984 review that well <\/p>\n
9\u00a0\u00a0\u00a0 summarized the film\u2019s appeal: <\/p>\n
10\u00a0\u00a0\u00a0 Rock musicians never die, they just fade away, and\u00a0\u00a0\u00a0
11\u00a0\u00a0\u00a0 \u201cThis Is Spinal Tap\u2019\u2019 is a movie about a British rock\u00a0\u00a0\u00a0
group that is rocketing to the bottom of the charts. It also\u00a0\u00a0\u00a0
12\u00a0\u00a0\u00a0 is one of the funniest,\u00a0\u00a0\u00a0 most intelligent, most original\u00a0\u00a0\u00a0
films of the year.\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
13\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
The movie looks like a documentary filmed during the\u00a0\u00a0\u00a0
14\u00a0\u00a0\u00a0 death throes of a British rock band named Spinal Tap.\u00a0\u00a0\u00a0
It is, in fact, a satire.\u00a0\u00a0\u00a0 The rock group does not really\u00a0\u00a0\u00a0
15\u00a0\u00a0\u00a0 exist, but the best thing about this film is that it could.\u00a0\u00a0\u00a0
The music, the staging, the special effects, the backstage\u00a0\u00a0\u00a0
16\u00a0\u00a0\u00a0 feuding and the pseudo- profound philosophizing are right\u00a0\u00a0\u00a0
out of a hundred other rock groups and a dozen other\u00a0\u00a0\u00a0
17\u00a0\u00a0\u00a0 documentaries about rock.\u00a0\u00a0\u00a0
The group is in the middle of an American tour. The tour\u00a0\u00a0\u00a0
18\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
is not going well. Spinal Tap was once able to fill giant\u00a0\u00a0\u00a0
19\u00a0\u00a0\u00a0 arenas, but its audiences have grown smaller and smaller,\u00a0\u00a0\u00a0
and concert dates are evaporating as the bad news gets\u00a0\u00a0\u00a0
20\u00a0\u00a0\u00a0 around.\u00a0 No wonder. Spinal Tap is a bad rock \u2018n\u2019 roll\u00a0\u00a0\u00a0
band. It is derivative, obvious, phony and pretentious,\u00a0\u00a0\u00a0
21\u00a0\u00a0\u00a0 and\u00a0 it\u00a0 surrounds\u00a0 itself\u00a0 with\u00a0 whatever\u00a0 images\u00a0 seem\u00a0\u00a0\u00a0
commercial at the moment (a giant death\u2019s head on stage,\u00a0\u00a0\u00a0
22\u00a0\u00a0\u00a0 for one).\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
The movie is absolutely inspired in the subtle way it\u00a0\u00a0\u00a0
23\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
establishes Spinal Tap\u2019s badness.\u00a0 The satire has a deft,\u00a0\u00a0\u00a0
24\u00a0\u00a0\u00a0 wicked touch.\u00a0 Spinal Tap is not that much worse than,\u00a0\u00a0\u00a0
not\u00a0 that\u00a0 much\u00a0 different\u00a0 from,\u00a0 some\u00a0 successful\u00a0 rock\u00a0\u00a0\u00a0
25\u00a0\u00a0\u00a0 bands.\u00a0 A few breaks here or there, a successful album,\u00a0\u00a0\u00a0
and they could be back in business. (Proof of that:\u00a0\u00a0\u00a0
26\u00a0\u00a0\u00a0 A soundtrack album, \u201cSmell the Glove,\u2019\u2019 is getting lots\u00a0\u00a0\u00a0
of airplay with cuts like \u201cSex Farm\u2019\u2019).\u00a0\u00a0\u00a0
27\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 <\/p>\n
28\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
5\u00a0\u00a0\u00a0
COMPLAINT AND DEMAND FOR JURY TRIAL\u00a0\u00a0\u00a0 <\/p>\n
Case 2:16-cv-07733\u00a0 Document 1\u00a0 Filed 10\/17\/16\u00a0 Page 6 of 17\u00a0 Page ID #:6<\/p>\n
1\u00a0\u00a0\u00a0 21.\u00a0\u00a0 TIST was quickly recognized as a unique film with long-term appeal, <\/p>\n
2\u00a0\u00a0\u00a0 as shown in its later inclusion in “best ever” lists such as The New York Times Guide <\/p>\n
3\u00a0\u00a0\u00a0 to the Best 1,000 Movies Ever Made; Entertainment Weekly\u2019s 100 Greatest Movies <\/p>\n
4\u00a0\u00a0\u00a0 of All Time where it appeared on the “Just Too Beloved to Ignore” list; and the <\/p>\n
5\u00a0\u00a0\u00a0 100 Greatest Movies of All Time list published by Total Film. Confirming TIST\u2019s <\/p>\n
6\u00a0\u00a0\u00a0 strong international appeal and following, in 2011 Time Out London named the film <\/p>\n
7\u00a0\u00a0\u00a0 number one on its list of The 100 Best Comedy Movies. In 2002, the National Film <\/p>\n
8\u00a0\u00a0\u00a0 Registry of the Library of Congress designated TIST as a culturally, historically, or <\/p>\n
9\u00a0\u00a0\u00a0 aesthetically significant film. TIST still enjoys popularity on television, home video, <\/p>\n
10\u00a0\u00a0\u00a0 and other media, including a 25th Anniversary Blu-Ray DVD release in 2009. <\/p>\n
11\u00a0\u00a0\u00a0 22.\u00a0\u00a0 TIST was produced on a shoestring budget of approximately $2.25 <\/p>\n
12\u00a0\u00a0\u00a0 million dollars. On information and belief, TIST\u2019s enduring popularity has <\/p>\n
13\u00a0\u00a0\u00a0 generated tens of millions of dollars in revenue in the thirty years since its original <\/p>\n
14\u00a0\u00a0\u00a0 theatrical release. <\/p>\n
15\u00a0\u00a0\u00a0 The Terms of the Original 1982 Production Agreement<\/p>\n
16\u00a0\u00a0\u00a0 23.\u00a0\u00a0 The Agreement was drafted in several sections, including an eleven- <\/p>\n
17\u00a0\u00a0\u00a0 page letter agreement with details of overall rights, personal services, and <\/p>\n
18\u00a0\u00a0\u00a0 compensation; a one-page Exhibit A Instrument of Transfer; a 48-page Exhibit B <\/p>\n
19\u00a0\u00a0\u00a0 Standard Terms and Conditions, a fourteen-page Exhibit 1 to Exhibit B Formula <\/p>\n
20\u00a0\u00a0\u00a0 for Computing Net Receipts, and a four-page Exhibit 2, Standard Delivery Items. <\/p>\n
21\u00a0\u00a0\u00a0 The Agreement is signed by Guest as President of STP, and includes Inducement <\/p>\n
22\u00a0\u00a0\u00a0 Letters on behalf of their personal services corporations from Shearer (on behalf of <\/p>\n
23\u00a0\u00a0\u00a0 Century of Progress Productions), Reiner (on behalf of Rob Reiner Productions), <\/p>\n
24\u00a0\u00a0\u00a0 Guest (on behalf of himself), and McKean (on behalf of United Heathen). <\/p>\n
25\u00a0\u00a0\u00a0 24.\u00a0\u00a0 Paragraph 12 of the Agreement acknowledges that STP “is entirely <\/p>\n
26\u00a0\u00a0\u00a0 owned by Rob Reiner Productions, United Heathen, Century of Progress <\/p>\n
27\u00a0\u00a0\u00a0 Productions and Christopher Guest.” <\/p>\n
28<\/p>\n
6<\/p>\n
COMPLAINT AND DEMAND FOR JURY TRIAL<\/p>\n
Case 2:16-cv-07733\u00a0 Document 1\u00a0 Filed 10\/17\/16\u00a0 Page 7 of 17\u00a0 Page ID #:7<\/p>\n
1\u00a0\u00a0\u00a0 25.\u00a0\u00a0 The Agreement includes identification of the creative team\u2019s services <\/p>\n
2\u00a0\u00a0\u00a0 as screenwriters and actors, and in the case of Reiner, additional directorial duties. <\/p>\n
3\u00a0\u00a0\u00a0 26.\u00a0\u00a0 The Agreement specified various sums of fixed compensation for the <\/p>\n
4\u00a0\u00a0\u00a0 creative team, as well as contingent compensation calling for a split of Net Receipts <\/p>\n
5\u00a0\u00a0\u00a0 60% to Embassy and 40% to STP (\u00b6 4a and 4b). <\/p>\n
6\u00a0\u00a0\u00a0 27.\u00a0\u00a0 Under the Agreement, Embassy promises, inter alia, to send Earnings <\/p>\n
7\u00a0\u00a0\u00a0 Statements to STP showing the calculation of Net Receipts, first on a monthly, <\/p>\n
8\u00a0\u00a0\u00a0 then quarterly, and after approximately three years, on an annual basis. But Vivendi, <\/p>\n
9\u00a0\u00a0\u00a0 Embassy’s successor-in-interest, has breached and continues to breach these <\/p>\n
10\u00a0\u00a0\u00a0 promises. <\/p>\n
11\u00a0\u00a0\u00a0 Defendants’ Acquisition of the Rights and Obligations in TIST, <\/p>\n
12\u00a0\u00a0\u00a0 and Fraudulent Accounting\u00a0\u00a0\u00a0 <\/p>\n
13\u00a0\u00a0\u00a0 28.\u00a0\u00a0 The catalog of Embassy, including unsuccessful films “bundled” with <\/p>\n
14\u00a0\u00a0\u00a0 TIST, was acquired several times in a succession of transactions including sales to <\/p>\n
15\u00a0\u00a0\u00a0 the Coca Cola Company, Parafrance, a subsidiary of L\u2019Oreal and the DeLaurentiis <\/p>\n
16\u00a0\u00a0\u00a0 Entertainment Group, Inc. In or around 1989, predecessors of Vivendi’s subsidiaries <\/p>\n
17\u00a0\u00a0\u00a0 acquired pertinent TIST rights. <\/p>\n
18\u00a0\u00a0\u00a0 29.\u00a0\u00a0 Vivendi is responsible for accounting under the Agreement. Some <\/p>\n
19\u00a0\u00a0\u00a0 profit participation statements were historically submitted to STP, c\/o Creative <\/p>\n
20\u00a0\u00a0\u00a0 Artists Agency (“CAA”), Reiner\u2019s agent. Those profit participation statements, <\/p>\n
21\u00a0\u00a0\u00a0 Plaintiff has recently discovered, reflect anti-competitive and unfair business <\/p>\n
22\u00a0\u00a0\u00a0 practices in their cross-collateralization of revenues between different Vivendi <\/p>\n
23\u00a0\u00a0\u00a0 subsidiaries; unfairly bundle and cross-collateralized unsuccessful films in the <\/p>\n
24\u00a0\u00a0\u00a0 Embassy catalogue with TIST; were not delivered to other creators; and <\/p>\n
25\u00a0\u00a0\u00a0 fraudulently underreported the revenues owed to Plaintiff and other members of <\/p>\n
26\u00a0\u00a0\u00a0 STP. Over the last two years, Vivendi and Canal have failed to account at all on <\/p>\n
27\u00a0\u00a0\u00a0 TIST revenues. <\/p>\n
28<\/p>\n
7<\/p>\n
COMPLAINT AND DEMAND FOR JURY TRIAL<\/p>\n
Case 2:16-cv-07733\u00a0 Document 1\u00a0 Filed 10\/17\/16\u00a0 Page 8 of 17\u00a0 Page ID #:8<\/p>\n
1\u00a0\u00a0\u00a0 30.\u00a0\u00a0 Revenue streams arising from the film, including sound recordings and <\/p>\n
2\u00a0\u00a0\u00a0 music publishing, were also included in the Agreement. The soundtrack music <\/p>\n
3\u00a0\u00a0\u00a0 rights are now claimed by entities including another subsidiary of Vivendi, the <\/p>\n
4\u00a0\u00a0\u00a0 Universal Music Group, which has an obligation to report and pay Canal, which in <\/p>\n
5\u00a0\u00a0\u00a0 turn has an obligation to report and pay Plaintiff pursuant to Defendants’ accounting <\/p>\n
6\u00a0\u00a0\u00a0 obligations. The accounting between the Vivendi subsidiaries is not at arm’s-length, <\/p>\n
7\u00a0\u00a0\u00a0 is anti-competitive, and deprives the TIST creators of a fair reward for their services. <\/p>\n
8\u00a0\u00a0\u00a0 Particularly given that Vivendi has offset fraudulent accounting for revenues from <\/p>\n
9\u00a0\u00a0\u00a0 music copyrights against equally dubious revenue streams for film and <\/p>\n
10\u00a0\u00a0\u00a0 merchandising rights also controlled by Vivendi subsidiaries, Shearer is concurrently <\/p>\n
11\u00a0\u00a0\u00a0 filing notices of copyright termination for publishing and recording rights in Spinal <\/p>\n
12\u00a0\u00a0\u00a0 Tap songs he co-wrote and co-recorded, as well as in the film itself. <\/p>\n
13\u00a0\u00a0\u00a0 Plaintiff Investigates Defendants’ Accounting and
14\u00a0\u00a0\u00a0 Discovers their Fraudulent Conduct<\/p>\n
15\u00a0\u00a0\u00a0 31.\u00a0\u00a0 In 2013, in anticipation of TIST’s upcoming 30th Anniversary in 2014, <\/p>\n
16\u00a0\u00a0\u00a0 Plaintiff commissioned a study of the accounting statements and revenue streams <\/p>\n
17\u00a0\u00a0\u00a0 associated with TIST. Plaintiff learned the results of that study in or around <\/p>\n
18\u00a0\u00a0\u00a0 November 2013. <\/p>\n
19\u00a0\u00a0\u00a0 32.\u00a0\u00a0 Plaintiff then first discovered that Vivendi had engaged in a pattern of <\/p>\n
20\u00a0\u00a0\u00a0 anti-competitive and unfair business practices, had abandoned enforcement of <\/p>\n
21\u00a0\u00a0\u00a0 valuable TIST rights, and had willfully concealed and manipulated years of <\/p>\n
22\u00a0\u00a0\u00a0 accountings to retain monies due and owing to Plaintiff. <\/p>\n
23\u00a0\u00a0\u00a0 33.\u00a0\u00a0 Examples of Defendants\u2019 willful misconduct designed to deprive <\/p>\n
24\u00a0\u00a0\u00a0 Plaintiff of the benefit of the promises made in the Agreement include but are not <\/p>\n
25\u00a0\u00a0\u00a0 limited to: <\/p>\n
26\u00a0\u00a0\u00a0 failure to remit statements and accountings, with gaps occurring in <\/p>\n
27\u00a0\u00a0\u00a0 years that would have enhanced revenue;<\/p>\n
28<\/p>\n
8<\/p>\n
COMPLAINT AND DEMAND FOR JURY TRIAL<\/p>\n
Case 2:16-cv-07733\u00a0 Document 1\u00a0 Filed 10\/17\/16\u00a0 Page 9 of 17\u00a0 Page ID #:9<\/p>\n
1\u00a0\u00a0\u00a0 improper expense deductions; <\/p>\n
2\u00a0\u00a0\u00a0 failure to account for monies received, including a 2004 settlement <\/p>\n
3\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 payment received from MGM Home Video totaling over $1.6 million\u00a0\u00a0\u00a0
4\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 dollars for underreported VHS and DVD revenues, when statements\u00a0\u00a0\u00a0
for the year 2004 were never submitted to Plaintiff by Defendants;\u00a0\u00a0\u00a0
5\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
undocumented marketing and promotion expenses allegedly incurred\u00a0\u00a0\u00a0
6\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
years after release totaling over $2.5 million dollars;\u00a0\u00a0\u00a0
7\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 undocumented charges to “Freight and other Direct Costs” totaling\u00a0\u00a0\u00a0
8\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
over $500,000 over several years, allegedly incurred almost twenty\u00a0\u00a0\u00a0
9\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 years after the film\u2019s initial release;\u00a0\u00a0\u00a0 <\/p>\n
10\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 failure to account for monies under the terms of the Agreement as\u00a0\u00a0\u00a0
11\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 “actually received by Embassy in the United States”;\u00a0\u00a0\u00a0 <\/p>\n
12\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 failure to collect revenue on merchandise and for use of material\u00a0\u00a0\u00a0
13\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 protected by Spinal Tap trademarks and copyrights.\u00a0\u00a0\u00a0 <\/p>\n
14\u00a0\u00a0\u00a0 34.\u00a0\u00a0 Ron Halpern, during his management of the exploitation of TIST, <\/p>\n
15\u00a0\u00a0\u00a0 repeatedly assured TIST’s manager at the time, Harriet Steinberg, that he and his <\/p>\n
16\u00a0\u00a0\u00a0 staff were fully complying with the underlying Agreement, were providing accurate <\/p>\n
17\u00a0\u00a0\u00a0 and reliable accountings to CPP, and were using all available means to promote <\/p>\n
18\u00a0\u00a0\u00a0 Spinal Tap assets and enforce Spinal Tap intellectual property to maximize revenue <\/p>\n
19\u00a0\u00a0\u00a0 for the Spinal Tap creators. These statements were made directly to Ms. Steinberg, <\/p>\n
20\u00a0\u00a0\u00a0 as well as to Harry Shearer. Plaintiff reasonably relied on these assurances from <\/p>\n
21\u00a0\u00a0\u00a0 Mr. Halpern. But the statements by Ron Halpern were knowingly false when made. <\/p>\n
22\u00a0\u00a0\u00a0 Despite Plaintiff’s reasonable diligence, Plaintiff was unaware until in or around <\/p>\n
23\u00a0\u00a0\u00a0 November 2013 that Mr. Halpern, Vivendi and its subsidiaries had intentionally <\/p>\n
24\u00a0\u00a0\u00a0 engaged in an extended and outrageous pattern of fraud and misconduct. <\/p>\n
25\u00a0\u00a0\u00a0 35.\u00a0\u00a0 In advance of the theatrical re-release of the film in 2000, managed <\/p>\n
26\u00a0\u00a0\u00a0 for Canal by Ron Halpern, Mr. Shearer was asked to fly to London to meet with <\/p>\n
27\u00a0\u00a0\u00a0 Halpern. During that meeting, a luncheon at the Groucho Club, Mr. Halpern <\/p>\n
28\u00a0\u00a0\u00a0 informed Mr. Shearer that, in accord with Mr. Shearer’s preferences to support <\/p>\n
9<\/p>\n
COMPLAINT AND DEMAND FOR JURY TRIAL<\/p>\n
Case 2:16-cv-07733\u00a0 Document 1\u00a0 Filed 10\/17\/16\u00a0 Page 10 of 17\u00a0 Page ID #:10<\/p>\n
1\u00a0\u00a0\u00a0 “indies” \u2013 independent, creative, entrepreneurial companies, the United Kingdom <\/p>\n
2\u00a0\u00a0\u00a0 re-release rights were being assigned to a small “boutique” distributor, who would <\/p>\n
3\u00a0\u00a0\u00a0 welcome Shearer’s personal involvement in marketing and advertising advice for <\/p>\n
4\u00a0\u00a0\u00a0 the re-release. Mr. Shearer responded by sharing ideas with Halpern at that meeting. <\/p>\n
5\u00a0\u00a0\u00a0 When Shearer returned to Los Angeles, he learned that in fact the United Kingdom <\/p>\n
6\u00a0\u00a0\u00a0 distributor was not an independent “boutique,” but a subsidiary of Metro-Goldwyn- <\/p>\n
7\u00a0\u00a0\u00a0 Mayer. Mr. Shearer knew then that Ron Halpern was mendacious. But Shearer <\/p>\n
8\u00a0\u00a0\u00a0 never imagined, until his review of a report in or around November 2013, that <\/p>\n
9\u00a0\u00a0\u00a0 Halpern was capable of the level of deception and willingness to subvert <\/p>\n
10\u00a0\u00a0\u00a0 contractual obligations that characterized Halpern’s mistreatment of This Is Spinal <\/p>\n
11\u00a0\u00a0\u00a0 Tap’s creators. <\/p>\n
12\u00a0\u00a0\u00a0 36.\u00a0\u00a0 On information and belief, the conduct described here, including <\/p>\n
13\u00a0\u00a0\u00a0 financial accounting, intellectual property and legal policies and practices of Canal <\/p>\n
14\u00a0\u00a0\u00a0 and Universal Music Group, as well as the personal practices of Ron Halpern, are <\/p>\n
15\u00a0\u00a0\u00a0 controlled and directed by Vivendi. Canal, Universal Music Group and Ron Halpern <\/p>\n
16\u00a0\u00a0\u00a0 are both ostensible and actual agents for Vivendi, and Vivendi has liability for the <\/p>\n
17\u00a0\u00a0\u00a0 acts of each of these agents. <\/p>\n
18\u00a0\u00a0\u00a0 The SPINAL TAP Trademark<\/p>\n
19\u00a0\u00a0\u00a0 37.\u00a0\u00a0 In 1984, Defendants’ predecessor, Embassy, filed a trademark <\/p>\n
20\u00a0\u00a0\u00a0 application with the United States Patent and Trademark Office (USPTO) for the <\/p>\n
21\u00a0\u00a0\u00a0 mark SPINAL TAP. The federal registration for that mark was cancelled by the <\/p>\n
22\u00a0\u00a0\u00a0 USPTO in 1991. In early 2000, Defendants’ predecessors filed certain other federal <\/p>\n
23\u00a0\u00a0\u00a0 trademark registration applications with the USPTO for the mark SPINAL TAP as <\/p>\n
24\u00a0\u00a0\u00a0 shown in Exhibit 1 hereto. In or about March 2002, as shown in Exhibit 2 hereto, <\/p>\n
25\u00a0\u00a0\u00a0 the rights to those marks were conveyed to Defendant StudioCanal Image, a <\/p>\n
26\u00a0\u00a0\u00a0 Vivendi subsidiary, who is still identified by the USPTO as the last listed owner <\/p>\n
27\u00a0\u00a0\u00a0 for those federal registrations. <\/p>\n
28<\/p>\n
10<\/p>\n
COMPLAINT AND DEMAND FOR JURY TRIAL<\/p>\n
Case 2:16-cv-07733\u00a0 Document 1\u00a0 Filed 10\/17\/16\u00a0 Page 11 of 17\u00a0 Page ID #:11<\/p>\n
1\u00a0\u00a0\u00a0 38.\u00a0\u00a0 Defendants subsequently abandoned, with no intent to resume, all rights <\/p>\n
2\u00a0\u00a0\u00a0 to the SPINAL TAP marks, and the federal registrations for those marks were <\/p>\n
3\u00a0\u00a0\u00a0 cancelled by the USPTO in 2011 and 2012 as shown in Exhibit 1 hereto. As <\/p>\n
4\u00a0\u00a0\u00a0 additional evidence of such abandonment, Defendants did not oppose a trademark <\/p>\n
5\u00a0\u00a0\u00a0 application filed on December 27, 2013 by Heretic Brewing Company to register <\/p>\n
6\u00a0\u00a0\u00a0 the mark SPINAL TAP in connection with “beer” products, and that mark was <\/p>\n
7\u00a0\u00a0\u00a0 registered by the USPTO on April 7, 2015 as shown in Exhibit 3 hereto. <\/p>\n
8\u00a0\u00a0\u00a0 39.\u00a0\u00a0 Because the SPINAL TAP marks have been abandoned by Defendants, <\/p>\n
9\u00a0\u00a0\u00a0 CPP has filed applications for federal registrations of the marks SPINAL TAP and <\/p>\n
10\u00a0\u00a0\u00a0 DEREK SMALLS as set forth in Exhibits 4 through 7 hereto. <\/p>\n
11\u00a0\u00a0\u00a0 COUNT I
12\u00a0\u00a0\u00a0 Breach of Contract
13\u00a0\u00a0\u00a0 (Against Vivendi and Canal)<\/p>\n
14\u00a0\u00a0\u00a0 40.\u00a0\u00a0 Plaintiff repeats and realleges the allegations set forth in Paragraphs <\/p>\n
15\u00a0\u00a0\u00a0 1 through 39 above, as if fully set forth herein. <\/p>\n
16\u00a0\u00a0\u00a0 41.\u00a0\u00a0 Defendants Vivendi and Canal, through their predecessor-in-interest <\/p>\n
17\u00a0\u00a0\u00a0 Embassy entered into the May 7, 1982 Agreement with Spinal Tap Productions. <\/p>\n
18\u00a0\u00a0\u00a0 Plaintiff was a party to that Agreement as acknowledged in Paragraph 12 of the <\/p>\n
19\u00a0\u00a0\u00a0 Agreement and in the various provisions of the Agreement for Plaintiff\u2019s services, <\/p>\n
20\u00a0\u00a0\u00a0 which granted rights to Plaintiff including fixed, deferred and contingent <\/p>\n
21\u00a0\u00a0\u00a0 compensation. <\/p>\n
22\u00a0\u00a0\u00a0 42.\u00a0\u00a0 At all times, Plaintiff performed its obligations under the Agreement. <\/p>\n
23\u00a0\u00a0\u00a0 43.\u00a0\u00a0 Defendants have breached and are in continuing breach of their <\/p>\n
24\u00a0\u00a0\u00a0 obligations under the Agreement by, inter alia, engaging in anti-competitive and <\/p>\n
25\u00a0\u00a0\u00a0 unfair cross-collateralization between Vivendi subsidiaries; cross-collateralizing <\/p>\n
26\u00a0\u00a0\u00a0 unsuccessful films bundled with TIST in their accounting; failing to remit <\/p>\n
27\u00a0\u00a0\u00a0 accounting statements; failing to respond to enquiries and information requests; <\/p>\n
28\u00a0\u00a0\u00a0 failing to keep accurate records; failing to include revenues in accounting <\/p>\n
11<\/p>\n
COMPLAINT AND DEMAND FOR JURY TRIAL<\/p>\n
Case 2:16-cv-07733\u00a0 Document 1\u00a0 Filed 10\/17\/16\u00a0 Page 12 of 17\u00a0 Page ID #:12<\/p>\n
1\u00a0\u00a0\u00a0 statements; claiming undocumented and false expenses as part of a fraudulent <\/p>\n
2\u00a0\u00a0\u00a0 scheme to deprive Plaintiff of its contractual rights; and failing to diligently exploit <\/p>\n
3\u00a0\u00a0\u00a0 available revenue streams. <\/p>\n
4\u00a0\u00a0\u00a0 44.\u00a0\u00a0 Plaintiff has been and continues to be damaged by Defendants’ illegal <\/p>\n
5\u00a0\u00a0\u00a0 acts in amounts to be proven at trial. <\/p>\n
6\u00a0\u00a0\u00a0 COUNT II
7\u00a0\u00a0\u00a0 Breach of the Implied Covenant of Good Faith and Fair Dealing
8\u00a0\u00a0\u00a0 (Against Vivendi and Canal)<\/p>\n
9\u00a0\u00a0\u00a0 45.\u00a0\u00a0 Plaintiff repeats and realleges the allegations set forth in Paragraphs <\/p>\n
10\u00a0\u00a0\u00a0 1 through 44 above, as if fully set forth herein. <\/p>\n
11\u00a0\u00a0\u00a0 46.\u00a0\u00a0 The 1982 Agreement, governed by California law, contains an implied <\/p>\n
12\u00a0\u00a0\u00a0 covenant of good faith and fair dealing. Defendants breached this implied covenant <\/p>\n
13\u00a0\u00a0\u00a0 by their acts, including the anti-competitive and unfair business practices among <\/p>\n
14\u00a0\u00a0\u00a0 Vivendi subsidiaries alleged herein. <\/p>\n
15\u00a0\u00a0\u00a0 47.\u00a0\u00a0 Defendants have intentionally abused their power to frustrate Plaintiff\u2019s <\/p>\n
16\u00a0\u00a0\u00a0 right to receive the benefit of the bargain made in the Agreement, in a manner that <\/p>\n
17\u00a0\u00a0\u00a0 goes beyond mere breach of the Agreement, but as part of an intentional scheme <\/p>\n
18\u00a0\u00a0\u00a0 abusing Defendants\u2019 discretionary power to deprive Plaintiff of the benefits <\/p>\n
19\u00a0\u00a0\u00a0 contemplated in the Agreement. <\/p>\n
20\u00a0\u00a0\u00a0 48.\u00a0\u00a0 Plaintiff has been damaged by Defendants’ wrongful conduct in <\/p>\n
21\u00a0\u00a0\u00a0 amounts to be proven at trial. <\/p>\n
22\u00a0\u00a0\u00a0 COUNT III
23\u00a0\u00a0\u00a0 Fraud
24\u00a0\u00a0\u00a0 (Against Vivendi, Canal and Ron Halpern)<\/p>\n
25\u00a0\u00a0\u00a0 49.\u00a0\u00a0 Plaintiff repeats and realleges the allegations set forth in Paragraphs <\/p>\n
26\u00a0\u00a0\u00a0 1 through 48 above, as if fully set forth herein. <\/p>\n
27\u00a0\u00a0\u00a0 50.\u00a0\u00a0 Defendants, by and through Rob Halpern, repeatedly made statements <\/p>\n
28\u00a0\u00a0\u00a0 to Plaintiff\u2019s agents that Mr. Halpern and his staff were fully complying with the <\/p>\n
12<\/p>\n
COMPLAINT AND DEMAND FOR JURY TRIAL<\/p>\n
Case 2:16-cv-07733\u00a0 Document 1\u00a0 Filed 10\/17\/16\u00a0 Page 13 of 17\u00a0 Page ID #:13<\/p>\n
1\u00a0\u00a0\u00a0 underlying Agreement, were providing accurate and reliable accountings to Plaintiff, <\/p>\n
2\u00a0\u00a0\u00a0 and were using all available means to enforce Spinal Tap trademarks and copyrights <\/p>\n
3\u00a0\u00a0\u00a0 and to maximize revenue for the Spinal Tap creators. These statements were <\/p>\n
4\u00a0\u00a0\u00a0 knowingly false when made. Plaintiff reasonably relied on these statements. <\/p>\n
5\u00a0\u00a0\u00a0 51.\u00a0\u00a0 Defendants\u2019 acts constitute intentional misrepresentation, deceit, and <\/p>\n
6\u00a0\u00a0\u00a0 concealment of material facts known to the Defendants with the intention of <\/p>\n
7\u00a0\u00a0\u00a0 unlawfully depriving Plaintiff of financial consideration due under the Agreement. <\/p>\n
8\u00a0\u00a0\u00a0 52.\u00a0\u00a0 As a direct result of Defendants\u2019 intentional misrepresentations, <\/p>\n
9\u00a0\u00a0\u00a0 Plaintiff was unaware of the true facts and did not discover Defendants’ fraudulent <\/p>\n
10\u00a0\u00a0\u00a0 accounting practices until approximately November 2013. <\/p>\n
11\u00a0\u00a0\u00a0 53.\u00a0\u00a0 As a result of Defendants’ fraud, Plaintiff has been damaged in amounts <\/p>\n
12\u00a0\u00a0\u00a0 to be proven at trial. <\/p>\n
13\u00a0\u00a0\u00a0 54.\u00a0\u00a0 Defendants’ conduct was willful, wanton and oppressive, designed <\/p>\n
14\u00a0\u00a0\u00a0 maliciously to steal from, deceive and injure Plaintiff. Plaintiff is entitled to an <\/p>\n
15\u00a0\u00a0\u00a0 award of punitive damages to punish and deter this conduct. <\/p>\n
16\u00a0\u00a0\u00a0 COUNT IV
17\u00a0\u00a0\u00a0 For an Accounting
18\u00a0\u00a0\u00a0 (Against Vivendi, Canal and Ron Halpern)<\/p>\n
19\u00a0\u00a0\u00a0 55.\u00a0\u00a0 Plaintiff repeats and realleges the allegations set forth in Paragraphs <\/p>\n
20\u00a0\u00a0\u00a0 1 through 54 above, as if fully set forth herein. <\/p>\n
21\u00a0\u00a0\u00a0 56.\u00a0\u00a0 Defendants were obligated to provide to Plaintiff statements accurately <\/p>\n
22\u00a0\u00a0\u00a0 reflecting the amount of revenues derived from the distribution and exploitation of <\/p>\n
23\u00a0\u00a0\u00a0 the Film and associated music and merchandise rights, and to remit to Plaintiff its <\/p>\n
24\u00a0\u00a0\u00a0 share of revenues. <\/p>\n
25\u00a0\u00a0\u00a0 57.\u00a0\u00a0 Despite demand therefor, Defendants have failed and refused, and <\/p>\n
26\u00a0\u00a0\u00a0 continue to fail and refuse, to provide Plaintiff with proper and accurate <\/p>\n
27\u00a0\u00a0\u00a0 accountings reflecting the amount of revenues derived from the distribution and <\/p>\n
28\u00a0\u00a0\u00a0 exploitation of the Film and associated music and merchandise rights. Instead, <\/p>\n
13<\/p>\n
COMPLAINT AND DEMAND FOR JURY TRIAL<\/p>\n
Case 2:16-cv-07733\u00a0 Document 1\u00a0 Filed 10\/17\/16\u00a0 Page 14 of 17\u00a0 Page ID #:14<\/p>\n
1\u00a0\u00a0\u00a0 Defendants have intentionally provided false and fraudulent profit participation <\/p>\n
2\u00a0\u00a0\u00a0 statements to Plaintiff. <\/p>\n
3\u00a0\u00a0\u00a0 58.\u00a0\u00a0 The false and fraudulent profit participation statements submitted by <\/p>\n
4\u00a0\u00a0\u00a0 Defendants are cumulative, and entitle Plaintiff to an accurate and truthful <\/p>\n
5\u00a0\u00a0\u00a0 accounting showing how the current cumulative numbers were calculated. <\/p>\n
6\u00a0\u00a0\u00a0 59.\u00a0\u00a0 Plaintiff is entitled to an order requiring Defendants to provide their <\/p>\n
7\u00a0\u00a0\u00a0 complete books and records of account in all details. <\/p>\n
8\u00a0\u00a0\u00a0 COUNT V
9\u00a0\u00a0\u00a0 Declaratory Judgment of Non-Infringement, 28 U.S.C. \u00a7 2201, et seq.
10\u00a0\u00a0\u00a0 (Against Vivendi, Canal and StudioCanal Image)<\/p>\n
11\u00a0\u00a0\u00a0 60.\u00a0\u00a0 Plaintiff repeats and realleges the allegations set forth in Paragraphs <\/p>\n
12\u00a0\u00a0\u00a0 1 through 59 above, as if fully set forth herein. <\/p>\n
13\u00a0\u00a0\u00a0 61.\u00a0\u00a0 In 1984, Defendants’ predecessor-in-interest Embassy filed a trademark <\/p>\n
14\u00a0\u00a0\u00a0 application with the United States Patent and Trademark Office (USPTO) for <\/p>\n
15\u00a0\u00a0\u00a0 the mark SPINAL TAP in connection with entertainment services rendered by a <\/p>\n
16\u00a0\u00a0\u00a0 musical group. The federal registration for that mark (Registration No. 1311537) <\/p>\n
17\u00a0\u00a0\u00a0 was cancelled by the USPTO in 1991 as shown in Exhibit 1 hereto. <\/p>\n
18\u00a0\u00a0\u00a0 62.\u00a0\u00a0 In early 2000, Defendants’ predecessor-in-interest, Canal + D.A., a <\/p>\n
19\u00a0\u00a0\u00a0 Vivendi subsidiary, filed certain trademark applications with the USPTO for the <\/p>\n
20\u00a0\u00a0\u00a0 mark SPINAL TAP in connection with, inter alia, entertainment services in the <\/p>\n
21\u00a0\u00a0\u00a0 nature of live musical performances by a group, videotape and film production of <\/p>\n
22\u00a0\u00a0\u00a0 live musical performances, and certain merchandising associated with the mark as <\/p>\n
23\u00a0\u00a0\u00a0 shown in Exhibit 1 hereto. <\/p>\n
24\u00a0\u00a0\u00a0 63.\u00a0\u00a0 In or about March 2002, Canal + D.A. filed an instrument with the <\/p>\n
25\u00a0\u00a0\u00a0 USPTO stating that it had merged with Defendant StudioCanal Image, a Vivendi <\/p>\n
26\u00a0\u00a0\u00a0 subsidiary, and that it was conveying its rights to the applications and registrations <\/p>\n
27\u00a0\u00a0\u00a0 for the SPINAL TAP marks to StudioCanal Image, as shown in Exhibit 2 hereto. <\/p>\n
28\u00a0\u00a0\u00a0 StudioCanal Image is identified by the USPTO as the last listed owner for federal <\/p>\n
14<\/p>\n
COMPLAINT AND DEMAND FOR JURY TRIAL<\/p>\n
Case 2:16-cv-07733\u00a0 Document 1\u00a0 Filed 10\/17\/16\u00a0 Page 15 of 17\u00a0 Page ID #:15<\/p>\n
1\u00a0\u00a0\u00a0 registrations for those SPINAL TAP marks, now cancelled, Registration Nos. <\/p>\n
2\u00a0\u00a0\u00a0 2499728, 2463576, 2867023, 2881983 and 2881984. <\/p>\n
3\u00a0\u00a0\u00a0 64.\u00a0\u00a0 Defendants subsequently abandoned the SPINAL TAP marks, resulting <\/p>\n
4\u00a0\u00a0\u00a0 in the USPTO’s cancellation of the federal registrations for those SPINAL TAP <\/p>\n
5\u00a0\u00a0\u00a0 marks in 2011 and 2012 as shown in Exhibit 1 hereto. Defendants’ abandonment of <\/p>\n
6\u00a0\u00a0\u00a0 the SPINAL TAP marks is reflected by their discontinuation of use or enforcement <\/p>\n
7\u00a0\u00a0\u00a0 of the marks in the ordinary course of trade for at least three consecutive years <\/p>\n
8\u00a0\u00a0\u00a0 without intent to resume use. <\/p>\n
9\u00a0\u00a0\u00a0 65.\u00a0\u00a0 Defendants’ abandonment is further evidenced by the fact that <\/p>\n
10\u00a0\u00a0\u00a0 Defendants’ did not oppose an application filed on December 27, 2013 by Heretic <\/p>\n
11\u00a0\u00a0\u00a0 Brewing Company to register the mark SPINAL TAP for use in connection with <\/p>\n
12\u00a0\u00a0\u00a0 “beer” products, which mark was registered by the USPTO on April 7, 2015 <\/p>\n
13\u00a0\u00a0\u00a0 (Registration No. 4717603) as shown in Exhibit 3 hereto. <\/p>\n
14\u00a0\u00a0\u00a0 66.\u00a0\u00a0 Despite Defendants’ abandonment of any trademarks rights related to <\/p>\n
15\u00a0\u00a0\u00a0 This Is Spinal Tap, including in and to the mark SPINAL TAP, Defendants have <\/p>\n
16\u00a0\u00a0\u00a0 sought selectively to claim rights to the marks against Plaintiff and other co-creators <\/p>\n
17\u00a0\u00a0\u00a0 of the SPINAL TAP band, and have sought to prevent Plaintiff from performing or <\/p>\n
18\u00a0\u00a0\u00a0 selling merchandise in association with the marks SPINAL TAP or DERRICK <\/p>\n
19\u00a0\u00a0\u00a0 SMALLS unless Defendants grant a license and receive payment for such use. <\/p>\n
20\u00a0\u00a0\u00a0 67.\u00a0\u00a0 Plaintiff, rejecting Defendants\u2019 claim of rights, has recently filed <\/p>\n
21\u00a0\u00a0\u00a0 applications with the USPTO for federal registration of the marks SPINAL TAP and <\/p>\n
22\u00a0\u00a0\u00a0 DEREK SMALLS — which have been assigned serial numbers 87203893, <\/p>\n
23\u00a0\u00a0\u00a0 87203921, 87203942, and 87203958 — for, inter alia, entertainment services in the <\/p>\n
24\u00a0\u00a0\u00a0 nature of live music concerts and dramatic, comedic and musical performances and <\/p>\n
25\u00a0\u00a0\u00a0 for certain merchandise as set forth in Exhibits 4 through 7 hereto. <\/p>\n
26\u00a0\u00a0\u00a0 68.\u00a0\u00a0 A substantial controversy exists between the parties as to whether <\/p>\n
27\u00a0\u00a0\u00a0 Plaintiff has the right to use and register the trademarks SPINAL TAP and DEREK <\/p>\n
28\u00a0\u00a0\u00a0 SMALLS in connection with entertainment performances and merchandise. The <\/p>\n
15<\/p>\n
COMPLAINT AND DEMAND FOR JURY TRIAL<\/p>\n
Case 2:16-cv-07733\u00a0 Document 1\u00a0 Filed 10\/17\/16\u00a0 Page 16 of 17\u00a0 Page ID #:16<\/p>\n
1\u00a0\u00a0\u00a0 controversy has sufficient immediacy and reality to warrant the issuance of a <\/p>\n
2\u00a0\u00a0\u00a0 declaratory judgment. A judicial declaration is necessary and appropriate at this <\/p>\n
3\u00a0\u00a0\u00a0 time in order that Plaintiff may ascertain its rights and duties with respect to the <\/p>\n
4\u00a0\u00a0\u00a0 marks SPINAL TAP and DEREK SMALLS. <\/p>\n
5\u00a0\u00a0\u00a0 69.\u00a0\u00a0 Plaintiff seeks declaratory judgment pursuant to 28 U.S.C. \u00a7 2201 and <\/p>\n
6\u00a0\u00a0\u00a0 Federal Rule of Civil Procedure 57, confirming that Plaintiff’s use of the SPINAL <\/p>\n
7\u00a0\u00a0\u00a0 TAP and DERREK SMALLS marks in connection with the services and goods set <\/p>\n
8\u00a0\u00a0\u00a0 forth in its trademark applications does not infringe any abandoned trademark rights <\/p>\n
9\u00a0\u00a0\u00a0 of Defendants. <\/p>\n
10\u00a0\u00a0\u00a0 RELIEF REQUESTED<\/p>\n
11\u00a0\u00a0\u00a0 WHEREFORE, Plaintiff respectfully requests that the Court enter an Order: <\/p>\n
12\u00a0\u00a0\u00a0 (a)\u00a0\u00a0 Compelling Defendants to produce the original books and records of <\/p>\n
13\u00a0\u00a0\u00a0 account and to satisfactorily and accurately account to Plaintiff with respect to all <\/p>\n
14\u00a0\u00a0\u00a0 expenses and revenues for the film TIST, including associated music, merchandise <\/p>\n
15\u00a0\u00a0\u00a0 and other revenues, and to disgorge the monies due to Plaintiff therefrom; <\/p>\n
16\u00a0\u00a0\u00a0 (b)\u00a0\u00a0 Declaring that Plaintiff’s registration and use of the SPINAL TAP <\/p>\n
17\u00a0\u00a0\u00a0 and DEREK SMALLS marks in connection with the goods and services set forth <\/p>\n
18\u00a0\u00a0\u00a0 in its trademark applications do not infringe on any abandoned trademark rights of <\/p>\n
19\u00a0\u00a0\u00a0 Defendants; <\/p>\n
20\u00a0\u00a0\u00a0 (c)\u00a0\u00a0 Awarding Plaintiff the following: <\/p>\n
21\u00a0\u00a0\u00a0 (i)\u00a0\u00a0\u00a0 Compensatory and punitive damages in amounts to be
22\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 determined at trial;
23\u00a0\u00a0\u00a0 (ii)\u00a0\u00a0\u00a0 Costs of suit;
24\u00a0\u00a0\u00a0 (iii)\u00a0\u00a0\u00a0 Reasonable attorneys’ fees;
25\u00a0\u00a0\u00a0 (iv)\u00a0\u00a0\u00a0 Pre- and Post-Judgment Interest as allowed by law;<\/p>\n
26\u00a0\u00a0\u00a0 (d)\u00a0\u00a0 Granting such other and further relief as the Court deems just and <\/p>\n
27\u00a0\u00a0\u00a0 proper. <\/p>\n
28<\/p>\n
16<\/p>\n
COMPLAINT AND DEMAND FOR JURY TRIAL<\/p>\n
Case 2:16-cv-07733\u00a0 Document 1\u00a0 Filed 10\/17\/16\u00a0 Page 17 of 17\u00a0 Page ID #:17<\/p>\n
1\u00a0\u00a0\u00a0 JURY DEMAND
2\u00a0\u00a0\u00a0 Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff <\/p>\n
3\u00a0\u00a0\u00a0 demands a trial by jury on all issues triable by right to a jury. <\/p>\n
4\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
5\u00a0\u00a0\u00a0 DATED: October 17, 2016\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 BALLARD SPAHR LLP\u00a0\u00a0\u00a0
6\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
7\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \/s\/ Peter L. Haviland\u00a0\u00a0\u00a0
8\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 Peter L. Haviland\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 <\/p>\n
9\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 Attorneys for Plaintiff\u00a0\u00a0\u00a0
10\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 Century of Progress Productions\u00a0\u00a0\u00a0 <\/p>\n
11\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
12\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
13\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
14\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
15\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
16\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
17\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
18\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
19\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
20\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
21\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
22\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
23\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
24\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
25\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
26\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
27\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
28\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
17\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0
COMPLAINT AND DEMAND FOR JURY TRIAL\u00a0\u00a0\u00a0 <\/p>\n
<\/p>\n
\u00a0<\/p>\n
Article Sources: Hollywood Reporter \/ Century of Progress Productions
Image source: IMDB \/ Copyright holder: \u00a9 2000 MGM Home Entertainment<\/p>\n
<\/pre>\n\u00a0<\/p>\n","protected":false},"excerpt":{"rendered":"
Harry Shearer, mainly known as as bassist Derek Smalls at Spinal Tap, announced a $125…<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"nf_dc_page":"","footnotes":""},"categories":[23],"tags":[],"class_list":["post-6248","post","type-post","status-publish","format-standard","hentry","category-music-news"],"_links":{"self":[{"href":"https:\/\/skylight.gr\/index.php\/wp-json\/wp\/v2\/posts\/6248","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/skylight.gr\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/skylight.gr\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/skylight.gr\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/skylight.gr\/index.php\/wp-json\/wp\/v2\/comments?post=6248"}],"version-history":[{"count":0,"href":"https:\/\/skylight.gr\/index.php\/wp-json\/wp\/v2\/posts\/6248\/revisions"}],"wp:attachment":[{"href":"https:\/\/skylight.gr\/index.php\/wp-json\/wp\/v2\/media?parent=6248"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/skylight.gr\/index.php\/wp-json\/wp\/v2\/categories?post=6248"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/skylight.gr\/index.php\/wp-json\/wp\/v2\/tags?post=6248"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}