“This is Spinal Tap,” with its eminent quotability, is a cultural touchstone. I had heard of it, but not seen the movie until last year, when my husband sat down to watch it with me as part of his Sisyphean task of filling in the gaps in my pop culture knowledge.
In comedy, timing is everything. Perhaps I just saw “This is Spinal Tap” too late in life, or after seeing too many other movies that bore its influence, to appreciate the novelty in the same way my husband did. The two of us spent the evening together watching it, one of us laughing hysterically (often in anticipation) and the other listening attentively for the punchline (often long past it).
So why would I choose this topic for a blog post? It’s all in the timing.
A few days ago, Harry Shearer sued Vivendi (and related entities), accusing the media company of cheating him and the other co-creators of “This is Spinal Tap” out of millions of dollars in profits from the movie, the soundtrack, and related merchandise sales through breach of contract and unfair business practices.
Mr. Shearer launched a website to persuade the public of his case: http://www.fairnessrocks.com/. While much of the suit has to do with breach of contract and fraud claims, trademarks play a role too. The website timeline explains that in the last four years Mr. Shearer has been frustrated by Vivendi’s unwillingness to pursue trademark infringements that he brought to their attention, suggesting that this inattention diminishes the value of the reward he could otherwise expect to receive. The complaint includes a declaratory judgment claim for non-infringement of trademark rights.
In general, it looks like Mr. Shearer plans to show Vivendi how it could have been a better steward of the intellectual property assets associated with the movie, soundtrack, and related merchandise. Central to this effort is his exercise of termination rights with respect to the copyright assignments, which would cause any copyrights arising out of the works that he had previously assigned to revert to him. Through his company, Century of Progress Productions, he has also filed intent-to-use trademark applications to register SPINAL TAP and DEREK SMALLS for use with entertainment services, printed matter, and clothing. (But no figurines??)
The complaint asserts that Vivendi attempted to selectively enforce the Spinal Tap-related trademark rights against Mr. Shearer by interfering with his efforts to use the marks without a license from them (even though they and their subsidiaries allowed multiple Spinal Tap-related trademark applications and registrations to go abandoned or be canceled and did not enforce the marks against others in recent years). The complaint argues that this controversy supports his request for a declaratory judgment that his use of SPINAL TAP and DEREK SMALLS in connection with the goods and services set forth in the applications does not infringe Vivendi’s allegedly abandoned trademark rights.
Whether Mr. Shearer’s claims against Vivendi or his own efforts to commercialize the intellectual property assets related to “This is Spinal Tap” will succeed remain to be seen. But Mr. Shearer’s instinct that the trademark rights are a critical piece of the puzzle are supported by the movie’s persistent popularity over time and the marketing opportunity that seems inherent in such popularity. While superhero and children’s movies seem to make the most of licensing, the Star Wars series demonstrates that beloved cultural icons may have the most success long term. Clearly there is a market for fans of pop culture classics like “This is Spinal Tap.”
If Mr. Shearer has the chance to pursue his project, perhaps the next time we go to the store we will see amps that go to eleven.