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What the "Spinal Tap" lawsuit means for Hollywood

Members of Spinal Tap, from left, David St. Hubbins, Derek Smalls and Nigel Tufnel pose for photographers at a showing in 2000. Chris Weeks/Liaison

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This is Spinal Tap,” the mockumentary about a fictional heavy-metal band, paved the way for a genre of docu-style films and TV shows, like “Best in Show,” “The Office” and “Modern Family.” But much like the fictional band’s failed entrance to onto a Cleveland Stage, when “This is Spinal Tap” was released in 1984, its box office take was a letdown. But in the years since it opened, it’s become a classic. Now Harry Shearer, Rob Reiner, Michael McKean and Christopher Guest, the four creators of the film, are suing the company that owns the rights for $400 million.

Marketplace host Adriene Hill talked with Robert Kolker about his article for Bloomberg Businessweek on the lawsuit. The following is an edited transcript of their conversation.

Adriene Hill: So, this is a pretty well-loved film. You report that the creators have made almost nothing for it. How is that possible?

Robert Kolker: Well, they signed a pretty short but what was standard deal at the time with Embassy Pictures, which went out of business shortly thereafter. And then the rights to the movie shifted from owner to owner until now they’re finally with Vivendi. And, according to the contract, all the creators of “Spinal Tap” — that’s the three members of the band and Rob Reiner, the director, are entitled to back-end participation. That is to say, profits. But according to Vivendi, each of them only made something like $81 for merchandising and $98 for songs. It’s hard to believe that a movie that’s been circulating for so long and adored by so many wouldn’t pay off anyone who’s entitled to the back end. But these guys have gotten basically nothing.

Hill: Talk me through the accounting that goes into this. What do we know about how the Vivendi is coming up with this number?

Kolker: Well, more will come out probably as the litigation proceeds and if an audit actually happens. But, well, the running joke in Hollywood is that no movies ever make money and that if you want to have that back-end participation in the movie, good luck finding it. It just isn’t going to be there. And the most significant lawsuit decades ago about this was the “Coming to America” lawsuit that Art Buchwald filed. He wrote a treatment and had an idea for a movie, and Paramount bought it, and they promised him a piece of the profits. And “Coming to America” made $288 million. And yet somehow it didn’t make a profit. But that case settled before Paramount’s techniques and tactics could really be exposed to the public, and so everyone has been sort of waiting for another splashy lawsuit that will expose what Hollywood does.

Hill: And is this that lawsuit, you think?

Kolker: I think potentially it is, because you’ve got four guys who aren’t interested in settling and who are interested in, you know, being influential in helping young creators like the people they used to be decades ago.

Hill: And Harry Shearer here is sort of leading the charge, is that right?

Kolker: Right. And he’s the one who initially filed the lawsuit. But then in February he was joined by the rest of the band, and they all are saying the same thing. And so suddenly, it becomes a much more significant potentially for Hollywood, not necessarily because of the money at stake but because of the publicity it can engender and because of what it can expose about the techniques that all studios use to sort of move money around so that movies don’t make profit.

Hill: Could this case be precedent setting in that way? I saw an editorial he wrote in Rolling Stone basically saying “this is for all creators,” but does it have the potential to do that going forward, to actually impact creators today?

Kolker: I think the most likely scenario of it having an impact is if they don’t settle and this winds up in court, and suddenly it will be bad publicity for the entire industry. And so, Hollywood studios will be shamed into changing their practices or making them a little bit more transparent. That’s what makes this case so special. I don’t think they’re going to settle. I don’t think Harry Shearer has any motivation to settle. He’s not doing this for money. He’s doing this because he feels like he’s wearing the white hat here, and he thinks that he can probably strike a blow for truth and justice here.

Kolker: Robert Kolker is a reporter at Bloomberg BusinessWeek. Thanks so much. 

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