'Spinal Tap' lawsuit against Vivendi can proceed, U.S. court says

PARIS (Reuters) - The creators of the 1984 cult mockumentary "This is Spinal Tap" can proceed with their lawsuit against Vivendi after the media giant's motion to dismiss the case was partially rejected, a U.S. court said on Thursday.

Harry Shearer, best known for his voiceovers in "The Simpsons", sued Vivendi in February for $125 million (93.48 million pounds)of profits from the movie that he alleges he is owed.

The three other co-creators, Christopher Guest, Michael McKean and Rob Reiner, then joined the complaint, bringing the total claim to $400 million.

In her decision, California's U.S district judge Dolly M. Gee said "Spinal Tap"'s four co-creators failed to prove Vivendi was responsible for fraud, a key element in determining potential financial damages.

But she also said the four were "intended third-party beneficiaries of the 1982 agreement" under which Guest, Reiner, Shearer and McKean were considered as the "screenplay writers" and "actors", allowing them to receive compensation and royalties.

"Vivendi thought we would be made to go away. Well, not today, not tomorrow, nor the next day," Shearer said in a statement. "England’s loudest band will be heard."

Vivendi, led by French billionaire Vincent Bollore, bought the rights to the film about a rock band in 1989 but has not paid Shearer, who plays bassist Derek Smalls, or his three Spinal Tap co-creators their rightful dues, according to their complaint.

Despite having generated millions of dollars in revenue, the complaint said, Vivendi reported soundtrack sales of just $98 between 1989 and 2006, and calculated the four creators' share of total merchandising income between 1984 and 2006 at $81.

Vivendi declined to comment on the U.S. court's decision.

"Plaintiffs may not like the fact that they have not received anything close to the $400 million in contingent compensation that their complaint absurdly claims they should have received," Vivendi's lawyers wrote in their motion to dismiss the case.

"But that is only because the movie they made has not generated anywhere near the revenue necessary to pay them anything close to that amount," they added.

(Reporting by Mathieu Rosemain; Editing by Mark Potter)