Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 1 of 39 Page ID #:972 1 QUINN EMANUEL URQUHART & SULLIVAN, LLP Robert M. Schwartz (Bar No. 117166) 2 robertschwartz@quinnemanuel.com Daniel C. Posner (Bar No. 232009) 3 danposner@quinnemanuel.com Zachary A. Schenkkan (Bar No. 304738) 4 zackschenkkan@quinnemanuel.com 5 865 South Figueroa Street, 10th Floor Los Angeles, California 90017-2543 6 Telephone: (213) 443-3000 7 Facsimile: (213) 443-3100 8 Attorneys for Defendants Vivendi S.A., Studiocanal, and Ron Halpern 9 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA 12 13 CENTURY OF PROGRESS PRODUCTIONS, et al., 14 15 v. CASE NO. 2:16-cv-07733-DMG-AS Plaintiffs, 16 VIVENDI S.A., et al., Defendants. 17 ANSWER TO THIRD AMENDED COMPLAINT BY DEFENDANTS VIVENDI S.A., STUDIOCANAL S.A.S., AND RON HALPERN, AND COUNTERCLAIMS OF STUDIOCANAL S.A.S. FOR DECLARATORY RELIEF 18 DEMAND FOR JURY TRIAL 19 STUDIOCANAL S.A.S., Judge: Hon. Dolly M. Gee 20 Trial Date: None Set Counterclaim Plaintiff, 21 v. 22 CENTURY OF PROGRESS PRODUCTIONS; CHRISTOPHER 23 GUEST; ROB REINER PRODUCTIONS; UNITED 24 HEATHEN; SPINAL TAP PRODUCTIONS; HARRY SHEARER; 25 ROB REINER; and MICHAEL MCKEAN, 26 Counterclaim Defendants. 27 28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 2 of 39 Page ID #:973 1 2 ANSWER Defendants Vivendi S.A. (“Vivendi”), Studiocanal S.A.S. (“Studiocanal”), 3 and Ron Halpern (together, “Defendants”), by and through their counsel, hereby 4 answer each allegation of the Third Amended Complaint (the “TAC”) filed by 5 Plaintiffs Century of Progress Productions, Christopher Guest, Rob Reiner 6 Productions, United Heathen, Spinal Tap Productions (“STP”), Harry Shearer, Rob 7 Reiner, and Michael McKean (together, “Plaintiffs”). Certain allegations of the 8 TAC are made as to all or several parties, including separately-represented (and 9 recently dismissed) defendants Universal Music Group, Inc. (“Universal Music”) 10 and UMG Recordings, Inc. (“UMG”). Defendants respond herein to the allegations 11 in the TAC only insofar as such allegations pertain to them. Unless expressly and 12 specifically admitted, Defendants deny each and every allegation, contention, and 13 statement in the TAC. Defendants answer as follows: 14 1. Answering paragraph 1 of the TAC, Defendants state that the 15 allegations contain legal conclusions to which no response is required; otherwise, 16 Defendants deny the allegations set forth therein. 17 2. Answering paragraph 2 of the TAC, Defendants state that the 18 allegations contain legal conclusions to which no response is required. To the extent 19 a response is required, Defendants admit that after this lawsuit was first filed, 20 Studiocanal received a document titled “Notice of Termination pursuant to Section 21 203 of the Copyright Act (P.L. 94-553 (90 Stat. 2541),” purportedly prepared on 22 behalf of Harry Shearer, regarding the motion picture This is Spinal Tap and related 23 musical compositions; otherwise, Defendants deny the allegations set forth therein. 24 3. Answering paragraph 3 of the TAC, Defendants state that this 25 paragraph purports to refer to Vivendi S.A.’s February 28, 2017 motion to dismiss, 26 which speaks for itself (Dkt. 24); otherwise, Defendants deny the allegations set 27 forth therein. 28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -1ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 3 of 39 Page ID #:974 1 4. Answering paragraph 4 of the TAC, Defendants state that the 2 allegations contain legal conclusions to which no response is required; otherwise, 3 Defendants deny the allegations set forth therein. 4 5. Answering paragraph 5 of the TAC, Defendants state that the 5 allegations contain legal conclusions to which no response is required; otherwise, 6 Defendants deny the allegations set forth therein. 7 6. Answering paragraph 6 of the TAC, Defendants are without knowledge 8 or information sufficient to form a belief as to the truth or falsity of the allegations 9 set forth therein, and on that basis, deny them. In addition, Defendants state that the 10 allegations contain legal conclusions to which no response is required; otherwise, 11 Defendants deny the allegations set forth therein. 12 7. Answering paragraph 7 of the TAC, Defendants admit that STP signed 13 an agreement with Embassy Pictures on May 7, 1982. Defendants state that to the 14 extent this paragraph refers to the document representing that agreement, that 15 document speaks for itself (Dkt. 24-2 at 2-12). Defendants are without knowledge 16 or information sufficient to form a belief as to the truth or falsity of the remaining 17 allegations set forth therein, and on that basis, deny them. In addition, Defendants 18 state that the allegations contain legal conclusions to which no response is required; 19 otherwise, Defendants deny the allegations set forth therein. 20 8. Answering paragraph 8 of the TAC, Defendants state that to the extent 21 this paragraph refers to a document titled “Instrument of Transfer,” that document 22 speaks for itself (Dkt. 24-2 at 20). In addition, Defendants state that the allegations 23 contain legal conclusions to which no response is required; otherwise, Defendants 24 deny the allegations set forth therein. 25 9. Answering paragraph 9 of the TAC, Defendants state that the 26 allegations contain legal conclusions to which no response is required. To the extent 27 a response is required, Defendants admit that Studiocanal and UMG own rights that 28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -2ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 4 of 39 Page ID #:975 1 Embassy Pictures obtained from STP or that arose as a matter of law; otherwise, 2 Defendants deny the allegations set forth therein. 3 10. Answering paragraph 10 of the TAC, Defendants state that the 4 allegations contain legal conclusions to which no response is required. To the extent 5 a response is required, Defendants admit that Vivendi S.A. has challenged the 6 termination notices regarding This is Spinal Tap because, among other reasons, the 7 works at issue were created as works made for hire; otherwise, Defendants deny the 8 allegations set forth therein. 9 11. Answering paragraph 11 of the TAC, Defendants state that the 10 allegations contain legal conclusions to which no response is required; otherwise, 11 Defendants deny the allegations set forth therein. 12 12. Answering paragraph 12 of the TAC, Defendants state that the 13 allegations contain legal conclusions to which no response is required; otherwise, 14 Defendants deny the allegations set forth therein. 15 13. Answering paragraph 13 of the TAC, Defendants state that the 16 allegations contain legal conclusions to which no response is required; otherwise, 17 Defendants deny the allegations set forth therein. 18 14. Answering paragraph 14 of the TAC, Defendants admit that Harry 19 Shearer performed as “Derek Smalls” in This is Spinal Tap. Defendants are without 20 knowledge or information sufficient to form a belief as to the truth or falsity of the 21 remaining allegations set forth therein, and on that basis, deny them. 22 15. Answering paragraph 15 of the TAC, Defendants admit that 23 Christopher Guest performed as “Nigel Tufnel” in This is Spinal Tap. Defendants 24 are without knowledge or information sufficient to form a belief as to the truth or 25 falsity of the remaining allegations set forth therein, and on that basis, deny them. 26 16. Answering paragraph 16 of the TAC, Defendants admit that Rob 27 Reiner performed as “Marty DiBergi” in This is Spinal Tap. Defendants are without 28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -3ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 5 of 39 Page ID #:976 1 knowledge or information sufficient to form a belief as to the truth or falsity of the 2 remaining allegations set forth therein, and on that basis, deny them. 3 17. Answering paragraph 17 of the TAC, Defendants admit that Michael 4 McKean performed as “David St. Hubbins” in This is Spinal Tap. Defendants are 5 without knowledge or information sufficient to form a belief as to the truth or falsity 6 of the remaining allegations set forth therein, and on that basis, deny them. 7 18. Answering paragraph 18 of the TAC, Defendants admit that This is 8 Spinal Tap contains music, including the songs described in paragraph 18. In 9 addition, Defendants state that the allegations contain legal conclusions to which no 10 response is required; otherwise, Defendants deny the allegations set forth therein. 11 19. Answering paragraph 19 of the TAC, Defendants state that the 12 allegations contain legal conclusions to which no response is required; otherwise, 13 Defendants deny the allegations set forth therein. 14 20. Answering paragraph 20 of the TAC, Defendants state that the 15 allegations contain legal conclusions to which no response is required; otherwise, 16 Defendants deny the allegations set forth therein. 17 21. Answering paragraph 21 of the TAC, Defendants admit that 18 Studiocanal owns rights in This is Spinal Tap and related musical compositions. 19 Vivendi S.A. is the holding company for Canal +, Studiocanal, Universal Music and 20 UMG. Defendants deny the allegation that Vivendi S.A. directly owns or 21 administers any rights in the motion picture This is Spinal Tap or works related 22 thereto. Defendants are without knowledge or information sufficient to form a 23 belief as to the truth or falsity of the allegations set forth therein regarding Universal 24 Music and UMG; otherwise, Defendants deny the allegations set forth therein. 25 22. Answering paragraph 22 of the TAC, Defendants admit that the 26 participation statements issued to STP for accounting periods between 1984 and 27 2017 reported that STP’s cumulative participation in the applicable merchandising 28 rights, pursuant to the governing contract, was $81, but deny that $81 is the sum 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -4ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 6 of 39 Page ID #:977 1 total of all merchandising revenue that was reported to STP during that 2 time. Defendants further admit that the accounting statement issued to STP for the 3 period ending December 31, 2017 stated an unrecouped negative balance of 4 $13,451. Otherwise, Defendants deny the allegations set forth therein. 5 23. Answering paragraph 23 of the TAC, Defendants state that the 6 allegations contain legal conclusions to which no response is required; otherwise, 7 Defendants deny the allegations set forth therein. 8 24. Answering paragraph 24 of the TAC, Defendants are without 9 knowledge or information sufficient to form a belief as to the truth or falsity of the 10 allegations set forth therein, and on that basis, deny them. 11 25. Answering paragraph 25 of the TAC, Defendants are without 12 knowledge or information sufficient to form a belief as to the truth or falsity of the 13 allegations set forth therein, and on that basis, deny them. 14 26. Answering paragraph 26 of the TAC, Defendants are without 15 knowledge or information sufficient to form a belief as to the truth or falsity of the 16 allegations set forth therein, and on that basis, deny them. 17 27. Answering paragraph 27 of the TAC, Defendants are without 18 knowledge or information sufficient to form a belief as to the truth or falsity of the 19 allegations set forth therein, and on that basis, deny them. 20 28. Answering paragraph 28 of the TAC, Defendants are without 21 knowledge or information sufficient to form a belief as to the truth or falsity of the 22 allegations set forth therein, and on that basis, deny them. In addition, Defendants 23 state that the allegations contain legal conclusions to which no response is required; 24 otherwise, Defendants deny the allegations set forth therein. 25 29. Answering paragraph 29 of the TAC, Defendants admit that Vivendi 26 S.A. is a French corporation headquartered in Paris, France; otherwise, Defendants 27 deny the allegations set forth therein. 28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -5ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 7 of 39 Page ID #:978 1 30. Answering paragraph 30 of the TAC, Defendants admit that 2 Studiocanal S.A.S. is a subsidiary of Vivendi S.A. and is headquartered in Issy-les3 Moulineaux, France; otherwise, Defendants deny the allegations set forth therein. 4 31. Answering paragraph 31 of the TAC, Defendants admit that Ron 5 Halpern is an executive at Studiocanal and a resident of Paris, France; otherwise, 6 Defendants deny the allegations set forth therein. 7 32. Answering paragraph 32 of the TAC, Defendants admit that Universal 8 Music and UMG are subsidiaries of Vivendi S.A. Defendants are without 9 knowledge or information sufficient to form a belief as to the truth or falsity of the 10 remaining allegations set forth therein, and on that basis, deny them. 11 33. Answering paragraph 33 of the TAC, Defendants state that the 12 allegations contain legal conclusions to which no response is required; otherwise, 13 Defendants deny the allegations set forth therein. 14 34. Answering paragraph 34 of the TAC, Defendants state that the 15 allegations contain legal conclusions to which no response is required; otherwise, 16 Defendants deny the allegations set forth therein. 17 35. Answering paragraph 35 of the TAC, Defendants state that the 18 allegations contain legal conclusions to which no response is required; otherwise, 19 Defendants deny the allegations set forth therein. 20 36. Answering paragraph 36 of the TAC, Defendants state that the 21 allegations contain legal conclusions to which no response is required; otherwise, 22 Defendants deny the allegations set forth therein. 23 37. Answering paragraph 37 of the TAC, Defendants state that the 24 allegations contain legal conclusions to which no response is required; otherwise, 25 Defendants deny the allegations set forth therein. 26 38. Answering paragraph 38 of the TAC, Defendants admit that an 27 agreement dated May 7, 1982 was entered into with Embassy Pictures regarding the 28 motion picture This is Spinal Tap. Defendants state that to the extent this paragraph 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -6ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 8 of 39 Page ID #:979 1 refers to the document representing that agreement, that document speaks for itself 2 (Dkt. 24-2 at 2-12). Defendants are without knowledge or information sufficient to 3 form a belief as to the truth or falsity of the remaining allegations set forth therein, 4 and on that basis, deny them. In addition, Defendants state that the allegations 5 contain legal conclusions to which no response is required; otherwise, Defendants 6 deny the allegations set forth therein. 7 39. Answering paragraph 39 of the TAC, Defendants admit that an 8 agreement dated May 7, 1982 was entered into with Embassy Pictures regarding the 9 motion picture This is Spinal Tap. Defendants state that to the extent this paragraph 10 refers to the document representing that agreement, that document speaks for itself 11 (Dkt. 24-2 at 2-12). In addition, Defendants state that the allegations contain legal 12 conclusions to which no response is required; otherwise, Defendants deny the 13 allegations set forth therein. 14 40. Answering paragraph 40 of the TAC, Defendants admit that the motion 15 picture This is Spinal Tap was released in 1984. Defendants are without knowledge 16 or information sufficient to form a belief as to the truth or falsity of the remaining 17 allegations set forth therein, and on that basis, deny them. 18 41. Answering paragraph 41 of the TAC, Defendants admit that a 25th 19 Anniversary Blu-Ray DVD of This is Spinal Tap was released in 2009. Defendants 20 are without knowledge or information sufficient to form a belief as to the truth or 21 falsity of the remaining allegations set forth therein, and on that basis, deny them. 22 42. Answering paragraph 42 of the TAC, Defendants state that the 23 allegations contain legal conclusions to which no response is required; otherwise, 24 Defendants deny the allegations set forth therein. 25 43. Answering paragraph 43 of the TAC, Defendants admit that an 26 agreement dated May 7, 1982 was entered into with Embassy Pictures regarding the 27 motion picture This is Spinal Tap. Defendants state that to the extent this paragraph 28 refers to the document representing that agreement and exhibits thereto, those 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -7ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 9 of 39 Page ID #:980 1 documents speak for themselves (Dkt. 24-2 at 2-12, 20; Dkt. 24-3; Dkt. 24-4; Dkt. 2 24-5). In addition, Defendants state that the allegations contain legal conclusions to 3 which no response is required; otherwise, Defendants deny the allegations set forth 4 therein. 5 44. Answering paragraph 44 of the TAC, Defendants admit that an 6 agreement dated May 7, 1982 was entered into with Embassy Pictures regarding the 7 motion picture This is Spinal Tap. Defendants state that to the extent this paragraph 8 refers to the document representing that agreement and letters attached thereto, those 9 documents speak for themselves (Dkt. 24-2 at 2-19). In addition, Defendants state 10 that the allegations contain legal conclusions to which no response is required; 11 otherwise, Defendants deny the allegations set forth therein. 12 45. Answering paragraph 45 of the TAC, Defendants admit that an 13 agreement dated May 7, 1982 was entered into with Embassy Pictures regarding the 14 motion picture This is Spinal Tap. Defendants state that to the extent this paragraph 15 refers to the document representing that agreement, that document speaks for itself 16 (Dkt. 24-2 at 2-12). Defendants deny the allegations set forth in this paragraph that 17 are not exact quotations from the document representing that agreement. 18 46. Answering paragraph 46 of the TAC, Defendants admit that an 19 agreement dated May 7, 1982 was entered into with Embassy Pictures regarding the 20 motion picture This is Spinal Tap. Defendants state that to the extent this paragraph 21 refers to the document representing that agreement, that document speaks for itself 22 (Dkt. 24-2 at 2-12). In addition, Defendants state that the allegations contain legal 23 conclusions to which no response is required; otherwise, Defendants deny the 24 allegations set forth therein. 25 47. Answering paragraph 47 of the TAC, Defendants admit that an 26 agreement dated May 7, 1982 was entered into with Embassy Pictures regarding the 27 motion picture This is Spinal Tap. Defendants state that to the extent this paragraph 28 refers to the document representing that agreement, that document speaks for itself 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -8ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 10 of 39 Page ID #:981 1 (Dkt. 24-2 at 2-12). In addition, Defendants state that the allegations contain legal 2 conclusions to which no response is required; otherwise, Defendants deny the 3 allegations set forth therein. 4 48. Answering paragraph 48 of the TAC, Defendants admit that an 5 agreement dated May 7, 1982 was entered into with Embassy Pictures regarding the 6 motion picture This is Spinal Tap. Defendants state that to the extent this paragraph 7 refers to the document representing that agreement, that document speaks for itself 8 (Dkt. 24-2 at 2-12). In addition, Defendants state that the allegations contain legal 9 conclusions to which no response is required; otherwise, Defendants deny the 10 allegations set forth therein. 11 49. Answering paragraph 49 of the TAC, Defendants admit that an 12 agreement dated May 7, 1982 was entered into with Embassy Pictures regarding the 13 motion picture This is Spinal Tap. Defendants state that to the extent this paragraph 14 refers to the document representing that agreement, that document speaks for itself 15 (Dkt. 24-2 at 2-12). In addition, Defendants state that the allegations contain legal 16 conclusions to which no response is required; otherwise, Defendants deny the 17 allegations set forth therein. 18 50. Answering paragraph 50 of the TAC, Defendants are without 19 knowledge or information sufficient to form a belief as to the truth or falsity of the 20 allegations set forth therein, and on that basis, deny them. 21 51. Answering paragraph 51 of the TAC, Defendants are without 22 knowledge or information sufficient to form a belief as to the truth or falsity of the 23 allegations set forth therein, and on that basis, deny them. In addition, Defendants 24 state that the allegations contain legal conclusions to which no response is required; 25 otherwise, Defendants deny the allegations set forth therein. 26 52. Answering paragraph 52 of the TAC, Defendants are without 27 knowledge or information sufficient to form a belief as to the truth or falsity of the 28 allegations set forth therein, and on that basis, deny them. In addition, Defendants 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -9ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 11 of 39 Page ID #:982 1 state that the allegations contain legal conclusions to which no response is required; 2 otherwise, Defendants deny the allegations set forth therein. 3 53. Answering paragraph 53 of the TAC, Defendants are without 4 knowledge or information sufficient to form a belief as to the truth or falsity of the 5 allegations set forth therein, and on that basis, deny them. In addition, Defendants 6 state that the allegations contain legal conclusions to which no response is required; 7 otherwise, Defendants deny the allegations set forth therein. 8 54. Answering paragraph 54 of the TAC, Defendants are without 9 knowledge or information sufficient to form a belief as to the truth or falsity of the 10 allegations set forth therein, and on that basis, deny them. In addition, Defendants 11 state that the allegations contain legal conclusions to which no response is required; 12 otherwise, Defendants deny the allegations set forth therein. 13 55. Answering paragraph 55 of the TAC, Defendants are without 14 knowledge or information sufficient to form a belief as to the truth or falsity of the 15 allegations set forth therein, and on that basis, deny them. In addition, Defendants 16 state that the allegations contain legal conclusions to which no response is required; 17 otherwise, Defendants deny the allegations set forth therein. 18 56. Answering paragraph 56 of the TAC, Defendants are without 19 knowledge or information sufficient to form a belief as to the truth or falsity of the 20 allegations set forth therein, and on that basis, deny them. In addition, Defendants 21 state that the allegations contain legal conclusions to which no response is required; 22 otherwise, Defendants deny the allegations set forth therein. 23 57. Answering paragraph 57 of the TAC, Defendants are without 24 knowledge or information sufficient to form a belief as to the truth or falsity of the 25 allegations set forth therein, and on that basis, deny them. In addition, Defendants 26 state that the allegations contain legal conclusions to which no response is required; 27 otherwise, Defendants deny the allegations set forth therein. 28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -10ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 12 of 39 Page ID #:983 1 58. Answering paragraph 58 of the TAC, Defendants are without 2 knowledge or information sufficient to form a belief as to the truth or falsity of the 3 allegations set forth therein, and on that basis, deny them. In addition, Defendants 4 state that the allegations contain legal conclusions to which no response is required; 5 otherwise, Defendants deny the allegations set forth therein. 6 59. Answering paragraph 59 of the TAC, Defendants are without 7 knowledge or information sufficient to form a belief as to the truth or falsity of the 8 allegations set forth therein, and on that basis, deny them. In addition, Defendants 9 state that the allegations contain legal conclusions to which no response is required; 10 otherwise, Defendants deny the allegations set forth therein. 11 60. Answering paragraph 60 of the TAC, Defendants are without 12 knowledge or information sufficient to form a belief as to the truth or falsity of the 13 allegations set forth therein, and on that basis, deny them. In addition, Defendants 14 state that the allegations contain legal conclusions to which no response is required; 15 otherwise, Defendants deny the allegations set forth therein. 16 61. Answering paragraph 61 of the TAC, Defendants admit that UMG, 17 Universal Music, and Studiocanal S.A.S. are organized under Vivendi S.A.; 18 otherwise, Defendants deny the allegations set forth therein. 19 62. Answering paragraph 62 of the TAC, Defendants admit that 20 predecessors of Vivendi S.A.’s subsidiaries acquired rights to the motion picture 21 This is Spinal Tap. Defendants are without knowledge or information sufficient to 22 form a belief as to the truth or falsity of the remaining allegations set forth therein, 23 and on that basis, deny them. In addition, Defendants state that the allegations 24 contain legal conclusions to which no response is required; otherwise, Defendants 25 deny the allegations set forth therein. 26 63. Answering paragraph 63 of the TAC, Defendants admit that the 27 accounting statement for the period ending December 31, 2017 states an unrecouped 28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -11ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 13 of 39 Page ID #:984 1 negative balance of $13,451; otherwise, Defendants deny the allegations set forth 2 therein. 3 64. Answering paragraph 64 of the TAC, Defendants admit that an 4 agreement dated May 7, 1982 was entered into with Embassy Pictures regarding the 5 motion picture This is Spinal Tap. Defendants state that to the extent this paragraph 6 refers to the document representing that agreement, that document speaks for itself 7 (Dkt. 24-2 at 2-12). In addition, Defendants state that the allegations contain legal 8 conclusions to which no response is required; otherwise, Defendants deny the 9 allegations set forth therein. 10 65. Answering paragraph 65 of the TAC, Defendants are without 11 knowledge or information sufficient to form a belief as to the truth or falsity of the 12 allegations set forth therein, and on that basis, deny them. In addition, Defendants 13 state that the allegations contain legal conclusions to which no response is required; 14 otherwise, Defendants deny the allegations set forth therein. 15 66. Answering paragraph 66 of the TAC, Defendants state that the 16 allegations contain legal conclusions to which no response is required; otherwise, 17 Defendants deny the allegations set forth therein. 18 67. Answering paragraph 67 of the TAC, Defendants are without 19 knowledge or information sufficient to form a belief as to the truth or falsity of the 20 allegations set forth therein, and on that basis, deny them. 21 68. Answering paragraph 68 of the TAC, Defendants are without 22 knowledge or information sufficient to form a belief as to the truth or falsity of the 23 allegations set forth therein concerning CPP and Shearer’s alleged discovery of facts, 24 and on that basis, deny them. In addition, Defendants state that other allegations 25 contain legal conclusions to which no response is required; otherwise, Defendants 26 deny the allegations set forth therein. 27 28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -12ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 14 of 39 Page ID #:985 1 69. Answering paragraph 69 of the TAC, Defendants state that the 2 allegations contain legal conclusions to which no response is required; otherwise, 3 Defendants deny the allegations set forth therein. 4 70. Answering paragraph 70 of the TAC, Defendants state that the 5 allegations contain legal conclusions to which no response is required; otherwise, 6 Defendants deny the allegations set forth therein. 7 71. Answering paragraph 71 of the TAC, Defendants state that the 8 allegations contain legal conclusions to which no response is required; otherwise, 9 Defendants deny the allegations set forth therein. 10 72. Answering paragraph 72 of the TAC, Defendants state that the 11 allegations contain legal conclusions to which no response is required; otherwise, 12 Defendants deny the allegations set forth therein. 13 73. Answering paragraph 73 of the TAC, Defendants state that the 14 allegations contain legal conclusions to which no response is required; otherwise, 15 Defendants deny the allegations set forth therein. 16 74. Answering paragraph 74 of the TAC, Defendants are without 17 knowledge or information sufficient to form a belief as to the truth or falsity of the 18 allegations set forth therein, and on that basis, deny them. In addition, Defendants 19 state that the allegations contain legal conclusions to which no response is required; 20 otherwise, Defendants deny the allegations set forth therein. 21 75. Answering paragraph 75 of the TAC, Defendants state that the 22 allegations contain legal conclusions to which no response is required; otherwise, 23 Defendants deny the allegations set forth therein. 24 76. Answering paragraph 76 of the TAC, Defendants state that the 25 allegations contain legal conclusions to which no response is required; otherwise, 26 Defendants deny the allegations set forth therein. 27 28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -13ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 15 of 39 Page ID #:986 1 77. Answering paragraph 77 of the TAC, Defendants state that the 2 allegations contain legal conclusions to which no response is required; otherwise, 3 Defendants deny the allegations set forth therein. 4 78. Answering paragraph 78 of the TAC, Defendants state that the 5 allegations contain legal conclusions to which no response is required; otherwise, 6 Defendants deny the allegations set forth therein. 7 79. Answering paragraph 79 of the TAC, Defendants admit that Vivendi 8 S.A. is an integrated media and content company and that its business includes the 9 creation, production, and distribution of content; otherwise, Defendants deny the 10 allegations set forth therein. 11 80. Answering paragraph 80 of the TAC, Defendants state that the 12 allegations contain legal conclusions to which no response is required; otherwise, 13 Defendants deny the allegations set forth therein. 14 81. Answering paragraph 81 of the TAC, Defendants state that the 15 allegations contain legal conclusions to which no response is required; otherwise, 16 Defendants deny the allegations set forth therein. 17 82. Answering paragraph 82 of the TAC, Defendants admit that Vivendi 18 S.A.’s Chief Executive Officer, Arnaud de Puyfontaine, serves as Chairman of 19 Vivendi S.A.’s Management Board and as a member of the Supervisory Board for 20 Canal + Group. Defendants also admit that Vivendi S.A. appointed Lucian Grainge 21 as the new Chairman and Chief Executive Officer of Universal Music Group in 22 2011; otherwise, Defendants deny the allegations set forth therein. 23 83. Answering paragraph 83 of the TAC, Defendants state that the 24 allegations contain legal conclusions to which no response is required; otherwise, 25 Defendants deny the allegations set forth therein. 26 84. Answering paragraph 84 of the TAC, Defendants admit that “Embassy 27 Pictures Joint venture composed of Lear Pictures, Inc.; Perenchio Pictures, Inc.” 28 filed an application with the United States Patent and Trademark Office (USPTO) to 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -14ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 16 of 39 Page ID #:987 1 register the mark “SPINAL TAP” in 1984. Defendants also admit that “Canal + 2 D.A. CORPORATION FRANCE” and “STUDIOCANAL IMAGE JOINT STOCK 3 COMPANY FRANCE” filed applications with the USPTO for the mark “SPINAL 4 TAP” in 2000. Defendants state that this paragraph purports to refer to a USPTO 5 conveyance document, which speaks for itself (Dkt. 62-2). In addition, Defendants 6 state that the allegations contain legal conclusions to which no response is required; 7 otherwise, Defendants deny the allegations set forth therein. 8 85. Answering paragraph 85 of the TAC, Defendants state that this 9 paragraph purports to refer to a trademark registration document for the mark 10 “SPINAL TAP,” which speaks for itself (Dkt. 62-3). In addition, Defendants state 11 that the allegations contain legal conclusions to which no response is required; 12 otherwise, Defendants deny the allegations set forth therein. 13 86. Answering paragraph 86 of the TAC, Defendants state that this 14 paragraph purports to refer to trademark registration documents for the mark 15 “SPINAL TAP,” which speak for themselves (Dkt. 62-4; Dkt. 62-5). In addition, 16 Defendants state that the allegations contain legal conclusions to which no response 17 is required; otherwise, Defendants deny the allegations set forth therein. 18 COUNT I 19 Breach of Contract – May 1982 Agreement 20 (Against Vivendi and Canal) 21 87. Answering paragraph 87 of the TAC, Defendants incorporate herein by 22 reference their responses to the allegations in paragraphs 1 through 86 of the TAC as 23 though fully set forth herein. 24 88. Answering paragraph 88 of the TAC, Defendants admit that Embassy 25 Pictures entered into an agreement dated May 7, 1982 with STP regarding the 26 motion picture This is Spinal Tap. Defendants state that to the extent this paragraph 27 refers to the document representing that agreement, that document speaks for itself 28 (Dkt. 24-2 at 2-12). In addition, Defendants state that the allegations contain legal 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -15ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 17 of 39 Page ID #:988 1 conclusions to which no response is required; otherwise, Defendants deny the 2 allegations set forth therein. 3 89. Answering paragraph 89 of the TAC, Defendants state that the 4 allegations contain legal conclusions to which no response is required; otherwise, 5 Defendants deny the allegations set forth therein. 6 90. Answering paragraph 90 of the TAC, Defendants admit that Embassy 7 Pictures entered into an agreement dated May 7, 1982 with STP regarding the 8 motion picture This is Spinal Tap. Defendants state that to the extent this paragraph 9 refers to the document representing that agreement, that document speaks for itself 10 (Dkt. 24-2 at 2-12). In addition, Defendants state that the allegations contain legal 11 conclusions to which no response is required; otherwise, Defendants deny the 12 allegations set forth therein. 13 91. Answering paragraph 91 of the TAC, Defendants admit that Embassy 14 Pictures entered into an agreement, dated May 7, 1982, with STP regarding the 15 motion picture This is Spinal Tap. Defendants state that to the extent this paragraph 16 refers to the document representing that agreement and letters attached thereto, those 17 documents speak for themselves (Dkt. 24-2 at 2-19). In addition, Defendants state 18 that the allegations contain legal conclusions to which no response is required; 19 otherwise, Defendants deny the allegations set forth therein. 20 92. Answering paragraph 92 of the TAC, Defendants state that the 21 allegations contain legal conclusions to which no response is required; otherwise, 22 Defendants deny the allegations set forth therein. 23 93. Answering paragraph 93 of the TAC, Defendants state that the 24 allegations contain legal conclusions to which no response is required; otherwise, 25 Defendants deny the allegations set forth therein. 26 94. Answering paragraph 94 of the TAC, Defendants state that the 27 allegations contain legal conclusions to which no response is required; otherwise, 28 Defendants deny the allegations set forth therein. 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -16ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 18 of 39 Page ID #:989 1 COUNT II 2 Breach of the Implied Covenant of Good Faith and Fair Dealing – May 1982 3 Agreement 4 (Against Vivendi and Canal) 5 95. Answering paragraph 95 of the TAC, Defendants incorporate herein by 6 reference their responses to the allegations in paragraphs 1 through 94 of the TAC as 7 though fully set forth herein. 8 96. Answering paragraph 96 of the TAC, Defendants state that the 9 allegations contain legal conclusions to which no response is required; otherwise, 10 Defendants deny the allegations set forth therein. 11 97. Answering paragraph 97 of the TAC, Defendants state that the 12 allegations contain legal conclusions to which no response is required; otherwise, 13 Defendants deny the allegations set forth therein. 14 98. Answering paragraph 98 of the TAC, Defendants state that the 15 allegations contain legal conclusions to which no response is required; otherwise, 16 Defendants deny the allegations set forth therein. 17 COUNT III 18 Breach of Contract – PolyGram Agreement 19 (Against Universal Music and UMG) 20 99. Answering paragraph 99 of the TAC, Defendants incorporate herein by 21 reference their responses to the allegations in paragraphs 1 through 98 of the TAC as 22 though fully set forth herein. 23 100. Answering paragraph 100 of the TAC, Defendants are without 24 knowledge or information sufficient to form a belief as to the truth or falsity of the 25 allegations set forth therein, and on that basis, deny them. In addition, Defendants 26 state that the allegations contain legal conclusions to which no response is required; 27 otherwise, Defendants deny the allegations set forth therein. 28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -17ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 19 of 39 Page ID #:990 1 101. Answering paragraph 101 of the TAC, Defendants are without 2 knowledge or information sufficient to form a belief as to the truth or falsity of the 3 allegations set forth therein, and on that basis, deny them. In addition, Defendants 4 state that the allegations contain legal conclusions to which no response is required; 5 otherwise, Defendants deny the allegations set forth therein. 6 102. Answering paragraph 102 of the TAC, Defendants are without 7 knowledge or information sufficient to form a belief as to the truth or falsity of the 8 allegations set forth therein, and on that basis, deny them. In addition, Defendants 9 state that the allegations contain legal conclusions to which no response is required; 10 otherwise, Defendants deny the allegations set forth therein. 11 103. Answering paragraph 103 of the TAC, Defendants are without 12 knowledge or information sufficient to form a belief as to the truth or falsity of the 13 allegations set forth therein, and on that basis, deny them. In addition, Defendants 14 state that the allegations contain legal conclusions to which no response is required; 15 otherwise, Defendants deny the allegations set forth therein. 16 104. Answering paragraph 104 of the TAC, Defendants are without 17 knowledge or information sufficient to form a belief as to the truth or falsity of the 18 allegations set forth therein, and on that basis, deny them. In addition, Defendants 19 state that the allegations contain legal conclusions to which no response is required; 20 otherwise, Defendants deny the allegations set forth therein. 21 105. Answering paragraph 105 of the TAC, Defendants state that the 22 allegations contain legal conclusions to which no response is required; otherwise, 23 Defendants deny the allegations set forth therein. 24 106. Answering paragraph 106 of the TAC, Defendants are without 25 knowledge or information sufficient to form a belief as to the truth or falsity of the 26 allegations set forth therein, and on that basis, deny them. In addition, Defendants 27 state that the allegations contain legal conclusions to which no response is required; 28 otherwise, Defendants deny the allegations set forth therein. 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -18ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 20 of 39 Page ID #:991 1 107. Answering paragraph 107 of the TAC, Defendants state that the 2 allegations contain legal conclusions to which no response is required; otherwise, 3 Defendants deny the allegations set forth therein. 4 COUNT IV 5 Breach of the Implied Covenant of Good Faith and Fair Dealing – PolyGram 6 Agreement 7 (Against UMG and Universal Music) 8 108. Answering paragraph 108 of the TAC, Defendants incorporate herein 9 by reference their responses to the allegations in paragraphs 1 through 107 of the 10 TAC as though fully set forth herein. 11 109. Answering paragraph 109 of the TAC, Defendants are without 12 knowledge or information sufficient to form a belief as to the truth or falsity of the 13 allegations set forth therein, and on that basis, deny them. In addition, Defendants 14 state that the allegations contain legal conclusions to which no response is required; 15 otherwise, Defendants deny the allegations set forth therein. 16 110. Answering paragraph 110 of the TAC, Defendants are without 17 knowledge or information sufficient to form a belief as to the truth or falsity of the 18 allegations set forth therein, and on that basis, deny them. In addition, Defendants 19 state that the allegations contain legal conclusions to which no response is required; 20 otherwise, Defendants deny the allegations set forth therein. 21 111. Answering paragraph 111 of the TAC, Defendants state that the 22 allegations contain legal conclusions to which no response is required; otherwise, 23 Defendants deny the allegations set forth therein. 24 25 26 27 28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -19ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 21 of 39 Page ID #:992 1 COUNT V 2 Fraud by Concealment and Misrepresentation 3 (Against All Defendants) 4 112. Answering paragraph 112 of the TAC, Defendants incorporate herein 5 by reference their responses to the allegations in paragraphs 1 through 111 of the 6 TAC as though fully set forth herein. 7 113. Answering paragraph 113 of the TAC, Defendants admit that 8 accounting statements have been issued to STP. In addition, Defendants state that 9 the allegations contain legal conclusions to which no response is required; otherwise, 10 Defendants deny the allegations set forth therein. 11 114. Answering paragraph 114 of the TAC, Defendants state that the 12 allegations contain legal conclusions to which no response is required; otherwise, 13 Defendants deny the allegations set forth therein. 14 115. Answering paragraph 115 of the TAC, Defendants state that the 15 allegations contain legal conclusions to which no response is required; otherwise, 16 Defendants deny the allegations set forth therein. 17 116. Answering paragraph 116 of the TAC, Defendants state that the 18 allegations contain legal conclusions to which no response is required; otherwise, 19 Defendants deny the allegations set forth therein. 20 117. Answering paragraph 117 of the TAC, Defendants state that the 21 allegations contain legal conclusions to which no response is required; otherwise, 22 Defendants deny the allegations set forth therein. 23 118. Answering paragraph 118 of the TAC, Defendants are without 24 knowledge or information sufficient to form a belief as to the truth or falsity of the 25 allegations set forth therein, and on that basis, deny them. In addition, Defendants 26 state that the allegations contain legal conclusions to which no response is required; 27 otherwise, Defendants deny the allegations set forth therein. 28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -20ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 22 of 39 Page ID #:993 1 119. Answering paragraph 119 of the TAC, Defendants state that the 2 allegations contain legal conclusions to which no response is required; otherwise, 3 Defendants deny the allegations set forth therein. 4 120. Answering paragraph 120 of the TAC, Defendants state that the 5 allegations contain legal conclusions to which no response is required; otherwise, 6 Defendants deny the allegations set forth therein. 7 121. Answering paragraph 121 of the TAC, Defendants state that the 8 allegations contain legal conclusions to which no response is required; otherwise, 9 Defendants deny the allegations set forth therein. 10 122. Answering paragraph 122 of the TAC, Defendants state that the 11 allegations contain legal conclusions to which no response is required; otherwise, 12 Defendants deny the allegations set forth therein. 13 123. Answering paragraph 123 of the TAC, Defendants state that the 14 allegations contain legal conclusions to which no response is required; otherwise, 15 Defendants deny the allegations set forth therein. 16 COUNT VI 17 For an Accounting 18 (Against All Defendants) 19 124. Answering paragraph 124 of the TAC, Defendants incorporate herein 20 by reference their responses to the allegations in paragraphs 1 through 123 of the 21 TAC as though fully set forth herein. 22 125. Answering paragraph 125 of the TAC, Defendants state that the 23 allegations contain legal conclusions to which no response is required; otherwise, 24 Defendants deny the allegations set forth therein. 25 126. Answering paragraph 126 of the TAC, Defendants state that the 26 allegations contain legal conclusions to which no response is required; otherwise, 27 Defendants deny the allegations set forth therein. 28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -21ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 23 of 39 Page ID #:994 1 127. Answering paragraph 127 of the TAC, Defendants state that the 2 allegations contain legal conclusions to which no response is required; otherwise, 3 Defendants deny the allegations set forth therein. 4 128. Answering paragraph 128 of the TAC, Defendants state that the 5 allegations contain legal conclusions to which no response is required; otherwise, 6 Defendants deny the allegations set forth therein. 7 COUNT VII 8 Declaratory Judgment of Trademark Rights, 28 U.S.C. § 2201, et seq. 9 (Against Vivendi and Canal) 10 129. Answering paragraph 129 of the TAC, Defendants incorporate herein 11 by reference their responses to the allegations in paragraphs 1 through 128 of the 12 TAC as though fully set forth herein. 13 130. Answering paragraph 130 of the TAC, Defendants admit that 14 “Embassy Pictures Joint venture composed of Lear Pictures, Inc.; Perenchio Pictures, 15 Inc.” filed an application for trademark registration with the United States Patent 16 and Trademark Office (“USPTO”) for the mark “SPINAL TAP” in 1984 for the 17 Goods and Services category of “Entertainment Services Rendered by a Musical 18 Group.” Defendants state that to the extent this paragraph refers to trademark 19 registration documents, those documents speak for themselves (Dkt. 62-1). In 20 addition, Defendants state that the allegations contain legal conclusions to which no 21 response is required; otherwise, Defendants deny the allegations set forth therein. 22 131. Answering paragraph 131 of the TAC, Defendants admit that “Canal + 23 D.A. CORPORATION FRANCE” filed applications for trademark registration with 24 the USPTO for the mark “SPINAL TAP” in 2000; otherwise, Defendants deny the 25 allegations set forth therein. 26 132. Answering paragraph 132 of the TAC, Defendants state that this 27 paragraph purports to refer to a USPTO conveyance document, which speaks for 28 itself (Dkt. 62-2). In addition, Defendants state that the allegations contain legal 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -22ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 24 of 39 Page ID #:995 1 conclusions to which no response is required; otherwise, Defendants deny the 2 allegations set forth therein. 3 133. Answering paragraph 133 of the TAC, Defendants state that the 4 allegations contain legal conclusions to which no response is required; otherwise, 5 Defendants deny the allegations set forth therein. 6 134. Answering paragraph 134 of the TAC, Defendants state that this 7 paragraph purports to refer to a trademark registration document, which speaks for 8 itself (Dkt. 62-3). In addition, Defendants state that the allegations contain legal 9 conclusions to which no response is required; otherwise, Defendants deny the 10 allegations set forth therein. 11 135. Answering paragraph 135 of the TAC, Defendants state that the 12 allegations contain legal conclusions to which no response is required; otherwise, 13 Defendants deny the allegations set forth therein. 14 136. Answering paragraph 136 of the TAC, Defendants state that this 15 paragraph purports to refer to trademark registration documents for the mark 16 “SPINAL TAP,” which speak for themselves (Dkt. 62-4; Dkt. 62-5). In addition, 17 Defendants state that the allegations contain legal conclusions to which no response 18 is required; otherwise, Defendants deny the allegations set forth therein. 19 137. Answering paragraph 137 of the TAC, Defendants state that the 20 allegations contain legal conclusions to which no response is required; otherwise, 21 Defendants deny the allegations set forth therein. 22 138. Answering paragraph 138 of the TAC, Defendants state that the 23 allegations contain legal conclusions to which no response is required; otherwise, 24 Defendants deny the allegations set forth therein. 25 26 27 28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -23ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 25 of 39 Page ID #:996 1 COUNT VIII 2 Declaratory Judgment of Copyright Reversion, 17 U.S.C. § 203 3 (Against Vivendi, Canal, and Universal Music Group) 4 139. Answering paragraph 139 of the TAC, Defendants incorporate herein 5 by reference their responses to the allegations in paragraphs 1 through 138 of the 6 TAC as though fully set forth herein. 7 140. Answering paragraph 140 of the TAC, Defendants state that the 8 allegations contain legal conclusions to which no response is required; otherwise, 9 Defendants deny the allegations set forth therein. 10 141. Answering paragraph 141 of the TAC, Defendants state that the 11 allegations contain legal conclusions to which no response is required; otherwise, 12 Defendants deny the allegations set forth therein. 13 142. Answering paragraph 142 of the TAC, Defendants state that this 14 paragraph purports to refer to a document titled “Instrument of Transfer,” which 15 speaks for itself (Dkt. 24-2 at 20). In addition, Defendants state that the allegations 16 contain legal conclusions to which no response is required; otherwise, Defendants 17 deny the allegations set forth therein. 18 143. Answering paragraph 143 of the TAC, Defendants admit that 19 Studiocanal S.A.S. and Universal Music Group own rights that were assigned to 20 Embassy Productions under the May 7, 1982 Agreement, including copyrights in 21 works related to This is Spinal Tap. In addition, Defendants state that the 22 allegations contain legal conclusions to which no response is required; otherwise, 23 Defendants deny the allegations set forth therein. 24 144. Answering paragraph 144 of the TAC, Defendants admit that 25 Studiocanal received a document titled “Notice of Termination pursuant to Section 26 203 of the Copyright Act (P.L. 94-553 (90 Stat. 2541),” purportedly prepared on 27 behalf of Harry Shearer regarding the motion picture This is Spinal Tap and related 28 musical compositions. In addition, Defendants state that the allegations contain 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -24ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 26 of 39 Page ID #:997 1 legal conclusions to which no response is required; otherwise, Defendants deny the 2 allegations set forth therein. 3 145. Answering paragraph 145 of the TAC, Defendants state that this 4 paragraph purports to refer to Vivendi S.A.’s February 28, 2017 motion to dismiss, 5 which speaks for itself (Dkt. 24). In addition, Defendants state that the allegations 6 contain legal conclusions to which no response is required; otherwise, Defendants 7 deny the allegations set forth therein. 8 146. Answering paragraph 146 of the TAC, Defendants state that the 9 allegations contain legal conclusions to which no response is required; otherwise, 10 Defendants deny the allegations set forth therein. 11 147. Answering paragraph 147 of the TAC, Defendants state that the 12 allegations contain legal conclusions to which no response is required; otherwise, 13 Defendants deny the allegations set forth therein. 14 15 RELIEF REQUESTED 148. Defendants deny that Plaintiffs are entitled to any relief from 16 Defendants or the Court. 17 18 AFFIRMATIVE DEFENSES Defendants assert the following affirmative defenses as to each claim alleged 19 in the TAC without assuming the burden of proof on such defenses that would 20 otherwise fall on Plaintiffs. Defendants reserve the right to supplement and/or 21 amend these defenses, including to assert new defenses, as discovery is conducted. 22 FIRST AFFIRMATIVE DEFENSE 23 (Lack of Standing) 24 149. Plaintiffs are not entitled to relief because they have not appropriately 25 pled, shown, nor proven adequate standing for the relief sought. 26 SECOND AFFIRMATIVE DEFENSE 27 28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -25ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 27 of 39 Page ID #:998 1 2 (Lack of Personal Jurisdiction) 150. Plaintiffs’ claims are barred in whole or in part due to lack of personal 3 jurisdiction over Defendants. 4 THIRD AFFIRMATIVE DEFENSE 5 (17 U.S.C. § 203(a) – No Termination for Works Made for Hire) 6 151. Plaintiffs are not entitled to a declaration that their copyright 7 termination notices are valid and effective and do not infringe Defendants’ 8 copyrights because the works at issue are works made for hire. 9 FOURTH AFFIRMATIVE DEFENSE 10 (Waiver, Acquiescence, Laches, Estoppel) 11 152. Plaintiffs’ claims are barred in whole or in part by the doctrines of 12 waiver, acquiescence, laches, and estoppel. 13 FIFTH AFFIRMATIVE DEFENSE 14 (Unclean Hands) 15 153. Plaintiffs’ claims are barred in whole or in part by the doctrine of 16 unclean hands. 17 SIXTH AFFIRMATIVE DEFENSE 18 (Statute of Limitations) 19 154. Plaintiffs’ claims are barred in whole or in part by the applicable statute 20 of limitations established by law and by the terms of Plaintiffs’ 1982 agreement with 21 Embassy Pictures. 22 SEVENTH AFFIRMATIVE DEFENSE 23 (Justification) 24 155. Plaintiffs’ claims are barred in whole or in part because the conduct 25 underlying Plaintiffs’ claims was legally justified. 26 27 28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -26ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 28 of 39 Page ID #:999 1 EIGHTH AFFIRMATIVE DEFENSE 2 (Good Faith) 3 156. Plaintiffs’ requests for punitive damages are barred in whole or in part 4 because all of Defendants’ acts were undertaken in good faith and because Plaintiffs 5 fail to plead facts showing an entitlement to an award of punitive damages. 6 NINTH AFFIRMATIVE DEFENSE 7 (Improper Party) 8 157. Plaintiffs’ claims against Vivendi S.A. are barred in whole or in part 9 because Plaintiffs improperly name Vivendi S.A. as a defendant. Vivendi S.A. is 10 not a party to the contracts at issue, owes no contractual obligations to Plaintiffs, and 11 is not the owner or successor-in-interest to any copyrights or trademark rights 12 challenged by Plaintiffs. 13 14 ADDITIONAL DEFENSES Defendants reserve the right to assert additional defenses. 15 PRAYER FOR RELIEF 16 WHEREFORE, Defendants pray for judgment as follows: 17 A. That Plaintiffs take nothing by way of the TAC; 18 B. That the TAC, and each of its claims for relief, be dismissed with 19 20 prejudice; C. 21 22 23 That Defendants be awarded their costs of suit incurred herein, including attorneys’ fees and expenses; and D. For such other and further relief as the Court deems just and proper. [Remainder of Page Intentionally Left Blank] 24 25 26 27 28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -27ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 29 of 39 Page ID #:1000 COUNTERCLAIMS 1 2 Counterclaim Plaintiff Studiocanal brings these counterclaims against 3 Counterclaim Defendants Century of Progress Productions, Christopher Guest, Rob 4 Reiner Productions, and United Heathen (individually and collectively in their 5 capacity as the former owners of the now-dissolved Spinal Tap Productions 6 (“STP”)), as well as Harry Shearer, Rob Reiner, and Michael McKean (together, 7 “Counterclaim Defendants”). Studiocanal reserves the right to assert additional 8 counterclaims, as warranted by facts revealed through investigation and discovery. 9 10 NATURE OF COUNTERCLAIMS 1. These counterclaims seek a declaratory judgment that the motion 11 picture This is Spinal Tap, and all other motion picture-related works created in 12 conjunction therewith, including but not limited to derivative works prepared 13 therefrom (the “Spinal Tap Works”), are works made for hire and thus, to the extent 14 entitled to protection under the U.S. Copyright Act, are ineligible for termination 15 under 17 U.S.C. § 203, such that Counterclaim Defendants’ purported notices of 16 such terminations are invalid and ineffective. 17 2. These counterclaims also seek a declaratory judgment that Studiocanal 18 continues to own, and has not abandoned, common law trademark rights to the 19 “SPINAL TAP” mark. THE PARTIES 20 21 3. Counterclaim Plaintiff Studiocanal S.A.S. is a corporation organized 22 and existing under the laws of France, and has a principal place of business at 1 23 place du Spectacle, 92863 Issy-les-Moulineaux Cedex 9, France. 24 4. Upon information and belief, Counterclaim Defendant Century of 25 Progress Productions is a California corporation with its principal place of business 26 in Sherman Oaks, California. 27 5. Upon information and belief, Counterclaim Defendant Christopher 28 Guest is a citizen of California, residing in Los Angeles. 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -28ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 30 of 39 Page ID #:1001 1 6. Upon information and belief, Counterclaim Defendant Rob Reiner 2 Productions is a California corporation with its principal place of business in 3 Beverly Hills, California. 4 7. Upon information and belief, Counterclaim Defendant United Heathen 5 is a California corporation with its principal place of business in Woodland Hills, 6 California. 7 8. Upon information and belief, Counterclaim Defendant Harry Shearer is 8 a citizen of Louisiana, residing in New Orleans. 9 9. Upon information and belief, Counterclaim Defendant Rob Reiner is a 10 citizen of California, residing in Los Angeles. 11 10. Upon information and belief, Counterclaim Defendant Michael 12 McKean is a citizen of California, residing in Los Angeles. JURISDICTION AND VENUE 13 14 11. This Court has subject matter jurisdiction over the counterclaims under 15 35 U.S.C. §§ 2201 and 2202 as a declaratory judgment action, and under 28 U.S.C. 16 §§ 1331 and 1338 as an action arising under the United States Copyright Laws, Title 17 17 of the United States Code. 18 12. This Court has personal jurisdiction over Counterclaim Defendants 19 because Counterclaim Defendants have commenced the underlying copyright, 20 trademark, breach of contract, and fraud action in this Court, as set forth in the TAC. 21 13. Venue lies in this Court under 28 U.S.C. §§ 1391(b) and 1400(a). 22 14. Jurisdiction and venue are proper in this Court because Counterclaim 23 Defendants contractually consented to submit to the jurisdiction of the District Court 24 of the Central District of California. FACTUAL ALLEGATIONS 25 26 15. In 1982, Counterclaim Defendants entered into agreements with 27 Studiocanal’s predecessor, Embassy Pictures, to create the Spinal Tap Works. 28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -29ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 31 of 39 Page ID #:1002 1 16. Counterclaim Defendants performed services pursuant to these 2 agreements with Embassy Pictures, which included contributions towards the 3 creation of the Spinal Tap Works. 4 17. Counterclaim Defendants’ contributions towards the creation of the 5 Spinal Tap Works were rendered within the course and scope of their employment. 6 18. Certificates of Authorship, signed by the Counterclaim Defendants, 7 were filed with the United States Copyright Office regarding the Spinal Tap Works. 8 The Certificates of Authorship state that each Counterclaim Defendant rendered 9 such services, and created the works for which copyright registration was being 10 sought, as “an-employee-for-hire.” The United States Copyright Office’s Public 11 Catalog also lists the “Authorship on Application” for the motion picture This is 12 Spinal Tap as “Embassy Pictures, employer for hire.” 13 19. The motion picture This is Spinal Tap was released in the United States 14 in 1984, along with accompanying musical compositions, including “Tonight I’m 15 Gonna Rock You Tonight,” “Stonehenge,” “Big Bottom,” and “Sex Farm,” among 16 others. 17 20. The soundtrack to the This is Spinal Tap motion picture, titled “Spinal 18 Tap,” was also released in 1984, and was rereleased in 2000 with additional tracks. 19 21. Studiocanal’s predecessors, and later Studiocanal, arranged for and 20 authorized the sale of “Spinal Tap” merchandise in conjunction with the motion 21 picture, including clothing, action figures, stickers and other accessories. 22 22. Studiocanal is the successor-in-interest to the copyrights in the Spinal 23 Tap Works. 24 23. As part of their efforts to protect and uphold their rights in the Spinal 25 Tap Works, Studiocanal’s predecessors-in-interest filed for, and were granted, 26 federal trademark registrations for the mark “SPINAL TAP.” For example, 27 Studiocanal’s predecessors-in-interest owned federal trademark registrations bearing 28 Registration Nos. 1311537, 2463576, 2499728, 2867023, 2881983, 2881984, and 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -30ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 32 of 39 Page ID #:1003 1 4717603 for the mark “SPINAL TAP” in connection with entertainment services 2 rendered by a musical group, entertainment services in the nature of live musical 3 performances by a group, videotape and film production of live musical 4 performances, series of motion picture films, printed matter and paper goods, certain 5 clothing, certain electronics, and certain merchandising, among other categories of 6 goods and services. 7 24. In 1984, “Embassy Pictures Joint venture composed of Lear Pictures, 8 Inc.; Perenchio Pictures, Inc.” filed an application for trademark registration with 9 the United States Patent and Trademark Office (“USPTO”) for the mark “SPINAL 10 TAP,” which was approved. Later, in 2000, “Canal + D.A. CORPORATION 11 FRANCE” filed applications for trademark registration with the USPTO for the 12 mark “SPINAL TAP,” all but one of which were also approved. 13 25. In 2002, Studiocanal’s predecessors-in-interest conveyed the rights in 14 these federally registered trademarks to Studiocanal Image, which subsequently 15 merged into Studiocanal. 16 26. The conveyance of these federally registered trademarks to 17 Studiocanal’s predecessors-in-interest was filed with the USPTO (see Dkt. 62-2). 18 One reason the conveyance was so filed was that Studiocanal’s predecessors-in19 interest intended to, and did, continue to use the “SPINAL TAP” mark in commerce, 20 as did Studiocanal upon merging with its predecessors-in-interest. 21 27. Since 1984, Studiocanal’s predecessors-in-interest, and thereafter 22 Studiocanal, have continuously used the “SPINAL TAP” mark in commerce for 23 categories of goods and services including entertainment services rendered by a 24 musical group, entertainment services in the nature of live musical performances by 25 a group, videotape and film production of live musical performances, series of 26 motion picture films, printed matter and paper goods, and certain merchandising. 27 Due in large part to Studiocanal’s predecessors-in-interest and Studiocanal’s 28 expenditures of substantial time and money advertising and promoting “SPINAL 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -31ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 33 of 39 Page ID #:1004 1 TAP” in the United States, “SPINAL TAP” has come to be associated with 2 Studiocanal’s products and services and has acquired secondary meaning in the 3 minds of U.S. consumers. 4 28. Counterclaim Defendants seek a declaratory judgment in the TAC 5 “confirming the validity and effectiveness of the copyright termination notices” 6 regarding the Spinal Tap Works, and “confirming that their use of the SPINAL TAP 7 marks in connection with the services and goods set forth in CPP’s trademark 8 applications does not infringe any abandoned trademark rights of Defendants.” 9 29. As works made for hire, the Spinal Tap Works are not subject to 17 10 U.S.C. § 203’s termination of transfer provisions, and Studiocanal continues to own, 11 and has not abandoned, its common law trademark rights in the “SPINAL TAP” 12 mark. 13 30. Accordingly, a real and justiciable controversy exists regarding the 14 status of Studiocanal’s copyrights in the Spinal Tap Works and trademark rights in 15 the “SPINAL TAP” mark. 16 31. The controversy has sufficient immediacy and reality to warrant the 17 issuance of a declaratory judgment, which is necessary and appropriate at this time 18 so that Studiocanal may continue to enforce its rights and perform its duties with 19 respect to its copyrights in the Spinal Tap Works, and may continue to enforce its 20 rights and perform its duties with respect to its trademark rights in the “SPINAL 21 TAP” mark, free of the cloud cast over these rights caused by the received notices of 22 termination of transfer and Counterclaim Defendants’ assertion of trademark rights 23 over the “SPINAL TAP” mark. 24 25 26 27 28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -32ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 34 of 39 Page ID #:1005 1 COUNTERCLAIMS FOR RELIEF 2 COUNT I 3 Declaratory Judgment of Work Made for Hire 4 and No Copyright Reversion, 17 U.S.C. § 203(a) 5 (Against All Counterclaim Defendants) 6 32. Studiocanal repeats and incorporates by reference the allegations 7 contained in counterclaim paragraphs 1-31 as if fully set forth herein. 8 33. Counterclaim Defendants entered into agreements with Embassy 9 Pictures to create the Spinal Tap Works. As part of these agreements, Counterclaim 10 Defendants signed Inducement Letters that specified that the Counterclaim 11 Defendants were employees. 12 34. The services of each of the Counterclaim Defendants were provided 13 pursuant to the applicable collective bargaining agreements of one or more unions 14 (or “guilds,” as such unions are commonly known within the motion picture 15 industry), namely, the Writers Guild of America (West), the Screen Actors Guild, 16 and the Directors Guild of America. By law, such unions can act on behalf of only 17 employees (as opposed to independent contractors) and by law, the services of such 18 persons to any signatory to the applicable collective bargaining agreement are 19 employment services. 20 35. Counterclaim Defendants performed services under these agreements in 21 connection with the creation of the Spinal Tap Works. 22 36. Counterclaim Defendants’ services in connection with the creation of 23 the Spinal Tap Works were rendered within the course and scope of their 24 employment to furnish such services. 25 37. The Certificates of Authorship filed with the United States Copyright 26 Office and signed by Counterclaim Defendants for works related to the motion 27 picture This is Spinal Tap state that each Counterclaim Defendant provided his 28 services on an “an-employee-for-hire” basis. 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -33ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 35 of 39 Page ID #:1006 1 38. The United States Copyright Office’s Public Catalog lists the 2 “Authorship on Application” for the motion picture This is Spinal Tap as “Embassy 3 Pictures, employer for hire.” 4 39. Section 203(a) of the Copyright Act (17 U.S.C. § 203(a)) grants limited 5 rights to terminate copyright transfers and licenses granted by an author, but states 6 that a “work made for hire” is not subject to such termination. 7 40. Counterclaim Defendants have no right to terminate any copyrights in 8 the Spinal Tap Works because those works are “works made for hire.” 9 41. Studiocanal received a document titled “Notice of Termination 10 pursuant to Section 203 of the Copyright Act (P.L. 94-553 (90 Stat. 2541),” 11 purportedly prepared on behalf of Harry Shearer regarding the motion picture This is 12 Spinal Tap and certain related musical compositions. Studiocanal did not receive 13 any notices of termination purportedly prepared on behalf of any of the other 14 Counterclaim Defendants. Counterclaim Defendants seek declaratory judgment in 15 the TAC “confirming the validity and effectiveness of the copyright termination 16 notices.” As such, there is an actual and justiciable controversy between 17 Counterclaim Plaintiff Studiocanal, on the one hand, and Counterclaim Defendants, 18 on the other hand, as to whether Counterclaim Defendants may terminate any 19 transfer or license of rights regarding the Spinal Tap Works, including the Spinal 20 Tap motion picture. 21 42. Studiocanal therefore seeks a declaratory judgment pursuant to 28 22 U.S.C. § 2201 and Federal Rule of Civil Procedure 57 confirming the Spinal Tap 23 Works, including the motion picture This is Spinal Tap: (a) are works made for hire, 24 (b) are ineligible for termination under Section 203, and (c) that any notices of 25 termination of transfer regarding the Spinal Tap Works are invalid and ineffective. 26 43. The controversy has sufficient immediacy and reality to warrant the 27 issuance of a declaratory judgment. A judicial declaration is necessary and 28 appropriate at this time so that Studiocanal may continue to enforce its rights and 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -34ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 36 of 39 Page ID #:1007 1 perform its duties with respect to its copyrights in the Spinal Tap Works, free of the 2 cloud cast over these works caused by the received notice of termination of transfer. 3 44. Studiocanal expressly reserves the right to assert additional grounds to 4 establish the work-made-for-hire-status of the motion picture This is Spinal Tap and 5 works created in conjunction therewith and other grounds to bar Counterclaim 6 Defendants from terminating any copyright transfer or license regarding the Spinal 7 Tap Works after having the ability to conduct discovery. 8 COUNT II 9 Declaratory Judgment of Common Law Trademarks 10 and No Abandonment 11 (Against All Counterclaim Defendants) 12 45. Studiocanal repeats and incorporates by reference the allegations 13 contained in counterclaim paragraphs 1-31 as if fully set forth herein. 14 46. In 1984, Studiocanal’s predecessors-in-interest became the owners of 15 federal trademark registrations bearing Registration Nos. 1311537, 2463576, 16 2499728, 2867023, 2881983, 2881984, and 4717603 for the mark “SPINAL TAP” 17 in connection with entertainment services rendered by a musical group, 18 entertainment services in the nature of live musical performances by a group, 19 videotape and film production of live musical performances, series of motion picture 20 films, printed matter and paper goods, certain clothing, certain electronics, and 21 certain merchandising, among other categories of goods and services. 22 47. In 2002, Studiocanal’s predecessors-in-interest conveyed the rights in 23 these federally registered trademarks to Studiocanal Image, which subsequently 24 merged into Studiocanal. 25 48. The conveyance of these federally registered trademarks to 26 Studiocanal’s predecessors-in-interest was filed with the USPTO (see Dkt. 62-2). 27 One reason the conveyance was so filed was that Studiocanal’s predecessors-in28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -35ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 37 of 39 Page ID #:1008 1 interest intended to, and did, continue to use the “SPINAL TAP” mark in commerce, 2 as did Studiocanal upon merging with its predecessors-in-interest. 3 49. Since 1984, Studiocanal’s predecessors-in-interest, and thereafter 4 Studiocanal, have used the “SPINAL TAP” mark in commerce, including in 5 connection with entertainment services rendered by a musical group, entertainment 6 services in the nature of live musical performances by a group, videotape and film 7 production of live musical performances, series of motion picture films, printed 8 matter and paper goods, and certain merchandising, and have continuously done so 9 through the present. Studiocanal’s predecessors-in-interest and Studiocanal have 10 spent substantial time and money advertising and promoting “SPINAL TAP” in the 11 United States. Due in large part to these efforts, “SPINAL TAP” has come to be 12 associated with Studiocanal’ products and services and has acquired secondary 13 meaning in the minds of U.S. consumers. 14 50. Studiocanal is the rightful owner of the “SPINAL TAP” mark, 15 registrations, and common law trademark rights, and has the exclusive right to use 16 the mark in commerce in the United States for the goods and services described 17 herein. 18 51. Counterclaim Defendants seek declaratory judgment in the TAC 19 “confirming that their use of the SPINAL TAP marks in connection with the 20 services and goods set forth in CPP’s trademark applications does not infringe any 21 abandoned trademark rights of Defendants.” 22 52. Studiocanal continues to own, and has not abandoned, common law 23 trademark rights in the “SPINAL TAP” mark. As such, there is an actual and 24 justiciable controversy between Counterclaim Plaintiff Studiocanal, on the one hand, 25 and Counterclaim Defendants, on the other hand, as to whether Studiocanal owns, 26 and did not abandon, trademark rights in the “SPINAL TAP” mark. 27 53. Studiocanal therefore seeks a declaratory judgment pursuant to 28 28 U.S.C. § 2201 and Federal Rule of Civil Procedure 57 confirming Studiocanal 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -36ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 38 of 39 Page ID #:1009 1 continues to own, and has not abandoned, common law trademark rights in the 2 “SPINAL TAP” mark. 3 54. The controversy has sufficient immediacy and reality to warrant the 4 issuance of a declaratory judgment. A judicial declaration is necessary and 5 appropriate at this time so that Studiocanal may continue to enforce its rights and 6 perform its duties with respect to its trademarks rights in the “SPINAL TAP” mark, 7 free of the cloud cast over these rights caused by Counterclaim Defendants’ filing of 8 their own federal trademark registration applications for the “SPINAL TAP” mark. 9 55. Studiocanal expressly reserves the right to assert additional grounds 10 demonstrating its common law trademark rights after having the ability to conduct 11 discovery. PRAYER FOR RELIEF 12 13 WHEREFORE, Studiocanal prays for judgment as follows: 14 A. Judgment be entered confirming the motion picture This is Spinal Tap 15 and motion picture-related works created in conjunction therewith are 16 works made for hire and are therefore statutorily barred from 17 U.S.C. 17 § 203’s termination of transfer provisions, rendering any notices of 18 termination of transfer regarding the motion picture This is Spinal Tap 19 or motion picture-related works created in conjunction therewith 20 invalid and ineffective; 21 B. 22 23 abandoned, common law trademark rights in the “SPINAL TAP” mark; C. 24 25 Judgment be entered confirming Studiocanal owns, and has not That Studiocanal be awarded its costs of suit incurred herein, including attorneys’ fees and expenses; and D. For such other and further relief as the Court deems just and proper. 26 27 28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -37ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS Case 2:16-cv-07733-DMG-AS Document 108 Filed 12/02/19 Page 39 of 39 Page ID #:1010 1 2 JURY TRIAL DEMANDED Defendants Vivendi S.A., Studiocanal, and Ron Halpern hereby demand a 3 trial by jury on all issues so triable. 4 5 DATED: December 2, 2019 6 7 8 9 QUINN EMANUEL URQUHART & SULLIVAN, LLP By /s/ Robert M. Schwartz Robert M. Schwartz Attorneys for Defendants Vivendi S.A., Studiocanal, and Ron Halpern 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 08688-00001/11190349.2 Case No. 2:16-cv-07733-DMG-AS -38ANSWER TO THIRD AMENDED COMPLAINT AND COUNTERCLAIMS