A judge has denied the defendants’ motion to have a fraud claim dismissed from the lawsuit filed by the principals of the 1984 feature This Is Spinal Tap.

Original filed nearly two years ago by Harry Shearer and seeking $125 million, the suit since has added his fellow Spinal Tap bandmates Christopher Guest and Michael McKean and the mockumentary’s director Rob Reiner. That revision in February 2017 also cranked the damages sought to $400 million. The plaintiffs — no drummer among them, for obvious reasons — claim they collected a paltry amount from the film’s music and merchandise since the film’s 1984 release.

Reiner

The suit alleges a half-dozen causes of action including breach of contract and fraud by concealment and misrepresentation. In today’s ruling in U.S. District Court in California (read it here), Judge Dolly Gee denied a motion by Vivendi and its StudioCanal unit to dismiss the fraud claim.

In his original lawsuit, Shearer claimed that “Defendant Vivendi and its agents, including StudioCanal executive Ron Halpern, have engaged in anti-competitive business practices by manipulating accounting between Vivendi film and music subsidiaries and have engaged in fraud to deprive the Spinal Tap creators of a fair return for their work.”

It added: “According to Vivendi, the four creators’ share of total worldwide merchandising income between 1984 and 2006 was $81 (eighty-one) dollars. Between 1989 and 2006 total income from music sales was $98 (ninety-eight) dollars.” The suit says Shearer and his This Is Spinal Tap co-creators Guest, McKean and Reiner were to split that $179. In fact, the original 1982 production deal had the quartet of creators getting 40% of the net profits — quite considerably more than what was cited on a $2.25 million-budgeted film that has easily made millions over the ensuing decades.

Gee gave the plaintiffs, also including Spinal Tap Productions and United Heathen, 21 days to file an amended complaint.