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Biafra Loses Bid To Deny Royalties

URGH, A Music War

Examiner Rectifies Error

DKs Win Back Rights

DKs Plan New Releases Following Judgment

Jury Sides With DKs

Punk Rock On Trial

Greg Werckman quote

DKs Claim Suit Unavoidable

02/01/00 - Spin

Punk Rock On Trial
by RJ Smith

It was surely the biggest show of Dead Kennedys' career, and Ronald Reagan made it all possible. In 1983, one of his cabinet members canceled a fourth of July Beach Boys concert on federal grounds in Washington, D.C., fearing the band would bring the wrong element to the capital. The move looked like crackbrained politics on every level -- the administration appeared painfully out of touch (banning the Beach Boys?), and the official who canned the show didn't even realize that the band was publicly down with the Reagans.

This was political theater of the absurd, and it was therefore a place where Dead Kennedys felt exceedingly at home. The San Francisco foursome took action, putting together a punk-rock festival on the Mall, the expanse of lawn stretching between the Washington Monument and the Capitol building. They were goading the government to try to stop them. Instead, thousands of punks filled the grounds that day, and skinny DKs frontman Jello Biafra greeted them by comparing the Monument to a giant hooded Klansman. As he jumped around like an insane marionette to their ornery punkability, government helicopters hovered over the stage and D.C. cops nervously patrolled the edge of the throng. Even if the band had few great tunes in them, save "California Uber Alles" and "Holiday in Cambodia," Dead Kennedys were incredible that afternoon. Their theater had finally found a suitably outsize backdrop, and Biafra came off like the kind of guy who'd dare the world to make the wrong move.

Certifiable punk provocateurs, the Kennedys eliminated most everything from rock'n'roll that wasn't about challenging authority, juicing up their rebellion with a tangy adolescent sarcasm, and making all of it feel like fun, fun, fun. Biafra yammered against hypocrisy, dictators, bankers, frat boys, jocks, and rich rock stars, baaing like a goat through a razor smile. "Gonna kill kill kill kill kill the poor tonite!" he hissed sardonically. He proclaimed "Nazi Punks Fuck Off" and ordered "MTV -- Get Off the Air." What Jello Biafra didn't like he hated, and he went after it with rubber gloves and tongs.

Over a splashy eight-year career, Dead Kennedys managed to outrage a curious array of parties who probably never bothered to listen to their records. Congressional subcommittees used their names in vain, newspaper editors refused to print it, and Tipper Gore, the San Francisco police department, the Los Angeles district attorney's office, and even the punk zine Maximum Rock & Roll wanted their heads on a chinet-plate. In 1987, the DKs were tried on obscenity charges for the penis-laden cover illustration of the Frankenchrist album (it was declared a mistrial), and Biafra led a colorful national conversation on the definition of pornography.

Such controversy helped the Kennedys build a loyal fanbase that included thousands of small-town and suburban kids. They broke up in '86 but remain one of America's biggest punk legends. There have been plenty of testimonials to the band over the years, but a recent one also aspires to be an epitaph: "Dead Kennedys were pioneers in the genre of punk music, providing an alternative to life-less; cookie-cutter pop and it progeny; the epitome of 'do-it-yourself music,' [their] combination of aggressive, innovative music and insightful social critique has earned Dead Kennedys a loyal following for over 20 years."

Okay, so it's a little stiff. What do you expect from a legal document? The words matter to Biafra, who has requested they be included in numerous court filings; with many more likely to come. That's because his fellow ex-Kennedys -- guitarist "East Bay Ray, bassist Klaus Flouride, and drummer D.H. -- slapped Biafra with a lawsuit in late '98, charging that he shortchanged them a chunk of royalties. They want $76,000 in back pay, plus damages and interest, and demand control of the band's catalog and masters.

The very name of the case filed in California Superior Court tells a tabloid story: Dead Kennedys v. Jello Biafra. And though lawyers on both sides have expressed interest in settling out of court, the fight has grown from a simple squabble over money into a labyrinthine battle of principle. Now both sides consider it war. "This is the punk-rock trial of the century," barks Peligro, hitting the table so hard that a styrofoam coffee cup flies into the air. "We're coming out with our guns blazing, and we're taking no prisoners!"

Smiling together in old flyers, Dead Kennedys look like the model of solidarity, but who wears the pants in the band has long been a sore spot. Ray says that though he assembled the group, Biafra gradually grabbed control, stopped listening to his input, and treated them all like a whipping post. "It turned into an abusive relationship," Ray says. "People in the band were being put down constantly near the end." He notes the irony of the title of the DK's final record: Bedtime for Democracy.

Biafra's personal manager (and former Alternative Tentacles general manager), Greg Werckman, agrees that his boss can be overbearingly insistent on doing things his way. Even Biafra concedes the point. "Behind every great band there's gonna be one strong personality," he says. "Otherwise you're just going to be playing Springsteen covers in a bar."

"What the DKs stand for is treating musicians fairly. If he wasn't the owner of the label he'd be the first one crying. This is not about greed, this is about fairness and justice." Attorney David Given, who represents Ray, Flouride, and Peligro in the suit, claims that Biafra wrongly uses DK royalties to bankroll his spoken-word activities. "Alternative Tentacles was started to promote the Dead Kennedys. At some point Jello Biafra took control of it," says Given. "Now its Biafra Uber Alles."

The argument among the band members has even spilled over to who was the true creative spark for the band. The others point out that Biafra can't read music and doesn't play an instrument. "In the middle of the night I'd hear him roll over in bed," says his ex-wife, Theresa Soder. "He'd go,'Dum, diddle, diddle,' humming this little lick into a recorder. He'd give the tape to the band to write a tune with it. It's like a two-year-old drawing a picture of a house and handing it to an architect, and the two-year-old gets, like 70 percent of the profit ot something." Biafra did write most of the lyrics, which were the heart of music's outrageous appeal, himself.

Biafra has honed his skills as a charismatic public speaker through his many First Amendment battles, and with the Frankenchrist controversy he proved he flourishes when cast as the martyr. Thanks to the Levi's soapbox, he's done it again, turning legal proceedings aimed at him into a trial of his accusers. But in this case the enemy isn't a jelly-bean-chomping arch-conservative: it's his former friends. Being accused of bad business ethics is a blot on a career marked by exemplary principle.

If someone in Judge Richard Best's courtroom had bolted from his seat, run to the front, and executed a stage dive from his honor's bench, they would have left quite a mess on the carpet. For the only folks in the mosh pit to soften their fall this autumn morning in San Francisco would be a bank executive and her corporate attorney, sitting in the front row as the opening act-the Dead Kennedys lawsuit-takes the stage. East Bay Ray, the only band member in the courtroom for today's discovery hearing, respectfully jumps to attention the moment the judge appears.

Today his lawyer is arguing that Richard Stott, Biafra's longtime buddy and attorney, should be permitted to testify about past business-related conversations between Stott and Biafra. It's a sticky issue: For a long time, Stott simultaneously served as legal counsel for Biafra, Dead Kennedys, and Alternative Tentacles.

It's just another bizarre detail of a rather Byzantine legal case. The basic issues are these: Ray, Peligro, and Flouride charge Biafra with underpaying them royalties to a tune of $75,000. According to Ray, the band's royalties are tied to the retail price of their records. He alleges that Biafra and Alternative Tentacles raised the retail price of Dead Kennedys records without telling the band and continued to pay them royalties tied to the former amount. The plaintiffs also say that when the Dead Kennedys broke up, their label granted the DKs the labels highest royalty rate (which was then 12 percent). For instance, if a Biafra spoken-word picture disc got a better royalty rate, an improved rate would automatically kick in for Dead Kennedys. But according to Ray, "the band was paid less than all other bands on the label." The plaintiffs are all suing to leave Alternative Tentacles and to take their masters with them.

Meanwhile, Biafra not only disputes the royalties claim, he denies he promised the band the highest label royalties. But he also acknowledges he mistakenly thought he only raised the wholesale price, though he stresses that even if stores raised their retail prices in response, he was under no obligation to tell the band, let alone share the additional revenue with them. He says it was used to pay for the label's overhead. (Since the bands business with Alternative Tentacles was mostly cemented with punk-rock handshakes rather than legal documents, it's going to be hard to prove who's right.)

After the plaintiffs demanded a full accounting from Alternative Tentacles in late 1997, Biafra addressed part of their concerns. He put almost $75,000 in a trust - a sum Biafra says he didn't have to pay and Ray says is not enough. (It will take a judge's order or the plaintiff's agreement to drop their suit to free the money.)

Depositions will probably be sealed until the trial begins, but this morning's hearing shed light on some uncomfortable conversations allegedly held around the Alternative Tentacles copy machine. Kristen Lange was general manager of the label when Ray wanted to see the books back in '97. According to her deposition, a few passages of which were read aloud at the hearing, she found out about a discrepancy between what the books indicated the band was paid and what they should have been paid. When she took the news to Biafra, she remembers him "saying that Ray would go after him if he knew." She says she was told not to break the news to the band.

Ray was present during Lange's deposition last August. When he heard how Biafra allegedly instructed her to conceal information, he left the room and cried for half an hour.

Jello Biafra has never met a political conspiracy theory he didn't love -- he sees the trilateralists, Time-Warner, and the military industrialists in bed together, and if you don't believe him, he'll show you the microfilm. So it's kind of funny that this morning's hearing should involve the aforementioned attorney-for-all, Richard Stott, who is something of a punk-rock single-bullet theory.

Long before there was an Alternative Tentacles Records, there was a used-record store in Boulder, Colorado. And long before there was a Jello Biafra, a high school student named Eric Boucher who would hit the store once or twice a day. Working behind the counter was Stott, as much a punk rocker as Boulder could featured at that time. Stott managed the local band that later became the Nails (give it up for "Eighty-Eight Lines About Forty-Four Women," y'all), and soon young Boucher was getting his first taste of the rock'n'roll life as their roadie.

Boucher went to San Francisco in 1977, haunting Mabuhay Gardens to hear three-chord wonders like Crime and the Nuns. He answered a "singer-wanted" ad East Bay Ray posted in a local record store and was basically chosen because he arrived on time for audition, unlike the other guy Ray was considering. Boucher christened himself Jello Biafra, making his name a sick joke on Western consumerism and Third World impoverishment.

Stott moved to San Francisco and went to law school. Dead Kennedys were his first professional clients, and with them came the label they founded. From 1984 on, he has also been Biafra's personal lawyer. (Stott even drafted papers for Biafra's wife in their divorce proceedings.) Many would find this overlapping the roles rife with the potential for conflict of interest: bands want as much as they can get, as soon as possible, while labels tend to pay talent as little as possible as late as they can. How can a lawyer advise both side? Ray and Co.'s present lawyer, David Given, whom they hired last year, says Stott purported to protect their interests while he was really doing Biafra's bidding.

"There wasn't all this tension then," Biafra adds. "Everybody understood what was good for Dead Kennedys was good for Alternative Tentacles, and vice versa." When he looks at past history now, does he see any impropriety? "No, because I never wanted to act against the other three guys. I'm not interested in chiseling people." For his part, Ray laments that he was "naive and trusting."

As the judge stands to signal the end of the hearing, East Bay Ray again rises. He's wearing a green jacket, purple pants, and bug-eyed glasses. Sitting there in court was hard on him; more than once he looked like he was going to burst when Biafra's lawyers addressed the judge. But now, leaning against his car, drawing a few deep breaths of fresh San Francisco air, he's able to relax a little. When asked if there's any chance that he and Biafra will settle out of court, he responds, "If he'll do the right thing, so will we."

Instead, as the late, lamented Dead Kennedys duke it out in the crab pail, their lawyers get the last word. Strangely enough, these days, the legal talent seem more sure about punk-rock ethics. "Everything's verbal, just handshakes. You keep the lawyers out of things," the plaintiff's attorney Given explains. "What we're really talking about is control of the band's destiny. That's what the DIY ethics is about, man. Control your masters, and don't let other people whore you." Next to Given's desk rests a bumper sticker so sarcastic it could be a Dead Kennedys song title: PROUDLY SERVING MY CORPORATE MASTERS.

Biafra's lawyers define punk a little differently. "Those ideals were about not selling out," says Keating. "Noncommercialization, nonsupport of people who are only interested in something for the money they can get out of instead of the freedom to create whatever you want." As he talks, it hard not to notice the way his legs neatly cross at the ankles and the nice shoes he wears. They are tassled leather loafers. Let the trial begin: Drive a Mont Blanc pen through the heart of punk.


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last updated 08/05/03