banner6_r1_c1.gif banner6_r1_c2.gif
banner6_r2_c2.gif banner6_r2_c3.gif banner6_r2_c14.gif
banner6_r4_c3.gif banner6_r4_c4.gif banner6_r4_c5.gif banner6_r4_c6.gif banner6_r4_c7.gif banner6_r4_c8.gif banner6_r4_c9.gif banner6_r4_c10.gif banner6_r4_c11.gif banner6_r4_c12.gif banner6_r4_c13.gif
banner6_r5_c4.gif banner6_r5_c6.gif banner6_r5_c8.gif banner6_r5_c10.gif banner6_r5_c12.gif


news main page

DKs v ATR Appeal

I.   Introduction
II.  Statement of Facts
III. Procedural History
IV.  Argument on       Appeal
V.   Conclusion
VI.  Argument on       Cross-Appeal
      Re Cross-Appeal



Four musicians formed a band partnership, operating it to their mutual benefit and in relative harmony for almost 20 years.  They memorialized their understanding in a simple writing, drafted by one of them and reviewed, approved, dated and signed by each of them.

The band was unique.  Beyond the name, DEAD KENNEDYS - an attempt to evoke the ideals of John and Robert Kennedy and Martin Luther King, Jr. - as well as their reputation as punk rock provocateurs (which was considerable), the band members created together, funded together, and therefore owned together, their musical and other work through their partnership, which they called Decay Music.

The band conceived of the Decay Music partnership first and foremost as a democracy, collectively owned by the bandís four members, where decisions were made by the majority.  By this vehicle, they controlled their musical legacy - "a body of work," according to the trial court, "of enduring quality, critical importance and commercial value."

This "do-it-yourself" ethic was the hallmark of the partnersí relationship with each other and the outside world.  The trust and confidence they placed in one another was so great that the partnership allowed one of its partners - the bandís lead singer, Jello Biafra, doing business as Alternative Tentacles Records ("ATR") - to act as record label for the band, entrusting him with promoting, manufacturing and distributing the bandís records.

The dispute that arose between Biafra and the other Decay Music partners has its genesis here.  Biafraís dual role as band member/partner first, and solo artist/record label second, came into conflict.  This in turn resulted in breaches of Biafraís contractual and fiduciary duties, culminating in a fraudulent scheme to wrest perpetual worldwide control of the bandís recorded music from the partnership and the other Decay Music partners - in conscious disregard of their rights.

These were the findings of the jury, who heard and weighed the evidence in this case.  The trial court confirmed these findings in its Statement of Decision.  Substantial evidence supports them.

The case below also concerned the on-going relationship between Decay Music and ATR.  As the jury heard, on learning of Biafraís fraud (revealed to the other partners by a now-former ATR employee), the partnership called a meeting and voted to terminate its agreement with ATR.  Biafra failed to attend the meeting, ignored the majorityís vote - and continued to sell records.

That the foregoing actions violated Decay Musicís rights was acknowledged in Biafraís choice of litigation tactics.  Facing certain defeat on the declaratory and injunctive portions of the partnershipís complaint against him, Biafra sought on the eve of trial both to terminate the rights residing in the band partnership and to dissolve Decay Music entirely - all the while continuing unlawfully to sell the bandís records.

The trial court declined to effect a unilateral termination of the partnershipís rights in the bandís creative works, and Biafraís appeal on that part of the trial courtís Statement of Decision has no merit.  The trial court granted Biafraís petition to dissolve the partnership, however, finding "antagonistic feelings" among its partners.  In doing this, the trial court rewarded Biafra for his wrongful behavior in fostering the discord in the first place.  At the same time, it damaged the partnersí economic interests - without any evidence that the partnership could not continue to function to the partnersí mutual benefit - an abuse of discretion that this Court must correct.

On the other hand, if this Court finds that the trial court properly granted Biafraís petition for dissolution, the remedy the trial court fashioned was an appropriate exercise of discretion.  A distribution or division in-kind of rights in the bandís creative works, as Biafra urges, would have the practical effect of handing back to Biafra (albeit on a non-exclusive basis) the distribution rights he lost by virtue of his failure to abide by his concomitant obligations - not to mention his fraud.  Instead, the trial court ordered a sale of the partnershipís intellectual property assets as a package of exclusive rights, realizing the full value of those assets while avoiding the potential for future mischief by Biafra, as well as future disputes among the partners, in the on-going handling of the bandís work.

Contrary to any suggestion otherwise, this case does not arise under federal copyright law; rather, it is founded in state contract law and the rights of partners under the Uniform Partnership Act.  The federal court has already so ruled. Dead Kennedys v. Biafra, 37 F.Supp.2d 1151, 1153-54 (N.D.Cal. 1999).

Substantial evidence supports the juryís and the trial judgeís determinations under this law, and with some exception (as discussed in the cross-appeal), the jury and the trial court considered and fashioned a fair and equitable result.  The objections Biafra raises on appeal seek to undo 20 years of uninterrupted partnership history, as well as to deny justice to the Decay Music partnership.  This Court must reject them.


top of page


last updated 06/22/04