"When you look behind the music, everyone you look up to turns out to suck anyway," Jello Biafra tells an audience on his new spoken word album, Become the Media.
Between 1978 and 1987, the music of Dead Kennedys was miles above their hardcore peers, and as a lyricist, Jello Biafra's acerbic and satirical wit had no equal; even though most of his targets were specific to Reagan-era America, the message has proved just as potent to subsequent generations of punk fans. Since 1998, when news broke of a lawsuit between Jello Biafra and three of his former band-mates in the seminal San Francisco punk band, fans have been consistently crushed and saddened by subsequent turns of events no matter which side has their sympathies. The ongoing Dead Kennedys debacle threatens to bury the legacy of co-operation and community that punk and especially this band promised, idealised, and ultimately lost.
Just over a year ago, the "other three" members of the Dead Kennedysguitarist "East Bay" Ray (Pepperell), bassist Klaus Flouride (Geoffrey Lyall) and drummer D.H. Peligro (Darren Henley)won their civil suit against singer/lyricist Jello Biafra (Eric Boucher), who was found liable for defrauding his former band-mates of over $76,000 in royalties. As owner of the band's label Alternative Tentacles Recordings (ATR), Biafra was also ordered to pay damages for "failure to promote" the band's back catalogue; damages totalled nearly $200,000. The jury went so far as to describe Biafra's actions as "malice," defined in the court decision as "conduct which is intended to cause injury or despicable conduct which is carried with a willful and conscious disregard for the rights of others. Despicable conduct is conduct which is so vile, base, contemptible, miserable, wretched, or loathsome that it would be looked down upon and despised by ordinary decent people." Part of the jury's decision was based on testimony from a former Alternative Tentacles employee who alleged that Biafra, upon being informed of a bookkeeping error that had been underpaying the Dead Kennedys, told her not to tell the band; Biafra claims she misunderstood. The decision hit both sides: Ray was also found guilty of mismanaging band finances and was ordered to pay Biafra $5000.
The case is peppered with personalities: music industry expert witnesses who worked for Journey and Santana testifying how Alternative Tentacles should have been running their business, and a lawyera childhood friend of Biafra'swho at one time simultaneously represented Biafra, Dead Kennedys, and Alternative Tentacles.
For such a towering figure in the underground music world, Biafra's biggest legacy is not musical at all; it's political and philosophical. He's encouraged generations of listeners to be suspect of orthodoxy, question all authority, champion free speech and disavow Corporate America. When three of his former associates are able to win a court case that challenges Biafra's own integrity as a business associate and label owner, suddenly it appears he's no longer the victim, he's the oppressor.
The whole story seems like a conspiracy theory, like a punk rock COINTELPRO operation designed to discredit and cripple one of the most subversive and popular activist voices in the U.S. His pointed critiques of globalisation on his new album, Become the Media, and his extensive involvement with the Green Party are examples of how Biafra has moved beyond the punk ghetto and alongside Ralph Nader and Michael Moore's world of mainstream activism. The irony of his current travails is staggering, and has not gone unnoticed by anyone covering the case: after being dragged through the courts twice before on obscenity chargesfor including surrealist art in a Dead Kennedys album and for releasing an album by the CrucifucksBiafra's worst enemies have turned out to be his former friends, not the fundamentalist Christians nor "Republicrat" puppets that he rails against. When he's the victim in a free speech case, all his fans can unquestionably rally behind him. When the darts come from within his own band, everyone's left scratching their heads, trying to wade through the mechanicals of publishing and royalty rates.
The plot continues to thicken and the vitriol from both sides continues to escalate. Both parties accuse the other of making threatening phone calls to third parties, and of creating a chill surrounding the case and the future of the catalogue. Although the verdict was handed down last spring and a court order upheld the decision in December, Biafra still has an appeal before the courts. All but one of the Dead Kennedys albums are now out of ATR's hands; remastered versions and a live album, now available on European import, will be released in North America in September. All decisions are controlled by the band partnership Decay Musicsubject to majority vote by all four members, ideally.
"They refuse to tell me what's going on with the money," claims Biafra. "When I ask Ray to justify all the expenses he deducts from me as they split the rest of the money three ways, he just sends back alleged invoices with the names blacked out. It looks like a letter from Richard Nixon, or John Lennon's FBI file. They're doing all the things they accused me of, but they're doing it for real."
Ray counters, "For the last year Biafra got cheques, endorsed them and sent them back. He's been proven in court not to be the most reliable source. The other thing [he's claiming] is that he's not allowed to vote. I have faxes sent back by him where he says no to everything. I have votes that he's made on paper. I have documents. So that too is untrue and false."
Biafra: "Well, if he wants to prove it's untrue he can pay me. That's the easiest way to erase that. He hasn't paid me anything since, I believe, early last fall. Everything else has disappeared. They send me vague sheets saying expenses,' and if I ask what the expenses are, I get blacked-out invoice sheets. That is not an honest way to run any kind of enterprise, let alone a political punk rock band."
Ray: "He has no claim of not being paid his royalties. It's false and untrue and it's defamation, because I have business relationships in the music world, as well as non-music relationships. It's outright libel and defamation. I really would like some kind of retraction or redress for the harm that's been done to me on that issue."
Biafra is evidently emotionally drained by the case and its aftershocks, and has even made extremely disturbing comments like he did on Brave New Waves this spring: "I hope [the case] doesn't turn me into Kurt Cobain before the end of the year, but we shall see." He responds curtly to one query about specifics by saying, "I'm not going to retry the case for you."
East Bay Ray considers the details of the case are over and done with. In between lectures on defamation, he says, "A lot of journalists delve into he-said-she-said stuff. Biafra says this, Decay Music says this.' I'm saying, wait a minute, that part's over! We both presented our sides to a jury of 12 people that nobody knew, and they said his story is false and ours is true."
Ray takes issue with a March 2001 Exclaim! news piece. "You quote Biafra calling us a kleptocracy.' Now, klepto' means stealing,' and accusing us of stealing is also libel and defamation. We have a court order that says we can run things by majority vote. That is legal, and kleptocracy' means something illegal. That's totally false. I have documents with his no' votes on them. We're not stealing, we're doing things legally. That is also defamation and libel that you printed and distributed."
Speaking of defamation and character assassination, Biafra has been ruthless in his attacks on his former bandmates in spoken word appearances, in the press and on the ATR web page. If, as Ray claims, most of Biafra's charges are untrue, then why hasn't the band threatened to sue him, instead of the press outlets that quote him? Why can Biafra speak without fear? "I don't know," says Ray. "We made a decision not to go after him for defamation. He hasn't got much big press, but if someone with wide distribution starts doing it, we might rethink that."
There are two levels to the case that will continue to be contentious, whether Biafra wins his appeal or not. One is the home of the Dead Kennedys catalogue; their collective titles sell somewhere around 100,000 copies a year, making them ATR's best-selling band by a landslide. Also at stake is the reputation of the band, one of the remaining few punk acts whose legacy hinges on its impeccable integrity. Until now, due largely to Biafra's insistent vision of the band, the Dead Kennedys have never fallen prey to the usual traps that ageing bands use to boost back catalogue sales: reunion tours, ubiquitous appearances on movie soundtracks, corporate-facelift repackaging, and most importantly, commercial endorsements.
It's this last issue that Biafra has spun into the central issue of the trial, claiming that both sides were in the process of settling the royalty dispute until an offer came from Levi's to use "Holiday in Cambodia" in a commercial. "We handled our disputes as adults and as friends, up until I refused to do the Levi's commercial," says Biafra. "Even the supposed royalty discrepancy was being discussed as adults, as we tried to get to the bottom of it. But as soon as I wouldn't do Levi's, they went running to Bill Graham's lawyer."
"He brought that up at the trial, and the jury found that false and untrue," fumes Ray, who's livid that "more journalists talk about [the Levi's issue] than they do Biafra's fraud. It's called spinning.' I'm sure you're familiar with the term, and Biafra's good at it. But I was the only one who called the ad agency to tell them it wasn't likely to happen. Anything else he says is just trying to distract people from his own actions against the band."
According to Greg Werckman of Ipecac Recordings, who was label manager of Alternative Tentacles for eight years, "Both sides are stretching this one. Jello brings it up a lot, but to be honest, Levi's shot the concept down," Werckman claims. "A lower-ranking person at Levi's had a list of several bands to include in an advertising campaign, and one of them was Dead Kennedys. This person contacted Ray about the potential, but it turned out the higher-ups shot them down and ended up using the Pretenders. Biafra claiming that they were offered money from Levi's is not true; the concept was discussed. However, Ray's claims that they were not interested in it is an absolute lie. He called me to ask me to help him convince Biafra to go for it because of what it would mean in terms of marketing for Dead Kennedys and the label as a whole."
When Biafra is presented with Ray's version of the Levi's story, he says, "I guess they've learned at least something about how the public sees our work. Because at the time, their take on Levi's was very different. Ray tried to bully me into knuckling under and doing the commercial. He called me up and threatened me on the phone twice. The second time, he said, Now I have to tell Klaus and there's going to be repercussions.' Then he slammed down the phone. The next thing I found out was that Klaus already knew, and had been lobbying two of my closest and most trusted friends to get them to push me to sell out to Levi's. When I confronted Klaus on this and pointed out what our band means to people and what the message of the band was, and how I would take 99 per cent of the shit if we turned around and stabbed everybody in the back by doing that, he said, Well, you should go to the press and tell them that we did the commercial to raise money for charity, and then we'll give five per cent to charity and divide up the rest.'" Biafra has repeated this story often at spoken word shows and on his latest album. Klaus Flouride has publicly denied Biafra's allegation.
When Ray is asked directly how he would approach such offers in the future, he says frankly, "I'd take them on a one-by-one case. I personally am not into doing endorsements. I don't like it. But if it came up that Darren's mom needed a couple of hundred thousand dollars for an operation, I might change. That's a human situation. Since the trial, I've learned that the Clash did an ad in England. And then there's the question of who's a good corporation and who's a bad one. In my experience, the size of the company is irrelevant. A small company can be worse than a big company. Everything's not a black and white situation like Biafra likes to paint it. All of this is the entertainment business; when you get into politics, it's not bumper stickers anymore. There are more complex issues that don't make good entertainment or good copy in a newspaper. My personal political viewpoint is that evolution starts with you, how you treat people. How do you treat your co-workers? Your family? Your friends? I was a waiter in college, and the worst people to serve were the Marxists. Talk is cheap and actions speak louder than words, and Biafra's actions spoke way louder than his words."
At issue is not just whether or not it's appropriate for Dead Kennedys songs to be "pimped," in Jello-speak, to commercials. At the heart of that matter is whether or not one ideologue in a band can block the rest of the band from deciding how their material can be used: should a band operate democratically, through consensus, or through dictatorship? There's no question that Biafra was the commanding force in the band, but what separated the Dead Kennedys from countless hardcore bands was the musicality and originality of their arrangements. None of Biafra's other musical projects have had the same potency as his work in the Dead Kennedys. In such a political case, it's easy to forget how great their music was.
"Music hits people on an emotional level," says Ray. "It can say more than words can. You'll listen to a piece of music over and over again. A good novel, you'll read once and maybe you'll read it again in 15 years. They both affect you, but music hits you on a different level. Klaus, D.H. and I don't want to be the politician/media types, but we enjoy listening to and playing music. The reason we were a great rock'n'roll band was because it was a collaboration. That's where it started from and that's where it's back to now. We've liberated the music."
"In my opinion, Biafra could have found any three lounge musicians in the world and whipped together a great band," says V. Vale, the proprietor of the Bay Area alternative publishing house Re:Search and the late 70s punk zine Search and Destroy. "I've heard many lounge musicians who are really good, but they weren't lucky enough to get with a guy who writes original songs and has an original concept and be lucky enough to somehow get some breaks. The Dead Kennedys were the biggest American punk band for a while, with an international reputation. In my opinion, Biafra didn't assert himself enough. He was the leader of the fucking band! This was no co-operative. This was no collective. He came up with the songs, the concept, the name, the logo. Most people in this world are not like Biafra. They go out and they get a job. They don't take a stance and say, I'm going to start something myself.' They're basically ass-kissersno offense to anyone who has to work for a living."
In talking to both men, it's obvious that there isn't much love lost between Jello Biafra and East Bay Ray. Even if their business differences were ever smoothed over, they'd still have plenty to disagree about; during Ray's interview, he embarks on a tangent about why Jello's beloved Green Party was a spoiler who handed the U.S. election to George W. Bush.
Biafra paints Ray as the principal agitator, and when he discusses Klaus Flouride or D.H. Peligro, there's an instant shift in Biafra's tone of voice to one of sadness. Ray speaks with the tone of a vengeful victim who has spent years in the shadow of a powerful and charismatic figure. "We have to do what we know is right," states Ray emphatically. "He used to be able to manipulate us like that, but it's over and he doesn't realise it. Names aren't going to hurt us anymore. I hope that he realises all that stuff will bounce back at him one day."
Because ATR was prepared to pay the disputed back royalties, it seems a fair question to ask Ray if there were other, more personal issues at stake. "No! See? Biafra committed a fraud! Hello? How many more times do I have to say that?" says Ray, who somehow manages to be polite and apologetic even at his most indignant. "I don't know whether it was deliberate or not, but the band was being underpaid, and he didn't tell us we were being underpaid. That's where the fraud comes in. I don't know why people think it's okay for a band member not to tell the others about stuff that's theirs. Biafra made a mistake, and what needs to happen is he needs to admit that he made a mistake and then we need to move on. More music, less lawyers! He's the one dragging it out now. The money was there and a whistle-blower told us about it. He was paying himself 25 cents more per CD than the band. We didn't know that. He did not tell us the truth. We were trusting him."
Based on a 25 cent discrepancy on 100,000 albums a year, the financial stimulant for this case is the equivalent of approximately $6250 a year for each band memberincluding Biafra. Is that worth the heartbreak, character assassination and lawyers' fees? Greg Werckman speculates that the royalty issue is an extension of the personal divide between Ray and Biafra. "The mathematical errorno one picked up on it," says Werckman, who had left ATR just before the dispute flared up. "Ray was getting statements for years with this error on it. I was filling out these statements every three months, and I didn't catch it. Finally, when the question of royalty rates and the potential of a lawsuit was brought up, it was myself and the label manager at the time who discovered it. As soon as Jello found out about it, he said, That's terrible.' And obviously it effected Jello too, because a big part of that money is his. He said that we had to pay the band back right away. Ray seized upon that moment like, Aha, we caught them and they admit that we caught them, now here's my chance to get Dead Kennedys off Alternative Tentacles and into greener pastures.'"
Both Ray and Biafra insist that the other's reputation in the San Francisco has been tarnished. Says Biafra, "Locally, their reputationsRay's in particularprecedes them as being people who have been out of touch, uncaring, greedy, and over-the-hill bitter old wanna-be rock stars who don't really reach out to help anybody else. I have yet to have one person walk up to me and say that they believe those guys. Not one."
Ray counters, "Most people here in the Bay Area know Biafra more personally, so it's not really a problem," he chuckles slyly. "A lot of people won't say so publicly, because he has such access to the media and he's terrified people. Most people say, Oh, East Bay Ray from Dead Kennedys, cool! I love to listen to your music.'"
V. Vale argues that Biafra's personality was detrimental when it came to winning over a jury of 12 average Americans. "I'm not a lawyer," says Vale, "but when I watched the trial, and when I talked with a juror for about eight hours after the trial, that's when I realized how important it is to have the defendant coachedwhat they wear, their body language, their posture. Biafra is a leader. He's an orator, and most people are not sympathetic to that. Most people are intimidated by Biafra, and there's a reason: it takes a special person to do what he does. To be able to go up [on stage] without any notes and give a long rant that brings people to their feet clapping with a standing ovation after a spoken word thinghow many people can do that? Not very many.
"So here's the defendant, and here's these three guys acting all put-upon and yet funny at the same time," Vale continues. "If Biafra had made the jury laugh as much as the [band] had, he might have had an even chance. But he felt outraged by the lawsuit and wasn't coached to win the jury over. The three [other Dead Kennedys members] caused a lot of laughs, and the jury felt sympathetic and identified with them. Biafra, frankly, came off like a leader and arrogant."
One of Biafra's principle grounds for appeal is the jury's decision that Alternative Tentacles "failed to promote" the Dead Kennedys back catalogue in a manner consistent with other historically-renowned and now-defunct acts on major labels. The evidence entered to support this showed that the British label Cherry Red had re-released the DK's debut, Fresh Fruit For Rotting Vegetables, in a new package with five bonus tracks and launched it with a promotional campaign; in one month's time sales went from 5000 to 15,000.
Since the trial, Ray has remastered the band's catalogue and it has been released in Europe, along with a new live album; needless to say, all this was done without Biafra's co-operation. "The four back catalogue albums have been remastered from the original tapes by the original engineer," says Ray. "They hadn't been digitally converted in 13 years, and computer technology has changed dramatically. They sound great. I can't even listen to the old ones anymore; some of them have a real telephone tinny quality to them. The live CD shipped about 4000 in three weeks, which is amazing. Things are now selling about double what we did. There's also been a re-promotion campaign for the live record and the remastered CDs." All the "new" Dead Kennedys product got rave reviews in Kerrang magazine, which Ray feels is proof that ATR dropped the ball in exploiting the band's commercial possibilities.
Former ATR label manager Greg Werckman takes personal offense to the notion that the label even had the means to invest into promoting the Dead Kennedys. He testified on the topic at the trial in Biafra's defense. "It's unfortunate that the experts that Ray's side brought up were not dealing with labels like Alternative Tentacles. There was someone from Grateful Dead Records and other people who had worked at major labels. To a jury of people who don't know anything about the music industry, it seems huge; it seems there's millions of dollars involved, and the people in the jury think, Well, it sounds like the people at Alternative Tentacles should have spent a bit more to market Dead Kennedys.' But what they never saw or understood was that there was no other money at the label, and how every band was treated the same. There were times when I was not able to pay the employees on payroll, because we had so little money, and we had such a generous royalty rate. The bands always got paid first, and there were a few times when the staff didn't get paid. Eventually we'd make it up, but they'd have to go a couple of weeks without pay."
Biafra claims that the decision has larger ramifications than merely the marketing departments of low-budget indie labels. "It's not just the music industry, it's a bad case for industry in general," says Biafra. "Even N Sync could sue their label claiming if there'd been more ads, more CDs automatically would have been sold. It's preposterous to reward anybody damages for lack of promotion, under the premise that if x-amount more money had been spent on advertising, that x-amount more CDs would automatically have been sold. It's never been true in any industry, from films to typewriters to mothballs. The expert witness they relied on for this testimony was a guy who had never worked on music promotion at a record label; he was an accountant for Grateful Dead Records. He never should have been allowed to testify in the first place."
"That's the weakest part of their case," concurs V. Vale. "This is not a touring band. This is a band that hasn't been together in over 15 years. You're talking about a really old back catalogue. You don't see ads anywhere for ancient albums by anybody, period. It is not an industry standard. It's the same thing for a book. A book could have been a best-seller 15 years ago, but you don't see expensive major media and television ads for it 15 years later. It wouldn't do any good. It's just ridiculous.
"I think that no one believes that Biafra deliberately ripped off his bandmates," Vale continues. "Very, very few people. The general stance from everyone I've talked to regarding the failure to promote' thing, is that the only reason the Dead Kennedys have sold so many records over the last 16 yearscompared to other great bands that have been forgotten, like the Avengers who were just as big for a while, locallyis because Biafra is always out there touring and being in the media and magazines and doing spoken word performances and getting the name Dead Kennedys out there. He's the reason they made as much money as they did in the years since the band broke up."
Ray doesn't discuss the "failure to promote" clause at length, except in the context of what he sees as a betrayal of the original agreement between Dead Kennedys and ATR. "Alternative Tentacles was started by the band," says Ray. "I was the one who produced and mixed the first single and sold it out of the back of my car. Alternative Tentacles was supposed to put the artist and the band first. Since about the early 90s, there was a sense that we were just a vehicle for the label. We were just the cash cow. In 1997, I was getting a sense of arrogance. Klaus, D.H. and I didn't matter anymore, it was all Biafra and Alternative Tentacles. We support a lot of those bands. That's why we put a lot of money into the label, and why we didn't take our fair cut. But Biafra puts out a three-record picture disc of one of his spoken word records and hired outside PR agents for thousands of dollars; meanwhile Klaus had a record on Alternative Tentacles, and Klaus is told we have no money for promotion.' That's not right. Basically, a conflict of interest developed between the band's interest and the interest of Biafra and Alternative Tentacles. He put Alternative Tentacles' interest over the band's, and that's what the court case was about. It was not the right thing to do in his situation."
"It's the exact opposite of conflict of interest," fumes Biafra. "Nobody cares more about Dead Kennedys past and presentand did more to help push it and promote it and maintain its legacy and respect and integritythan I have. That would not have happened if it was on some other corporate label who didn't give a shit. If it's your baby, you work your butt off to protect it. I'm really galled by this attitude they're taking that every penny that came into the label should automatically have gone to them. That's ridiculous. Even their own solo albums came out of the money that any label uses in order to help other artists, and hopefully expand.
"There was once a sense of community and respect among everybody in the band," continues Biafra, who celebrated ATR's 22nd anniversary in May. "We wanted to help other people, and not necessarily the most obvious ones, but other ones who wanted to operate completely outside the mainstream entertainment industry without having to wimp out and compromise their sound or have their lyrics edited. Everybody was down with that for a long time. It was only after they began hanging out with these corporate lawyers that they decided that every last penny a label makes should go straight into their pockets."
Another universal issue raised by the trial is whether a popular artist who owns their own label has to appear extra careful not to appear like the jewel in the crown. Werckman insists that Biafra has a very hands-off approach to Alternative Tentacles, as does Werckman's current business partner at Ipecac, Mike Patton (Faith No More, Mr. Bungle); Werckman says Ipecac was modelled in the ATR mould. "Mike Patton is my partner and is obviously an artist that does a lot on our label, and it's very similar to the way Jello was," says Werckman. "Mike is not in the office on a daily basis, and doesn't handle marketing or advertising, and neither did Jello. Jello didn't come to the office except to pick up mail every couple of weeks. He trusted the people he hired to run his label. When I was hired to manage the label, it was explained to me that all artists should be treated the same. There's no real grey area for thinking, Should I feel bad because my records sell more?' That was a given.
"One of the first things Jello told me when I started managing Alternative Tentacles was that all Dead Kennedys-related things are why Alternative Tentacles exist, and so all related projects will be released on Alternative Tentacles," Werckman continues. "We did solo records by Klaus and Darren, and Ray had, in my opinion, one of the worst-sounding records in the history of Alternative Tentacles, which the label put out and it got the same treatment that NoMeansNo's record got. Ray sometimes claims that the royalty rate is higher at other labels, but what he neglects to point out is those labels also charge bands for advertising, promotion, packagingall the industry standard chargebacks that Alternative Tentacles does not do at all."
Ray recently negotiated North American distribution rights to the re-mastered catalogue and the new live album with Manifesto, home of Cinerama, Wedding Present, the Lilys, Tim Buckley re-issues, and Tom Waits tribute albums. Because Biafra is such an influential figure in punk rock not to mention extremely vocal, and when it comes to this case, extremely livid most labels have shied away from getting involved, citing "Jello chill."
It's brought out attention-seekers like Bob Graham of Toronto label Muck Records, who was boasting to anyone who would listenincluding this writerthat he had a close advisory relationship with the other three DKs, handled their solo projects (including Jumbo Shrimp, featuring Ray and Klaus), was probably going to get the rights to the catalogue, and was going to sue Biafra himself for defamation. "We have no business relationship with Muck Records," says Ray, about Jumbo Shrimp. "Peligro has an album called Welcome to America on Muck. I know Bob was interested in the Dead Kennedys catalogue, and I think he's talked to Klaus once or twice, but I don't think anything has come forward on that front." While very eager to talk a few months back, Bob Graham did not return calls for this story.
Ray has much bigger fish to fry. "I talked to both Fat Mike [of Fat Wreck Chords] and Brett at Epitaph," he says. "They both said that they talked to Biafra. They had formal offers in and then they withdrew them." Epitaph officially denies this, although an off-the-record employee admits it's true. "Fat Mike said it's because he talked to Biafra and he didn't have time for it," Ray continues. "Epitaph and Fat Wreck are owned by musicians, and their image in the media is importantturns out it's more important than the record label. Other record labels are run by people who get their job satisfaction in promoting and distributing good music, they don't care that much."
"Biafra and his followers have been threatening and intimidating labels with phone and letter threats, etc.," Ray continues. "That is way out of line and I can't believe that anyone who professes political awareness would support such goon-like tactics. Biafra has not disavowed these acts. Biafra lost in court and is bitter; unethical attempts have been made to eliminate labels interested in the DKs music in the hope of forcing us back to ATR, a label that defrauded Dead Kennedys. Biafra has no regard for Klaus, D.H. or my rights or the court order."
Greg Werckman explains, "Before a label picks up the catalogue, Jello's attorney has the right to let the label know that he's not interested in promoting something that he's not a part of. They're doing things without his input, yet they want him to just go along with any record label that they want to put it out on. Now when Jello voices his opinion about a deal or a potential suitorwell, if I'm a label and I might be putting out Dead Kennedys records yet Jello is no longer a part of it, that would cause me some concern."
One of the many reasons Biafra is upset about the remastered and repackaged albums is that the songwriting credits have been altered. Almost half of the entire DK songbook has had both lyrics and music credited to Biafra for over 15 years, with all but eight of the 76 songs featuring Biafra's lyrics. During the trial, the other three testified that the songwriting was in fact collaborative, and therefore ownership of the songs rested with the band partnership, Decay Music, and not the individual songwriter; the jury agreed.
Says Biafra, "It's been reported to me by those who've seen these [reissues] that they've changed all the songwriting credits so that I no longer wrote any of the music, but that D.H. Peligro wrote songs two years before he was in the band."
"That was a printer's mistake," says Ray. "They will be corrected in the next batch, next round. It was an honest mistake that he's turned into this big evil conspiracy. It's silly. The way that the money is being divided for the songwriting credits is being done the exact same way it's been done for 20 years. That has not changed."
Ray says he considers Biafra's chances of winning the appeal "astronomical." "The end has started already," says Ray. "That's why he's getting more vocal and more mean-spirited. The attacks on us are ultimately not going to make him look good. People love the band. I love the band. I even love his lyrics. The way I see it, if he can't have the Dead Kennedys, he wants to destroy it. And that's not right, because there are other people involved and it's been out for 20 years. We've been on other record labels before. In England we're on Cherry Red, and that hasn't hurt the band. It's time to move on, because we've been through too much.
"I believe in democracy, and the re-mastered CDs are prime examples of that. If you had an old CD of Give Me Convenience and a new CD of it, I wouldn't even have to tell you about the difference. You'd see right there that democracy has been a good thing. Or putting out the live record. There are a lot of bootlegs out there, and this record is a million times better than any bootleg out there. And now the band's being compensated for it. The band and the music we created together is bigger than any of us mere mortals. Our original message was not to follow us, but to think for yourself. This squabble will be over in a year or two, but the music will live on. The Beatles sued each other, and you probably don't even remember why. The Misfits sued one another, so did the Sex Pistols. Who cares? People still listen to the Sex Pistols, and people will still listen to us. We were always about thinking for yourself and being tolerant of other viewpoints, because you might learn something. It's not about do what we say.'
"The new stuff will come out, and that's what we want to push," Ray continues, good-naturedly joking with this journalist that the "case is all phony to generate interest in the band!" "We don't want to push what happened in the past and talk about the mistake We do have to respond to it and say, We're good people! We know what punk is: it's about thinking for yourself and having control of your destiny.' That's what Dead Kennedys are about and that's what we got."
"Biafra, not the Dead Kennedys, stands for integrity," says V. Vale. "To me, Biafra, whom I consider synonymous with the Dead Kennedys, means one thing: no sell-out. You have to remember that Biafra was one of the very first of the punk rockers to take consciousness a little bit further, and absolutely refused to have their music on a corporate major label. To me, there are very few people you can trust, and Biafra is one of them. He will not sell you down the river."
"I know for a fact that Darren approached Mike Patton to find out if he would be interested in singing with a Dead Kennedys reunion tour," offers Greg Werckman. "What is that about? I know those three were in Dead Kennedys, but a Dead Kennedys tour without Biafra?"
When asked about this in a follow-up e-mail, Ray responds, "I don't know about those people being approached. But it's an interesting idea. The music is good and a lot of people never saw our music live. What do you think?"
For fans of the band, of Biafra, and of Alternative Tentacles, everyone has already lost no matter who wins the appeal. "It won't be the end of the world for the label, but this [lawsuit] is damaging the credibility of Dead Kennedys as artists," says Werckman. "I don't know if both sides fully understand how damaging it is. As a fan, the reason I became interested in Dead Kennedys was because they had something to say. They showed that if you get involved, you could screw with the government and get active and keep your integrity."
Werckman says the cumulative acrimony of the case is "beyond crushing to me as a fan. And I've heard that from quite a few other people, people who aren't even taking sides. People say, I don't want to say either Jello or Ray is right, but this is all wrong.'"
Between 1978 and 1987, the music of Dead Kennedys was miles above their hardcore peers, and as a lyricist, Jello Biafra's acerbic and satirical wit had no equal; even though most of his targets were specific to Reagan-era America, the message has proved just as potent to subsequent generations of punk fans. Since 1998, when news broke of a lawsuit between Jello Biafra and three of his former band-mates in the seminal San Francisco punk band, fans have been consistently crushed and saddened by subsequent turns of events no matter which side has their sympathies. The ongoing Dead Kennedys debacle threatens to bury the legacy of co-operation and community that punk and especially this band promised, idealised, and ultimately lost.
Just over a year ago, the "other three" members of the Dead Kennedysguitarist "East Bay" Ray (Pepperell), bassist Klaus Flouride (Geoffrey Lyall) and drummer D.H. Peligro (Darren Henley)won their civil suit against singer/lyricist Jello Biafra (Eric Boucher), who was found liable for defrauding his former band-mates of over $76,000 in royalties. As owner of the band's label Alternative Tentacles Recordings (ATR), Biafra was also ordered to pay damages for "failure to promote" the band's back catalogue; damages totalled nearly $200,000. The jury went so far as to describe Biafra's actions as "malice," defined in the court decision as "conduct which is intended to cause injury or despicable conduct which is carried with a willful and conscious disregard for the rights of others. Despicable conduct is conduct which is so vile, base, contemptible, miserable, wretched, or loathsome that it would be looked down upon and despised by ordinary decent people." Part of the jury's decision was based on testimony from a former Alternative Tentacles employee who alleged that Biafra, upon being informed of a bookkeeping error that had been underpaying the Dead Kennedys, told her not to tell the band; Biafra claims she misunderstood. The decision hit both sides: Ray was also found guilty of mismanaging band finances and was ordered to pay Biafra $5000.
The case is peppered with personalities: music industry expert witnesses who worked for Journey and Santana testifying how Alternative Tentacles should have been running their business, and a lawyera childhood friend of Biafra'swho at one time simultaneously represented Biafra, Dead Kennedys, and Alternative Tentacles.
For such a towering figure in the underground music world, Biafra's biggest legacy is not musical at all; it's political and philosophical. He's encouraged generations of listeners to be suspect of orthodoxy, question all authority, champion free speech and disavow Corporate America. When three of his former associates are able to win a court case that challenges Biafra's own integrity as a business associate and label owner, suddenly it appears he's no longer the victim, he's the oppressor.
The whole story seems like a conspiracy theory, like a punk rock COINTELPRO operation designed to discredit and cripple one of the most subversive and popular activist voices in the U.S. His pointed critiques of globalisation on his new album, Become the Media, and his extensive involvement with the Green Party are examples of how Biafra has moved beyond the punk ghetto and alongside Ralph Nader and Michael Moore's world of mainstream activism. The irony of his current travails is staggering, and has not gone unnoticed by anyone covering the case: after being dragged through the courts twice before on obscenity chargesfor including surrealist art in a Dead Kennedys album and for releasing an album by the CrucifucksBiafra's worst enemies have turned out to be his former friends, not the fundamentalist Christians nor "Republicrat" puppets that he rails against. When he's the victim in a free speech case, all his fans can unquestionably rally behind him. When the darts come from within his own band, everyone's left scratching their heads, trying to wade through the mechanicals of publishing and royalty rates.
The plot continues to thicken and the vitriol from both sides continues to escalate. Both parties accuse the other of making threatening phone calls to third parties, and of creating a chill surrounding the case and the future of the catalogue. Although the verdict was handed down last spring and a court order upheld the decision in December, Biafra still has an appeal before the courts. All but one of the Dead Kennedys albums are now out of ATR's hands; remastered versions and a live album, now available on European import, will be released in North America in September. All decisions are controlled by the band partnership Decay Musicsubject to majority vote by all four members, ideally.
"They refuse to tell me what's going on with the money," claims Biafra. "When I ask Ray to justify all the expenses he deducts from me as they split the rest of the money three ways, he just sends back alleged invoices with the names blacked out. It looks like a letter from Richard Nixon, or John Lennon's FBI file. They're doing all the things they accused me of, but they're doing it for real."
Ray counters, "For the last year Biafra got cheques, endorsed them and sent them back. He's been proven in court not to be the most reliable source. The other thing [he's claiming] is that he's not allowed to vote. I have faxes sent back by him where he says no to everything. I have votes that he's made on paper. I have documents. So that too is untrue and false."
Biafra: "Well, if he wants to prove it's untrue he can pay me. That's the easiest way to erase that. He hasn't paid me anything since, I believe, early last fall. Everything else has disappeared. They send me vague sheets saying expenses,' and if I ask what the expenses are, I get blacked-out invoice sheets. That is not an honest way to run any kind of enterprise, let alone a political punk rock band."
Ray: "He has no claim of not being paid his royalties. It's false and untrue and it's defamation, because I have business relationships in the music world, as well as non-music relationships. It's outright libel and defamation. I really would like some kind of retraction or redress for the harm that's been done to me on that issue."
Biafra is evidently emotionally drained by the case and its aftershocks, and has even made extremely disturbing comments like he did on Brave New Waves this spring: "I hope [the case] doesn't turn me into Kurt Cobain before the end of the year, but we shall see." He responds curtly to one query about specifics by saying, "I'm not going to retry the case for you."
East Bay Ray considers the details of the case are over and done with. In between lectures on defamation, he says, "A lot of journalists delve into he-said-she-said stuff. Biafra says this, Decay Music says this.' I'm saying, wait a minute, that part's over! We both presented our sides to a jury of 12 people that nobody knew, and they said his story is false and ours is true."
Ray takes issue with a March 2001 Exclaim! news piece. "You quote Biafra calling us a kleptocracy.' Now, klepto' means stealing,' and accusing us of stealing is also libel and defamation. We have a court order that says we can run things by majority vote. That is legal, and kleptocracy' means something illegal. That's totally false. I have documents with his no' votes on them. We're not stealing, we're doing things legally. That is also defamation and libel that you printed and distributed."
Speaking of defamation and character assassination, Biafra has been ruthless in his attacks on his former bandmates in spoken word appearances, in the press and on the ATR web page. If, as Ray claims, most of Biafra's charges are untrue, then why hasn't the band threatened to sue him, instead of the press outlets that quote him? Why can Biafra speak without fear? "I don't know," says Ray. "We made a decision not to go after him for defamation. He hasn't got much big press, but if someone with wide distribution starts doing it, we might rethink that."There are two levels to the case that will continue to be contentious, whether Biafra wins his appeal or not. One is the home of the Dead Kennedys catalogue; their collective titles sell somewhere around 100,000 copies a year, making them ATR's best-selling band by a landslide. Also at stake is the reputation of the band, one of the remaining few punk acts whose legacy hinges on its impeccable integrity. Until now, due largely to Biafra's insistent vision of the band, the Dead Kennedys have never fallen prey to the usual traps that ageing bands use to boost back catalogue sales: reunion tours, ubiquitous appearances on movie soundtracks, corporate-facelift repackaging, and most importantly, commercial endorsements.
It's this last issue that Biafra has spun into the central issue of the trial, claiming that both sides were in the process of settling the royalty dispute until an offer came from Levi's to use "Holiday in Cambodia" in a commercial. "We handled our disputes as adults and as friends, up until I refused to do the Levi's commercial," says Biafra. "Even the supposed royalty discrepancy was being discussed as adults, as we tried to get to the bottom of it. But as soon as I wouldn't do Levi's, they went running to Bill Graham's lawyer."
"He brought that up at the trial, and the jury found that false and untrue," fumes Ray, who's livid that "more journalists talk about [the Levi's issue] than they do Biafra's fraud. It's called spinning.' I'm sure you're familiar with the term, and Biafra's good at it. But I was the only one who called the ad agency to tell them it wasn't likely to happen. Anything else he says is just trying to distract people from his own actions against the band."
According to Greg Werckman of Ipecac Recordings, who was label manager of Alternative Tentacles for eight years, "Both sides are stretching this one. Jello brings it up a lot, but to be honest, Levi's shot the concept down," Werckman claims. "A lower-ranking person at Levi's had a list of several bands to include in an advertising campaign, and one of them was Dead Kennedys. This person contacted Ray about the potential, but it turned out the higher-ups shot them down and ended up using the Pretenders. Biafra claiming that they were offered money from Levi's is not true; the concept was discussed. However, Ray's claims that they were not interested in it is an absolute lie. He called me to ask me to help him convince Biafra to go for it because of what it would mean in terms of marketing for Dead Kennedys and the label as a whole."
When Biafra is presented with Ray's version of the Levi's story, he says, "I guess they've learned at least something about how the public sees our work. Because at the time, their take on Levi's was very different. Ray tried to bully me into knuckling under and doing the commercial. He called me up and threatened me on the phone twice. The second time, he said, Now I have to tell Klaus and there's going to be repercussions.' Then he slammed down the phone. The next thing I found out was that Klaus already knew, and had been lobbying two of my closest and most trusted friends to get them to push me to sell out to Levi's. When I confronted Klaus on this and pointed out what our band means to people and what the message of the band was, and how I would take 99 per cent of the shit if we turned around and stabbed everybody in the back by doing that, he said, Well, you should go to the press and tell them that we did the commercial to raise money for charity, and then we'll give five per cent to charity and divide up the rest.'" Biafra has repeated this story often at spoken word shows and on his latest album. Klaus Flouride has publicly denied Biafra's allegation.
When Ray is asked directly how he would approach such offers in the future, he says frankly, "I'd take them on a one-by-one case. I personally am not into doing endorsements. I don't like it. But if it came up that Darren's mom needed a couple of hundred thousand dollars for an operation, I might change. That's a human situation. Since the trial, I've learned that the Clash did an ad in England. And then there's the question of who's a good corporation and who's a bad one. In my experience, the size of the company is irrelevant. A small company can be worse than a big company. Everything's not a black and white situation like Biafra likes to paint it. All of this is the entertainment business; when you get into politics, it's not bumper stickers anymore. There are more complex issues that don't make good entertainment or good copy in a newspaper. My personal political viewpoint is that evolution starts with you, how you treat people. How do you treat your co-workers? Your family? Your friends? I was a waiter in college, and the worst people to serve were the Marxists. Talk is cheap and actions speak louder than words, and Biafra's actions spoke way louder than his words."
At issue is not just whether or not it's appropriate for Dead Kennedys songs to be "pimped," in Jello-speak, to commercials. At the heart of that matter is whether or not one ideologue in a band can block the rest of the band from deciding how their material can be used: should a band operate democratically, through consensus, or through dictatorship? There's no question that Biafra was the commanding force in the band, but what separated the Dead Kennedys from countless hardcore bands was the musicality and originality of their arrangements. None of Biafra's other musical projects have had the same potency as his work in the Dead Kennedys. In such a political case, it's easy to forget how great their music was.
"Music hits people on an emotional level," says Ray. "It can say more than words can. You'll listen to a piece of music over and over again. A good novel, you'll read once and maybe you'll read it again in 15 years. They both affect you, but music hits you on a different level. Klaus, D.H. and I don't want to be the politician/media types, but we enjoy listening to and playing music. The reason we were a great rock'n'roll band was because it was a collaboration. That's where it started from and that's where it's back to now. We've liberated the music.""In my opinion, Biafra could have found any three lounge musicians in the world and whipped together a great band," says V. Vale, the proprietor of the Bay Area alternative publishing house Re:Search and the late 70s punk zine Search and Destroy. "I've heard many lounge musicians who are really good, but they weren't lucky enough to get with a guy who writes original songs and has an original concept and be lucky enough to somehow get some breaks. The Dead Kennedys were the biggest American punk band for a while, with an international reputation. In my opinion, Biafra didn't assert himself enough. He was the leader of the fucking band! This was no co-operative. This was no collective. He came up with the songs, the concept, the name, the logo. Most people in this world are not like Biafra. They go out and they get a job. They don't take a stance and say, I'm going to start something myself.' They're basically ass-kissersno offense to anyone who has to work for a living."
In talking to both men, it's obvious that there isn't much love lost between Jello Biafra and East Bay Ray. Even if their business differences were ever smoothed over, they'd still have plenty to disagree about; during Ray's interview, he embarks on a tangent about why Jello's beloved Green Party was a spoiler who handed the U.S. election to George W. Bush.
Biafra paints Ray as the principal agitator, and when he discusses Klaus Flouride or D.H. Peligro, there's an instant shift in Biafra's tone of voice to one of sadness. Ray speaks with the tone of a vengeful victim who has spent years in the shadow of a powerful and charismatic figure. "We have to do what we know is right," states Ray emphatically. "He used to be able to manipulate us like that, but it's over and he doesn't realise it. Names aren't going to hurt us anymore. I hope that he realises all that stuff will bounce back at him one day."
Because ATR was prepared to pay the disputed back royalties, it seems a fair question to ask Ray if there were other, more personal issues at stake. "No! See? Biafra committed a fraud! Hello? How many more times do I have to say that?" says Ray, who somehow manages to be polite and apologetic even at his most indignant. "I don't know whether it was deliberate or not, but the band was being underpaid, and he didn't tell us we were being underpaid. That's where the fraud comes in. I don't know why people think it's okay for a band member not to tell the others about stuff that's theirs. Biafra made a mistake, and what needs to happen is he needs to admit that he made a mistake and then we need to move on. More music, less lawyers! He's the one dragging it out now. The money was there and a whistle-blower told us about it. He was paying himself 25 cents more per CD than the band. We didn't know that. He did not tell us the truth. We were trusting him."
Based on a 25 cent discrepancy on 100,000 albums a year, the financial stimulant for this case is the equivalent of approximately $6250 a year for each band memberincluding Biafra. Is that worth the heartbreak, character assassination and lawyers' fees? Greg Werckman speculates that the royalty issue is an extension of the personal divide between Ray and Biafra. "The mathematical errorno one picked up on it," says Werckman, who had left ATR just before the dispute flared up. "Ray was getting statements for years with this error on it. I was filling out these statements every three months, and I didn't catch it. Finally, when the question of royalty rates and the potential of a lawsuit was brought up, it was myself and the label manager at the time who discovered it. As soon as Jello found out about it, he said, That's terrible.' And obviously it effected Jello too, because a big part of that money is his. He said that we had to pay the band back right away. Ray seized upon that moment like, Aha, we caught them and they admit that we caught them, now here's my chance to get Dead Kennedys off Alternative Tentacles and into greener pastures.'"
Both Ray and Biafra insist that the other's reputation in the San Francisco has been tarnished. Says Biafra, "Locally, their reputationsRay's in particularprecedes them as being people who have been out of touch, uncaring, greedy, and over-the-hill bitter old wanna-be rock stars who don't really reach out to help anybody else. I have yet to have one person walk up to me and say that they believe those guys. Not one."
Ray counters, "Most people here in the Bay Area know Biafra more personally, so it's not really a problem," he chuckles slyly. "A lot of people won't say so publicly, because he has such access to the media and he's terrified people. Most people say, Oh, East Bay Ray from Dead Kennedys, cool! I love to listen to your music.'"
V. Vale argues that Biafra's personality was detrimental when it came to winning over a jury of 12 average Americans. "I'm not a lawyer," says Vale, "but when I watched the trial, and when I talked with a juror for about eight hours after the trial, that's when I realized how important it is to have the defendant coachedwhat they wear, their body language, their posture. Biafra is a leader. He's an orator, and most people are not sympathetic to that. Most people are intimidated by Biafra, and there's a reason: it takes a special person to do what he does. To be able to go up [on stage] without any notes and give a long rant that brings people to their feet clapping with a standing ovation after a spoken word thinghow many people can do that? Not very many.
"So here's the defendant, and here's these three guys acting all put-upon and yet funny at the same time," Vale continues. "If Biafra had made the jury laugh as much as the [band] had, he might have had an even chance. But he felt outraged by the lawsuit and wasn't coached to win the jury over. The three [other Dead Kennedys members] caused a lot of laughs, and the jury felt sympathetic and identified with them. Biafra, frankly, came off like a leader and arrogant."
One of Biafra's principle grounds for appeal is the jury's decision that Alternative Tentacles "failed to promote" the Dead Kennedys back catalogue in a manner consistent with other historically-renowned and now-defunct acts on major labels. The evidence entered to support this showed that the British label Cherry Red had re-released the DK's debut, Fresh Fruit For Rotting Vegetables, in a new package with five bonus tracks and launched it with a promotional campaign; in one month's time sales went from 5000 to 15,000.
Since the trial, Ray has remastered the band's catalogue and it has been released in Europe, along with a new live album; needless to say, all this was done without Biafra's co-operation. "The four back catalogue albums have been remastered from the original tapes by the original engineer," says Ray. "They hadn't been digitally converted in 13 years, and computer technology has changed dramatically. They sound great. I can't even listen to the old ones anymore; some of them have a real telephone tinny quality to them. The live CD shipped about 4000 in three weeks, which is amazing. Things are now selling about double what we did. There's also been a re-promotion campaign for the live record and the remastered CDs." All the "new" Dead Kennedys product got rave reviews in Kerrang magazine, which Ray feels is proof that ATR dropped the ball in exploiting the band's commercial possibilities.
Former ATR label manager Greg Werckman takes personal offense to the notion that the label even had the means to invest into promoting the Dead Kennedys. He testified on the topic at the trial in Biafra's defense. "It's unfortunate that the experts that Ray's side brought up were not dealing with labels like Alternative Tentacles. There was someone from Grateful Dead Records and other people who had worked at major labels. To a jury of people who don't know anything about the music industry, it seems huge; it seems there's millions of dollars involved, and the people in the jury think, Well, it sounds like the people at Alternative Tentacles should have spent a bit more to market Dead Kennedys.' But what they never saw or understood was that there was no other money at the label, and how every band was treated the same. There were times when I was not able to pay the employees on payroll, because we had so little money, and we had such a generous royalty rate. The bands always got paid first, and there were a few times when the staff didn't get paid. Eventually we'd make it up, but they'd have to go a couple of weeks without pay."
Biafra claims that the decision has larger ramifications than merely the marketing departments of low-budget indie labels. "It's not just the music industry, it's a bad case for industry in general," says Biafra. "Even N Sync could sue their label claiming if there'd been more ads, more CDs automatically would have been sold. It's preposterous to reward anybody damages for lack of promotion, under the premise that if x-amount more money had been spent on advertising, that x-amount more CDs would automatically have been sold. It's never been true in any industry, from films to typewriters to mothballs. The expert witness they relied on for this testimony was a guy who had never worked on music promotion at a record label; he was an accountant for Grateful Dead Records. He never should have been allowed to testify in the first place."
"That's the weakest part of their case," concurs V. Vale. "This is not a touring band. This is a band that hasn't been together in over 15 years. You're talking about a really old back catalogue. You don't see ads anywhere for ancient albums by anybody, period. It is not an industry standard. It's the same thing for a book. A book could have been a best-seller 15 years ago, but you don't see expensive major media and television ads for it 15 years later. It wouldn't do any good. It's just ridiculous.
"I think that no one believes that Biafra deliberately ripped off his bandmates," Vale continues. "Very, very few people. The general stance from everyone I've talked to regarding the failure to promote' thing, is that the only reason the Dead Kennedys have sold so many records over the last 16 yearscompared to other great bands that have been forgotten, like the Avengers who were just as big for a while, locallyis because Biafra is always out there touring and being in the media and magazines and doing spoken word performances and getting the name Dead Kennedys out there. He's the reason they made as much money as they did in the years since the band broke up."
Ray doesn't discuss the "failure to promote" clause at length, except in the context of what he sees as a betrayal of the original agreement between Dead Kennedys and ATR. "Alternative Tentacles was started by the band," says Ray. "I was the one who produced and mixed the first single and sold it out of the back of my car. Alternative Tentacles was supposed to put the artist and the band first. Since about the early 90s, there was a sense that we were just a vehicle for the label. We were just the cash cow. In 1997, I was getting a sense of arrogance. Klaus, D.H. and I didn't matter anymore, it was all Biafra and Alternative Tentacles. We support a lot of those bands. That's why we put a lot of money into the label, and why we didn't take our fair cut. But Biafra puts out a three-record picture disc of one of his spoken word records and hired outside PR agents for thousands of dollars; meanwhile Klaus had a record on Alternative Tentacles, and Klaus is told we have no money for promotion.' That's not right. Basically, a conflict of interest developed between the band's interest and the interest of Biafra and Alternative Tentacles. He put Alternative Tentacles' interest over the band's, and that's what the court case was about. It was not the right thing to do in his situation."
"It's the exact opposite of conflict of interest," fumes Biafra. "Nobody cares more about Dead Kennedys past and presentand did more to help push it and promote it and maintain its legacy and respect and integritythan I have. That would not have happened if it was on some other corporate label who didn't give a shit. If it's your baby, you work your butt off to protect it. I'm really galled by this attitude they're taking that every penny that came into the label should automatically have gone to them. That's ridiculous. Even their own solo albums came out of the money that any label uses in order to help other artists, and hopefully expand.
"There was once a sense of community and respect among everybody in the band," continues Biafra, who celebrated ATR's 22nd anniversary in May. "We wanted to help other people, and not necessarily the most obvious ones, but other ones who wanted to operate completely outside the mainstream entertainment industry without having to wimp out and compromise their sound or have their lyrics edited. Everybody was down with that for a long time. It was only after they began hanging out with these corporate lawyers that they decided that every last penny a label makes should go straight into their pockets."
Another universal issue raised by the trial is whether a popular artist who owns their own label has to appear extra careful not to appear like the jewel in the crown. Werckman insists that Biafra has a very hands-off approach to Alternative Tentacles, as does Werckman's current business partner at Ipecac, Mike Patton (Faith No More, Mr. Bungle); Werckman says Ipecac was modelled in the ATR mould. "Mike Patton is my partner and is obviously an artist that does a lot on our label, and it's very similar to the way Jello was," says Werckman. "Mike is not in the office on a daily basis, and doesn't handle marketing or advertising, and neither did Jello. Jello didn't come to the office except to pick up mail every couple of weeks. He trusted the people he hired to run his label. When I was hired to manage the label, it was explained to me that all artists should be treated the same. There's no real grey area for thinking, Should I feel bad because my records sell more?' That was a given.
"One of the first things Jello told me when I started managing Alternative Tentacles was that all Dead Kennedys-related things are why Alternative Tentacles exist, and so all related projects will be released on Alternative Tentacles," Werckman continues. "We did solo records by Klaus and Darren, and Ray had, in my opinion, one of the worst-sounding records in the history of Alternative Tentacles, which the label put out and it got the same treatment that NoMeansNo's record got. Ray sometimes claims that the royalty rate is higher at other labels, but what he neglects to point out is those labels also charge bands for advertising, promotion, packagingall the industry standard chargebacks that Alternative Tentacles does not do at all."
Ray recently negotiated North American distribution rights to the re-mastered catalogue and the new live album with Manifesto, home of Cinerama, Wedding Present, the Lilys, Tim Buckley re-issues, and Tom Waits tribute albums. Because Biafra is such an influential figure in punk rock not to mention extremely vocal, and when it comes to this case, extremely livid most labels have shied away from getting involved, citing "Jello chill."
It's brought out attention-seekers like Bob Graham of Toronto label Muck Records, who was boasting to anyone who would listenincluding this writerthat he had a close advisory relationship with the other three DKs, handled their solo projects (including Jumbo Shrimp, featuring Ray and Klaus), was probably going to get the rights to the catalogue, and was going to sue Biafra himself for defamation. "We have no business relationship with Muck Records," says Ray, about Jumbo Shrimp. "Peligro has an album called Welcome to America on Muck. I know Bob was interested in the Dead Kennedys catalogue, and I think he's talked to Klaus once or twice, but I don't think anything has come forward on that front." While very eager to talk a few months back, Bob Graham did not return calls for this story.
Ray has much bigger fish to fry. "I talked to both Fat Mike [of Fat Wreck Chords] and Brett at Epitaph," he says. "They both said that they talked to Biafra. They had formal offers in and then they withdrew them." Epitaph officially denies this, although an off-the-record employee admits it's true. "Fat Mike said it's because he talked to Biafra and he didn't have time for it," Ray continues. "Epitaph and Fat Wreck are owned by musicians, and their image in the media is importantturns out it's more important than the record label. Other record labels are run by people who get their job satisfaction in promoting and distributing good music, they don't care that much."
"Biafra and his followers have been threatening and intimidating labels with phone and letter threats, etc.," Ray continues. "That is way out of line and I can't believe that anyone who professes political awareness would support such goon-like tactics. Biafra has not disavowed these acts. Biafra lost in court and is bitter; unethical attempts have been made to eliminate labels interested in the DKs music in the hope of forcing us back to ATR, a label that defrauded Dead Kennedys. Biafra has no regard for Klaus, D.H. or my rights or the court order."
Greg Werckman explains, "Before a label picks up the catalogue, Jello's attorney has the right to let the label know that he's not interested in promoting something that he's not a part of. They're doing things without his input, yet they want him to just go along with any record label that they want to put it out on. Now when Jello voices his opinion about a deal or a potential suitorwell, if I'm a label and I might be putting out Dead Kennedys records yet Jello is no longer a part of it, that would cause me some concern."
One of the many reasons Biafra is upset about the remastered and repackaged albums is that the songwriting credits have been altered. Almost half of the entire DK songbook has had both lyrics and music credited to Biafra for over 15 years, with all but eight of the 76 songs featuring Biafra's lyrics. During the trial, the other three testified that the songwriting was in fact collaborative, and therefore ownership of the songs rested with the band partnership, Decay Music, and not the individual songwriter; the jury agreed.
Says Biafra, "It's been reported to me by those who've seen these [reissues] that they've changed all the songwriting credits so that I no longer wrote any of the music, but that D.H. Peligro wrote songs two years before he was in the band."
"That was a printer's mistake," says Ray. "They will be corrected in the next batch, next round. It was an honest mistake that he's turned into this big evil conspiracy. It's silly. The way that the money is being divided for the songwriting credits is being done the exact same way it's been done for 20 years. That has not changed."
Ray says he considers Biafra's chances of winning the appeal "astronomical." "The end has started already," says Ray. "That's why he's getting more vocal and more mean-spirited. The attacks on us are ultimately not going to make him look good. People love the band. I love the band. I even love his lyrics. The way I see it, if he can't have the Dead Kennedys, he wants to destroy it. And that's not right, because there are other people involved and it's been out for 20 years. We've been on other record labels before. In England we're on Cherry Red, and that hasn't hurt the band. It's time to move on, because we've been through too much.
"I believe in democracy, and the re-mastered CDs are prime examples of that. If you had an old CD of Give Me Convenience and a new CD of it, I wouldn't even have to tell you about the difference. You'd see right there that democracy has been a good thing. Or putting out the live record. There are a lot of bootlegs out there, and this record is a million times better than any bootleg out there. And now the band's being compensated for it. The band and the music we created together is bigger than any of us mere mortals. Our original message was not to follow us, but to think for yourself. This squabble will be over in a year or two, but the music will live on. The Beatles sued each other, and you probably don't even remember why. The Misfits sued one another, so did the Sex Pistols. Who cares? People still listen to the Sex Pistols, and people will still listen to us. We were always about thinking for yourself and being tolerant of other viewpoints, because you might learn something. It's not about do what we say.'
"The new stuff will come out, and that's what we want to push," Ray continues, good-naturedly joking with this journalist that the "case is all phony to generate interest in the band!" "We don't want to push what happened in the past and talk about the mistake We do have to respond to it and say, We're good people! We know what punk is: it's about thinking for yourself and having control of your destiny.' That's what Dead Kennedys are about and that's what we got."
"Biafra, not the Dead Kennedys, stands for integrity," says V. Vale. "To me, Biafra, whom I consider synonymous with the Dead Kennedys, means one thing: no sell-out. You have to remember that Biafra was one of the very first of the punk rockers to take consciousness a little bit further, and absolutely refused to have their music on a corporate major label. To me, there are very few people you can trust, and Biafra is one of them. He will not sell you down the river."
"I know for a fact that Darren approached Mike Patton to find out if he would be interested in singing with a Dead Kennedys reunion tour," offers Greg Werckman. "What is that about? I know those three were in Dead Kennedys, but a Dead Kennedys tour without Biafra?"
When asked about this in a follow-up e-mail, Ray responds, "I don't know about those people being approached. But it's an interesting idea. The music is good and a lot of people never saw our music live. What do you think?"
For fans of the band, of Biafra, and of Alternative Tentacles, everyone has already lost no matter who wins the appeal. "It won't be the end of the world for the label, but this [lawsuit] is damaging the credibility of Dead Kennedys as artists," says Werckman. "I don't know if both sides fully understand how damaging it is. As a fan, the reason I became interested in Dead Kennedys was because they had something to say. They showed that if you get involved, you could screw with the government and get active and keep your integrity."
Werckman says the cumulative acrimony of the case is "beyond crushing to me as a fan. And I've heard that from quite a few other people, people who aren't even taking sides. People say, I don't want to say either Jello or Ray is right, but this is all wrong.'"
