MAKE RUIN FOR JELLO

The Dead Kennedys-Jello Biafra trial could hold grave consequences for songwriters and record companies

By V. Vale

"After today's jury decision, anybody dissatisfied with lack of sales can sue anyone for lack of advertising," argued Dead Kennedys' vocalist Jello Biafra after his May state court trial in San Francisco. "The jury left the door wide open for an avalanche of frivolous lawsuits without foundation. And if I had known that the 1991 agreement I signed five years after the band broke up--which I thought was for just in case one of us got hit by a truck--would lay the foundation for me being ripped off, I never would have signed it."

Lawsuits always come down to money and control, and the coveted property in question-the six Dead Kennedys albums produced from 1980-1987--may be worth millions, according to the plaintiffs. In October 1998 guitarist East Bay Ray (born Ray Pepperell) hired lawyer Michael Ashburne and led former bandmates Klaus Fluoride (Geoffrey Lyall) and D.H. Peligro (Darren Henley) in a suit against lead singer Jello Biafra, alleging failure to promote back catalog, underpayment of royalties, and other charges. Even though the band broke up in 1986, the albums now sell nearly 100,000 units yearly, accounting for about 50% of the annual income for Alternative Tentacles Records (ATR), a sole proprietorship owned by Biafra. He has never taken a salary, and leaves the day-to-day running of the label to others--hence the current legal problem: as owner, he is solely responsible for any accounting errors or financial agreements.

Biafra doesn't dispute that back royalties were due--they've already been paid--but he finds the "Failure to Promote" charge alarming. Witnesses for the defense (including a bleached-blond Dexter Holland of Offspring) testified that expensive ads for back catalog accomplish nothing and are not standard indie label practice--but this was an opinion. Convincing evidence to the contrary was a simple chart showing Cherry Red Records' U.K. digi-pack rerelease of the band's first album, Fresh Fruit for Rotting Vegetables, which included five bonus tracks. In a month, sales jumped from 5,000 to 15,000 units. This one concrete example sufficed for the jury to grant $50,000 damages for allegedly "lost" sales (the plaintiff's expert witness, Grateful Dead Records' CPA Tim Jorstad, had recommended $375,000).

Should Alternative Tentacles have re-released the DK's entire output in shiny new digi-packs with bonus tracks? Perhaps. But should a jury have the power to decide if an underground band is being properly marketed? It's a bizarre notion. In fact, the whole idea of punk rockers suing each other over copyrights and financial contract details seems antithetical to the spirit of the original movement--especially the anti-corporate Dead Kennedys.

Among early punk bands, written contracts were scarce indeed. Few back then could have anticipated this current clash of cultures: punk rock, with its smash-the-state, hate-the-business-world underground ethic, trying to sort out its codes of honor amidst the music industry's almost-alien legal system involving contracts with their emphasis on trickily-worded clauses.

From their first gig in July 1978, the Dead Kennedys espoused a socially critical, Do-It-Yourself mission statement, critiquing U.K. punk forebearers the Clash and the Sex Pistols for their corporate record affiliations and rock star yearnings. Vowing never to be on a major label, the DKs embarked on a series of grinding worldwide tours which eventually brought them a loyal niche following that endures to this day. Arguably the Dead Kennedys were the first to bring punk rock culture not just to America's hinterlands, but to Italy, Germany, Finland and the former U.S.S.R. as well.

The success of the Dead Kennedys may be attributed to their leader's ingenious guerrilla marketing that, with few expenditures, rapidly built their "brand." In 1979 Jello Biafra (born Eric Boucher) ran for Mayor of San Francisco, finishing fourth and generating a buzz that brought the band nationwide fame, amid protests that someone could run for public office under a name like "Jello Biafra." The 1987 Frankenchrist obscenity trial, with Biafra as sole defendant, engendered international publicity from which all members profited. After the trial, record sales rose rapidly and have continued.

Transcending mere music, the band's albums employed didactic, text-heavy artwork to deliver a full-blown political-punk outlook that helped define a subculture. Even though the Dead Kennedys had broken up in 1986, they became a household name thanks to Biafra's appearances on The Oprah Show and other major media forums. Since then, Biafra's high profile in the press has continued to update and expand the band's legacy and message, helping to maintain back-catalog sales. A now-established icon of political radicalism, he was even nominated by the Green Party as a Presidential candidate, advocating a maximum wage of $100,000 and the banning of SUV's.

If the Dead Kennedys had been a wolf clan, Biafra would be the alpha male, Ray the beta, and the others pack members. Bassist Klaus Fluoride has characterized Ray as "the bean counter," and from 1984 on Ray handled licensing deals and the checkbook, dividing the income between the bills and the band members. Ray asserts that Decay Music was formed as a legal partnership entity; Biafra contends it was never more than a name on a checkbook used to pay bills.

It's difficult to precisely trace how relations between Ray and Biafra deteriorated, but the two were always in competition. Biafra believes the breaking point was reached in 1997 when he vetoed the use of "Holiday in Cambodia" to promote Levi's for a potential $200,000. A written memo submitted as evidence from employee Kristin Lange seems to document Ray and Klaus's approval of this licensing. Biafra feels that this conflict sparked the lawsuit and turned the equanimical Klaus Fluoride against him. Although Ray has said he was not in favor of licensing to Levi's, at trial's end he was showing journalists a Clash interview in which Joe Strummer favorably advocates such "selling out."

What would happen if the Dead Kennedys' music were to reappear on a corporate label and in corporate advertisements, as now seems destined to happen? "If a Rolling Stones' song appears in a Levi's commercial, no problem," said local deejay David Bassin. "But in the spirit of what the Dead Kennedys are all about, this would not be an appropriate venue for use of their music."

At the end of the three week trial, the jury said "Yes" to almost every final question in favor of the plaintiffs. East Bay Ray, who hired lawyers renowned for entertainment litigation, views this as an affirmation of the jury system. Another viewpoint might be: the side with the best lawyers wins.

The wording of the final questions glossed over issues vital to the defense. The very first question, "Do you find on the evidence presented ... that the four members of DEAD KENNEDYS agreed that Decay Music would own the rights to the band's creative works?" needs considerable dissection. To begin with, copyright issues are governed by federal rulings. Both Biafra and Ray have copyrighted entire songs (lyrics/music) as individuals, and there's no written evidence of any transferal of ownership to Decay Music. The plaintiffs' contention is that the group cooperatively and collectively wrote the songs, but out of the band's 76 recorded songs Biafra receives lyrics/music credit for 36, wrote lyrics for 32-only 8 songs give him no credit. Biafra claims that in the majority of instances he came to rehearsals with his lyrics in a state of near-completion and with tunes which he sang A CAPELLA, but the jury ruled against him, probably because he doesn't read music or play an instrument well. (Can the leader/vocalist for a band be credited as songwriter if he does not read or write music and play an instrument? Certainly many blues and folk musicians have been musically illiterate, while such pop artists as Boy George and George Clinton have reportedly sung their songs into tape recorders sans accompaniment and received full copyright protection.)

Another key issue of the lawsuit concerns the nature of Decay Music: is it a partnership operating by majority vote? The jury said yes, which means de facto that the three plaintiffs could dictate all future decisions. A critical meeting occurred on September 30, 1998, in which the three plaintiffs, in the absence of Biafra, voted to take the band's albums away from the Alternative Tentacles label. Despite evidence of heavy scheduling conflicts, the jury ruled that Biafra had been given reasonable notice to attend, even if he had not been informed of the meeting's important agenda beforehand.

Initially, the lawsuit had been launched because the newly-hired Kristin Lange discovered a bookkeeping error in the multiplier used to calculate the Dead Kennedys' royalties. She helped the jury decide that a deliberate cover-up had occurred, based on letters written to lawyer Michael Ashburne by Biafra's personal attorney, Rick Stott. In the letters, Stott denied these monies were due (for technical reasons), and then tried to use them as a bargaining chip to secure a lifetime lease for the five DK's albums on the Alternative Tentacles label. Biafra had read these letters, but also claims he had initially told Stott to "Just pay 'em." Of all the issues in question, this appears to have been Biafra's biggest mistake: going along with the delaying of the payment. According to Biafra there were other factors involved at this time, such as all communication having to go through lawyers, but the jury did not sympathize. These past-due royalties of $76,000 were paid in January, 2000. The jury awarded interest damages as well.

Neither Stott nor Biafra created a favorable impression on the jury, who must always be wooed. An alternate juror who did not attend final deliberations characterized Stott as a "weasel" and Biafra as "caustic, hostile and awkward." The same juror felt that many of the defense's witnesses, including Offspring's Holland, had provided damaging or at least unhelpful testimony. But she also felt that the word "fraud" seemed much too extreme, and that nobody had deliberately tried to defraud anyone else, despite the jury's finding that Biafra had engaged in fraudulent conduct. East Bay Ray was also judged guilty of fraud regarding mismanagement of the business partnership; his penalty was $5,000 as contrasted to the total $200,000 levied on Biafra. The jury also found Biafra guilty of two "malice" charges as their foundation for awarding $20,000 punitive damages, based mainly on the fact that he admitted seeing all of Stott's letters before they were sent, thus granting tacit approval of them, regardless of whether he fully understood all their legal ramifications. (The aforementioned juror felt he had not.)

Although East Bay Ray granted an interview for over five hours, at the end he stated that nothing was for publication. When pressed for a statement, he approved the following summation: "There are certain acts Biafra was put on trial for, and they were found to be wrongful by the jury. The jury decided as to what were the true facts. I feel sorry for Biafra-that he hasn't figured out he made a mistake. It's a tragedy, really. We're just mere mortals, we make mistakes, but our art will outlive all this. The music's bigger than all of this, and a few years from now most people won't remember it ever happened." As cited in his lawyer's closing argument, Ray also wrote, "Biafra, we're going to have to deal with each other for the rest of our lives" as a preface to what Biafra termed a "phantom" offer of conciliation. Ray's gift for homespun phraseology appears to have been remarkably effective upon the jurors.

Probably most distressing to the defendant is the potential loss of control over the band's legacy of albums. "Ray's taken away all that I've worked for for 20 years: the songs I wrote, everything. Why bother obsessively doing creative work and pursuing certain ideals if later on someone will betray you and take it all away from you?"

Dawn Holliday, who books the San Francisco nightclub Slim's, said, "This is not a jury of peers. These people don't have the faintest idea how underground bands and labels work. Did anybody point out that if Jello Biafra had not been out there for the past 14 years, there would have been no income? Those three band members should get down on their knees and thank him."

Neither the plaintiffs nor Biafra have achieved massive commercial success since the band's breakup--the four together had a unique chemistry. Still, is making mega-bucks the ultimate standard for judging success? As leader, Biafra directed the band's anti-corporate career from 1978-1986. But now, seeking "financial justice," the ex-band personnel want to take the Dead Kennedys' recordings and put them up for sale to the most appropriate bidder, possibly leasing songs to corporate ad agencies and Hollywood movie productions as well--something Biafra has always been against. In fact, Ray already licensed the band's cover of "Viva Las Vegas" to the 1997 film Fear and Loathing in Las Vegas without ever asking Biafra.

But, for the moment, this story remains unfinished. Biafra has issued a press statement on the Alternative Tentacles website: "We are going to appeal. The damages awarded for 'lack of promotion' are especially bizarre and potentially very dangerous. If allowed to stand, this will set a precedent whereby anyone whose product doesn't sell as much as they would like, can sue someone for lack of promotion. Dead Kennedys' albums will continue to be available on Alternative Tentacles. Please keep in mind that a few years ago the Philadelphia Fraternal Order of Police was awarded $2 million damages from AT over the Crucifucks album. That too was thrown out of court on appeal."