Punks at War
Dead Kennedys, Alternative Tentacles, and the law suit that threatens punk's most enduring and provocative partnership
It was January 1978, and the Winterland was packed, and the
Sex Pistols had just played their last show anywhere, and it had ended with lead
singer Johnny Rotten cackling these choice parting words: "Ever get the
feeling you've been cheated?" Cheated wasn't the half of it. The Sex Pistols
were the most famous band to come out of a British punk scene that was just
beginning to find its footing in the U.S. The band's breakup wasn't just a musical
event; followers lost a cultural-political icon. Without the Sex Pistols - that
sneering bunch of self proclaimed anarchists who lived to challenge
conventional notions of what a rock band should be – American punks would have
to figure things out for themselves.
At North Beach's Mabuhay Gardens, the figuring had already
started. While radio stations were clogging themselves with ELO and the Eagles,
the Mabuhay was showcasing bands and music that were not just alternative, but
challenging. Many of the bands took stylistic cues from the Sex Pistols and Ramones,
but others, including Flipper and the Residents, experimented wildly, bent on
befuddling their audiences more than entertaining them.
It was a culture of self-determination, where "do it
yourself' was the operating credo. Who said you had to suck up to some big
label to get your records out? Who said that Rolling Stone was the only music
magazine on Earth? Fanzines such as Search and Destroy and Punk Globe sprang up
to document the scene, both within and outside the Bay Area. Mainstream media
outlets started to take a peek at what these strangely dressed folks were up
to. Record labels (like 415 Records) started putting out singles and
compilations.
And by 1978, a transplant to San Francisco from Boulder,
Colo., name of Jello Biafra, né Eric Boucher, had decided he wanted
to do more than just watch his favorite bands; he wanted to be up there on the
Mabuhay's stage too.
Biafra had saved some money, and so he gathered up three
musicians – guitarist East Bay Ray, bassist Klaus Flouride, and drummer D.H.
Peligro (who replaced early drummer Bruce Slesinger). Biafra, who wrote lyrics,
wanted to put forth a band that was political; San Francisco was providing
ample material. This was the time of the Jonestown massacre, and Dan White's
murder of Supervisor Harvey Milk and Mayor George Moscone (and that's not to
mention White's infamous and absurd "Twinkie defense").
And so the Dead Kennedys - and, simultaneously, Alternative
Tentacles Records - were formed. The
story of AT and DK is, to a remarkable extent, the story of punk rock in San
Francisco.
"[Alternative Tentacles] was a dream more than a
business plan," Biafra said in a telephone interview
in early June, speaking from a downtown San Francisco
office. "It was something I felt we had to do to document all the great music that was going on that wasn't
being recorded. I saw these amazing bands like the Avengers, Negative Trend, the Sleeperz, Dils, Offs,
Mutants, UXA, Crime, Nuns - all of 'em breaking up before they put out what would’ve
been some of the best albums any band's ever made.
"I knew that if I ever had any money, I wanted to do a
record label to correct the situation, to help fix that"
Alternative Tentacles wasn't envisioned as the relatively
wide-ranging label it is today. Back in 1979, it was just supposed to release a
single, "California Uber Alles." But on the strength of that single
and the Dead Kennedys' live shows, the group with one of the more politically
sacrilegious names in
America got a reputation as one of the most interesting
bands in San Francisco.
Even if the group didn't quite fit the clichéd definition of
punk rock. And it didn't.
The Dead Kennedys didn't spike their hair, and while most
punk bands of that era marched in a strict lock step - both in terms of sound
(three-chord, Ramones-y blasts) and politics (sobersided anti-Reaganism) – the Dead
Remiedys instead played rockabilly-on Benzedrine-fusillades and often spoofed
pop songs of the day. Singing in nasal, piercing tones, taking lyrical shots at
whomever struck his momentary fancy, Biafra gave punk something it thought it
wasn't supposed to have: a sense of humor.
"California Uber Alles," for example, posited a
"suede-denim secret police" state, controlled by then-California Gov.
Jerry Brown, where people would "jog for the master race ."
"Holiday in Cambodia"
Disemboweled snotty post-grads who pro-claimed their hipness
and whined about their bosses, suggesting that the whiners would "work
harder with a gun in your back/ For a bowl of rice a day."
Biafra was always the most visible and vocal member of the
band, quick with a snappy line and good
for a prank, the most famous being his 1979 run for mayor of San Francisco.
Though parts of his platform addressed what he considered legitimate, concerns
- he lobbied for, and still supports, legalizing squatters' rights - much of his
candidacy was decidedly goofball, calling for the public auction of city
positions, the establishment of a legal board of bribery, and the requirement that
Financial District workers wear clown suits. When Dianne Feinstein called for a
cleaner city, Biafra was vacuuming leaves off her front lawn the next day. In a
city that felt worn and cynical after the Jonestown and White incidents,
Biafra's campaign proved a tonic; he finished fourth out of 10 candidates, getting
approximately 4 percent of the vote.
Biafra, the Dead Kennedys, and Alternative thus earned
reputations as the leading provocateurs of punk rock. To this day the Dead
Kennedys account for more than half of Alternative Tentacles’ sales. Account. As
Biafra puts it, “Alternative Tentacles remains one giant prank against the mainstream
entertainment industry and the agendas of the corporations that own
it."
But this irony-filled approach to life in and around the
recording industry has led Biafra and his label into a series of legal
troubles.
In 1986, San Francisco and Los Angeles police raided Biafra's
home, and he was subsequently charged with distribution of harmful matter to minors
- that is, a poster of a sexually explicit painting by Swiss artist H.R Giger
titled Landscape #20: Where Are We Coming From, which was included in copies of
the Dead Kennedys' 1985 album Frankenchrist.
The Los Angeles District Attorney's Office prosecuted Biafra on obscenity
charges, which could have led to a one-year jail term and $2,000 fine. But the
trial of the criminal case, much of which focused on First Amendment arguments over
whether the painting was indeed obscene, resulted in a hung jury. Biafra had
won, but the emotional and financial stress of the case helped break up the
band that year, after it released a final album, Bedtime for Democracy.
Biafra now; Klaus and Biafra in DK days; Ray now.
Then in 1996 the Philadelphia Fraternal Order of Police and
Sgt. John Whalen sued Borders Books, Biafra, Alternative Tentacles, and one of
the label's bands, the Crucifucks, for defamation and copyright Infringement.
That band had used a photograph of a police officer lying dead next to a squad
car on the back of its 1992 album Our Will Be Done, which included anti-police
songs such as “Pigs in a Blanket” and “Cops for Fertilizer”. The photo was
posed, with Whalen playing the dead officer; it had originally been used by the
Philadelphia FOP as a part of a mid-‘80s promotional campaign for a police wage
hike. In April 1997, a federal judge ordered the band to pay the Philadelphia
FOP $2.2 million. Three months later, that judgment was overturned, and the case was
eventually dismissed.
So Biafra's label prepares to celebrate its 20th anniversary
this week as one of the luckier punk ventures in history. It has done what few
punk rock labels ever do - survive - and has remained, by virtually all
accounts, supportive of punk rock (as loosely defined) locally, nationally, and
globally.
But Saturday's celebration might be a more inclusive and
happier affair if not for yet another lawsuit, one that challenges the credibility
and integrity of the Alternative Tentacles label, and that, regardless of the outcome,
will leave noone who was once a Dead Kennedy unwounded.
On Sept. 30 of last year, former Dead Kennedys members East
Bay Ray, Klaus Flouride, and D.H. Peligro (born Ray Pepperell, Geoffrey Lyall,
and Darren Henley, respectively) sat down and voted to terminate their relationship with Alternative Te ntacles. Ray, who has
acted as the official spokesperson for the three rebelling band members, says he discovered in 1996
that Alternative Tentacles had raised the wholesale price of its CDs without informing
the band. Ray and the two other former Dead Kennedys argue that the increase in
wholesale prices should have resulted in higher royalties on Dead Kennedys
sales. In their suit, they claim Biafra took profits from the wholesale price
increase for himself.
Greg Werckman, who was working as Alternative Tentacles'
label manager at the time (and is now
Biafra's manager), says the label wasn't obliged to increase
the band's royalty rate. Proceeds from the increase in the wholesale price were
fed into overhead for the label, a financial move that, he contends, does not
violate the Alternative Tentacles’ agreement with the Dead Kennedys. Werckman
does acknowledge that in 1997 he and Ray sat down to go over the accounting of
the band’s royalties (as well as those for the solo albums that Fluoride
recorded for AT), and found that the royalties had been calculated from a
formula that left the Dead Kennedys underpaid on record sales.
It was, in Werckman’s view, an honest mistake, and he
informed Biafra of the discrepancy. “Ray does have a case, not for a higher
royalty rate, but for back payment.” Werckman says. The royalty shortage amounted
to about $75,000, which Biafra placed into a trust account, to be released to the
band either with his permission or through a court order.
But the argument isn't entirely about royalties. It's also
about loyalty.
Ray, Flouride, and Peligro say that Alternative Tentacles
was originally formed, owned, and controlled by the entire Dead Kennedys band.
When the group broke up in 1986, they say, the other members ceded
ownership of the label to Biafra alone in an oral agreement
that required him to not only properly administer royalties to the Dead
Kenneds, but also promote and grant "most favored nation” status to the
group. That status required Biafra to ensure that the Dead Kennedys' royalty
rate would be as highly paid as any other band on the label. (Werckman contends that
no such royalty arrangement ever existed.)
The Dead Kennedys band was, itself, a partnership, formed in
1981 and known as Decay Music. The three dissenting former members of the band
felt they could therefore vote to sever the Dead Kennedys' connection to
Alternative Tentacles. And they did so at a meeting last September. (Biafra did
not vote; in a court filing, he claims that he was out of town at the time, and
that his offer to send a proxy to cast his vote was refused. Even if Biafra had
been there, say Ray's lawyers, his vote would have been moot because, they say,
he has a conflict of interest as a partner in Decay Music and owner of Alternative Tentacles.)
Ray says that he never wanted to get involved in a lawsuit
In fact, he says, early in 1998, he, Flouride, and Peligro hired an attorney, Michael
Ashburne, who told them that he didn't do litigation. "We said, 'Well, we won't
need to go that far. We've known each other for 20 years, we're partners
together,' “ says Ray.
But when Biafra continued to argue that the three former
members were not owed anything, they sued Biafra both individually and as owner
of Alternative Tentacles, as well as Mordam Records, which distributes
Alternative Tentacles’ records. The suit, files on Oct. 29, 1998, seeks the
right to control the Dead Kennedys’ catalog, as least $50,000 in damages, and
an injunction preventing both Biafra and Mordam from selling or distributing
Dead Kennedys recordings.
Biafra countersued in November and attempted to move the
case to federal court, claiming that it was an issue of copyright law properly
decided in a federal venue. Senior District Judge D. Lowell Jensen disagreed, ruling
it was a simple contract dispute; he remanded the case to San Francisco
Superior Court and ordered Biafra to pay $12,160.50 in legal fees for, essentially,
wasting everyone's time trying to make a routine state contract suit into a
federal case.
At first, Biafra doesn't want to discuss any of the legal
problems. He's feeling harried, having spent most of the day talking to
reporters about Alternative Tentacles, and sounds tired. "I don't
know," he sighs. "It's all a pretty concocted attempt at fraud on their
side. That's all I'm going to say right now."
But that's not really all. "Everything they've said is
completely untrue," he claims. "It's an attempt to take something
that doesn't belong to them, and try and shake somebody down for money, all
because I wouldn't sell out 'Holiday in Cambodia' and Dead Kennedys and
everything we represented to a Levi's commercial. The ad agency representing Levi's wanted to put
'Holiday in Cambodia' in a Dockers commercial, no less."
And this claim illustrates the central paradox of the
Alternative Tentacles/Dead Kennedys lawsuit: Members of a band that poked holes
in the craven, commercial, lying facade of modern life are accusing one another
of being craven commercial liars.
For example, David M. Given, a San Francisco lawyer
representing Ray, Peligro, and Flouride, uses this calm legal language to characterize
Biafra's assertion about the Levi's ad: "A bunch of horseshit"
All sides agree that the band was approached with some sort
of offer to use a song in a commercial. Given says Ray told other band members
of the offer, as he would with any DK-related business offer, but they “weren’t
down with it, and it never happened.”
Werckman holds a sort of middle ground in the Levi’s
argument, saying that “Holiday in Cambodia” was just one of about 30 songs the
ad agency was considering for the commercial, and in the end the agency decided
to use a different song.
Still, Biafra argues that the Levi’s situation cuts to the
heart of the issue in dispute: preserving the integrity of his old band and of
his record label. “The reputation of Dead Kennedys and my own reputation are cemented
and linked," he says. "If I screw up, it screws up the legacy of Dead
Kennedys. If the other guys go and screw up, it screws up my personal reputation.
If 'Holiday in Cambodia' wound up in a Levi's commercial, everybody would blame
me. I might even get beat up again." (The beating Biafra references
happened in 1994 at Berkeley's 924 Gilman club, where he was attacked by people
shouting he was a "rock star" and "sellout.") '''That's not
fair. To put it mildly, that's not fair."
As both sides claim the moral high ground, the ground
gradually seems to transform itself into empty or unprovable rhetoric. Biafra
says the consequence of this war of words is "a frivolous, mean-spirited
lawsuit, where the only people who win in a situation like that are lawyers
laughing all the way to the bank."
But don't his former bandmates have the right to separate
themselves from Alternative Tentacles?
''Whether they have the right to do it or not, is it morally
right to do it in the first place? That speaks volumes about where their heads are
at, as far as I'm concerned. They don't give a damn about anything but quick
free money. And that's not what Dead Kennedys or Alternative Tentacles has ever
been about"
"Biafra was obviously the media person," Ray
retorts, "but a media person is not the whole thing that makes a band ....
I set up the label and ran it for the first three years, and I'm given no
credit for it right now. Keeping the Dead Kennedys independent, and the fact
that Biafra has a nice big mansion on Diamond Heights, is a direct result of my
efforts."
"If Biafra weren't the label, he would be carrying the
fucking flag up the hill," Given says, "screaming about corporate
greed."
Werckman calls the dispute "pathetic on both
sides."
There is plenty of time for additional recrimination and response.
The case is scheduled to go to trial on Sept. 27.
In punk rock, as in most genres of pop music, scenes come
and go. And if punk in San Francisco has never died off, it has never again approached
the fertility that it enjoyed in the late '70s and the early ‘80’s.
In 1982, around the time that Alternative Tentacles stopped
being the Dead Kennedys’ vanity label and began releasing other records in
earnest, the late Tim Yohannon and a group of others founded the fanzine MaximumRockandRoll in San Francisco, one
of the leading arbiters of punk ideology (even though many feel that its view
of punk rock is strict, misguided, and, at this point, outdated) .
In 1994, the fanzine banned Alternative Tentacles from
advertising in its pages, and refused to review its record releases, claiming that
it was no longer punk. From its very beginning, the fanzine's letters page was
rife with complaints about the "true" definition of punk. Every month,
with each new issue, the complaints continue.
But there's another view: Ralph Spight, who sings and plays
guitar in San Francisco's Hellworms and has been part of the local punk scene
since the early '80s, credits Alternative Tentacles for being both loyal and daring.
"Some of them sold pretty well," Spight says of his AT recording
efforts with the bands Saturn's Flea Collar and Victim's Family. "Some of
them didn't. But on any other label in the world, doing the things I've done,
I'd be dropped."
And AT's openness to experimentation makes it more
"punk" than new bands aping the old look and sound.
"Sometimes I get really excited about the bands going
on around here, and then sometimes I get really bored," Spight says. He sees
a punk scene that threatens to go stagnant and become just another musical
style - which would leave it far, far away from its radical roots. "I'm
pretty jaded about it all," he says.
Although it has released records from local groups such as
Neurosis and Zen Guerrilla, Alternative Tentacles has increasingly focused on
aggressive and noisy bands outside the confines of the Bay Area, and new labels
have stepped in to cover local punk music. The most famous, Berkeley's Lookout,
has functioned for 11 years, supporting bands like Green Day and.Operation Ivy
(members of which would later form Rancid). Molly Neuman, Lookout's general
manager, praises Alternative Tentacles for proving that the do-it- yourself
ethic can work. "[Alternative Tentacles] demonstrated that independent
music can survive without tons of media support and attention, without radio,
without MTV, and can still survive outside of the mainstream music industry's
standards," says Neuman.
Neuman says she hasn't kept up on details of the Alternative
Tentacles/Dead Kennedys case. But when asked about it, she makes the same
comment, three times.
"It's a shame."
Neuman is right in saying that Alternative Tentacles helped
establish the model for how an independent rock and punk label might operate
successfully. To perhaps oversimplify, that model is analogous to a shopping mall:
If you have one or more successful and familiar "anchor" bands,
people buy the smaller acts, too. The label's name and logo become a brand and
a signifier of quality. That's part of what differentiates the independent record
label from a major: Nobody buys a Ricky Martin album because he's on Sony, just
like Miles Davis; but Alternative Tentacles record buyers, knowing the Dead Kennedys'
history, might be more likely to buy a record by, say, the Causey Way.
The Causey Way, one of AT's recent signings, is an upstart,
Devo-esque band from Gainesville, Fla. Says singer Causey, somewhat waggishly,
"We were approached' courted,' as they say - by some of the majors, but no
one understood the integrity of our mission like our brothers and sisters at AT.
I have only wonderful things to say about Jello Biafra."
This "shopping mall" system of independent marketing
has worked for Washington D.C.'s Dischord, home to Fugazi and Minor Threat; Chicago's
Touch and Go, for which famed producer Steve Albini records and performs; Southern
California's SST, which mainly sustains itself on '80s albums by Black Flag and Husker Du; and, of course, Alternative Tentacles,
home to the Dead Kennedys - at least for now.
As the former members of the Dead Kennedys prepare for the
trial that would resolve their dispute (at least in a legal sense), Jello Biafra
continues to oversee new Alternative Tentacles releases, which have recently included
spoken-word albums by leftist cause célebrès such as the late
environmental activist Judi Bari, A People's
History of the United States author Howard Zinn, Noam Chomsky, and alleged
cop murderer Mumia Abu-Jamal, as well as musical offerings from bands at
various positions on the punk spectrum.
Though he rarely publicly performs music - partially because
of knee damage he sustained in the 1994 beating - Biafra occasionally sings or
writes for musical projects, including Lard, a collaboration with members of
the Chicago industrial band Ministry. The bulk of his post-Dead Kennedys
recordings, however, are his own politically themed spoken-word albums, and he
continues to speak around the country, mainly on college campuses.
Ray and Flouride have been playing together locally in Jumbo
Shrimp, a surf rock trio. Peligro now lives in Los Angeles, where he continues to
play music. Ray also has his hand in a number of recording projects, an says
he's started getting involved in the rave scene, which attracts him because
"you don't have to deal with lead singers."
Ray catches himself and laughs. '''That's a joke. Kind
of." .
Alternative Tentacles Records' 20th Anniversary Party,
featuring the Causey Way, Wesley Willis, Hellworms, Creeps on Candy, Crucifucks,
DJ Whats His Fuck, and host Jello Biafra, happens Saturday, June 26, at 9 p.m.
at the Great American Music Hall, 859 O'Farrell (at Polk), S.F. Tickets are
$10: call 885-0750.
