Punk You

Dead Kennedys, Alternative Tentacles, and the lawsuit that proves there isn't always room for Jello

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 Tentacles thus earned reputations as the leading provocateurs of punk rock. To this day, the Dead Kennedys account for more than half of Alternative Tentacles' record sales. 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.

East Bay Ray and Jello Biafra, long before lawsuits and royalty payments came between them
East Bay Ray and Jello Biafra, long before lawsuits and royalty payments came between them
The Dead Kennedys enjoying a "Holiday in Cambodia": Until the band broke up in 1985, it was one of punk's leading provocateurs.
The Dead Kennedys enjoying a "Holiday in Cambodia": Until the band broke up in 1985, it was one of punk's leading provocateurs.

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 to break up the band that year, after it released a final album, Bedtime for Democracy.

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 cover 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 part of a mid-'80s promotional campaign for a police wage hike. In April of 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 celebrated its 20th anniversary last 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 the celebration might have been 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 no one who was once a Dead Kennedy unwounded.

On September 30 of last year, former Dead Kennedys members East Bay Ray, Klaus Fluoride, and D.H. Peligro (born Ray Pepperell, Geoffrey Lyall, and Darren Henley, respectively) sat down and voted to terminate their relationship with Alternative Tentacles. 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 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 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, Fluoride, 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 Kennedys, 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 high as that of any other band on the label. (Werckman contends that no such royalty arrangement ever existed.)

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