By Jeremy Hallock
By James Khubiar
By Observer Staff
By Kelly Dearmore
By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
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, Fluoride, 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' albums. The suit, filed on October 29, 1998, seeks the right to control the Dead Kennedys catalog, at 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 façade 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 Fluoride, 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."