Punks at War

Dead Kennedys, Alternative Tentacles, and the lawsuit 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, ne 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 Über 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 cliched 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 Kennedys 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 proclaimed 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 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 la-bel 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 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 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 no one 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 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 Flouride 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 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 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' albums. The suit, filed on Oct. 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 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 popular music, scenes come and go. And if punk in San Francisco has never died off, it also has never again approached the fertile creativity that it enjoyed in the late '70s and early '80s. 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 HYsker DY; 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 celebres 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, and 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 What's 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.

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