Dead Kennedys Music Owned By Partnership, Judge Says

Tentative ruling says Decay Music controls group's songs.

SAN FRANCISCO — A Superior Court judge issued a tentative ruling Wednesday (May 31) that music recorded by the Dead Kennedys is owned by Decay Music, the punk band's formal business partnership.

"If this ruling stands, they obviously succeeded in tricking me out of my songs," ex–Dead Kennedys singer Jello Biafra said outside the courtroom. "That's not what I was told the '91 agreement was when I signed it. ... The agreement, as proposed by [guitarist East Bay] Ray way back when, was whoever wrote the song, it was their song, and I ran by every single credit and publishing split with him."

Biafra, in a plaid dress shirt and black jeans, looked on soberly as Judge Anne Bouliane told the court that she had tentatively ruled in favor of his ex-bandmates on ownership and partnership issues that a jury had ruled on only as an advisory.

The jury found May 19 that the group's outspoken former singer had failed as the owner of Alternative Tentacles Records to adequately promote the band's catalog, which includes such songs as "California Uber Alles" (RealAudio excerpt). They also found that he failed to pay back royalties owed the band, and that he had committed fraud by disguising back royalty payments as a bargaining tool in label-band negotiations.

The jury awarded nearly $200,000 in damages to the band's partnership — Biafra, Ray, bassist Klaus Flouride and drummer D.H. Peligro.

"I've seen Biafra quotes where he talks about this as something that's happened to him," said Ray, standing outside the courtroom in a black sportjacket and tinted glasses. "This is something that he brought upon himself by his conduct. ... We were the victims of [Biafra's] record label, and he didn't make it right. ... To quote Malcolm X, it's a case of the chickens coming home to roost."

Biafra was awarded $5,000 in a countersuit against Ray, who was found guilty of fraud and mismanagement of Decay Music.

Biding by the jury's advisory decision, the judge found that the bandmembers, in signing a disputed 1991 partnership agreement, had transferred the copyrights to the Dead Kennedys' musical compositions and performances to the partnership — copyrights that had previously been treated as the property of individual songwriters.

"We created [the songs] together," Ray said. "An idea is not copyrightable. A creation is copyrightable. The Dead Kennedys' songs were never created until the band rehearsed them, played them and recorded them onto tape. That's when the copyright was started.

"That's why it's collaborative ownership," Ray said. "Since Biafra does not play an instrument, the copyright didn't start happening until the band started playing 'em and fixing 'em in a final form."

The judge also decided that a vote by Ray, Flouride and Peligro — in Biafra's absence — to terminate the band's licensing contract with Alternative Tentacles, was valid by the three-fourths majority vote, and did not require a unanimous vote, as Biafra's lawyers had argued. That decision could change if Biafra's attorneys can prove that the license was a material part of the partnership agreement, in which case it can only be decided by unanimous vote.

Biafra, who has also moved to dissolve the partnership, plans to appeal the court's expected final decision at the federal level.

"I don't think the jury basically understood the issues — and they were very complex," Biafra attorney Paul Keating said. "I don't blame them, but these are issues that should have been decided in a federal court, not a state court. It's clear the judge didn't understand the difference between ownership and license."

Language in the 1991 agreement continues to be at the core of the copyright dispute — a battle that will determine the future of how Dead Kennedys music is distributed to fans. The judge will continue research of legal precedent before handing down a final ruling, expected June 9.