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Fresh from a tour of Norway, two of The Dead Kennedys arrived in a San Francisco appeal court last week to confront former lead singer Jello Biafra in a long-running dispute over royalties and musical rights. It wasn’t a pleasant get-together. Although the 30-minute appellate proceedings were left to each side’s lawyers, the boys in the San Francisco punk rock band freely sniped at one another afterward in the courthouse hallways. Biafra, whose real name is Eric Boucher, accused his former bandmates of swindling him out of money and using his name and face to promote their ongoing tours. Guitarist East Bay Ray (Ray Pepperell) and bassist Klaus Flouride (Geoffrey Lyall), meanwhile, complained that Biafra defrauded them — and drummer D.H. Peligro (Darren Henley) — out of their financial due for their extensive contributions to the band. “When someone steals from you, they steal from you,” Ray said. “We trusted him, and he betrayed us.” Friday’s hearing in the First District Court of Appeal focused on the proper ownership of the individual band members’ songs and the validity of a 1991 at-will, oral partnership agreement aimed at keeping the group’s music in the public eye. The profits at stake could be enormous considering that The Dead Kennedys, minus Biafra, still perform constantly around the globe and, according to court papers, the band’s original albums continue to sell at the rate of more than 100,000 yearly. The one-time pals have been at each other’s throats for five years, since Ray, Flouride and Peligro sued Biafra, with whom they had parted ways in 1986. They accused him of underpaying royalties and of failing to promote the band’s work as part of a partnership called Decay Music. Three years ago, a San Francisco jury found that Biafra had done just what he was accused of, and awarded the three plaintiffs about $200,000 in compensatory and punitive damages. But seven months later, Superior Court Judge Anne Bouliane, finding that “antagonistic feelings” had developed to the point of making the partnership unworkable, ordered the band’s assets — master recordings, copyright interests and other licensing agreements — sold and distributed to the band members based on percentages laid out in the 1991 agreement. Neither side liked that result in its entirety and showed up at the First District Friday to make their cases. David Given, the lawyer representing Ray, Flouride and Peligro, got off to a shaky start, however, when he arrived late for the argument. The justices took a five- minute break, then came back and said that if Given, a partner at Phillips & Erlewine, didn’t arrive by the time his opponent finished that the case would be submitted without Given’s oral input. Given — who afterward said a clerk had given him bad advice about when to return — got back in time, but was forced by Justice Timothy Reardon to apologize before giving argument. Biafra’s lawyer, Carroll, Burdick & McDonough partner Paul Keating, kicked off the arguments by saying the trial court’s forced-sale remedy isn’t proper because an exclusive license cannot be transferred to a third party over the objection of one of the principals in a partnership. He also argued that the 1991 partnership agreement was nothing more than a “revenue stream” and was never meant for individual members of the band to relinquish rights to the songs they wrote themselves. The creators of each song were listed on each album, he said, and Biafra never intended to relinquish control over his life’s creative work. In addition, Keating said, the 1991 agreement doesn’t meet federal case law that requires the original creations to be contemporaneous to the agreement. “The parties completed their entire creative career as a band, stopped performing in 1986,” he wrote in court papers, “and five years later, committed to paper the unremarkable fact that their partnership had been administering the licensing and financial aspects of their work.” When his turn came, Given said there was “abundant extrinsic evidence” that The Dead Kennedys intended to transfer their individual interests into the partnership. The purpose, he said, was to “exploit” the group’s body of work “as a group on a majority vote.” “It is our view,” Given added, “that great deference should be given to the jury and the judge on this subject.” On the other hand, he argued, the trial court erred by ordering the dissolution of the band’s partnership under Decay Music. He said California case law says anyone who has committed fraud — as jurors found Biafra had done — has no standing. “The matter,” Given said, “should be remanded to the trial court.” The only justice asking many questions during Dead Kennedys v. Biafra, A094272, was Maria Rivera, who seemed to have problems with Keating’s arguments about the nature of the 1991 agreement. Aside from admonishing Given, Reardon had nothing to say, nor did Justice Patricia Sepulveda. Both sides were cautiously optimistic about victory afterward. But even a resolution in this case won’t end the conflict: A related issue is being heard in Oakland federal court, and there are still motions pending in San Francisco Superior Court. And there is no love lost between Biafra and his former bandmates. Biafra — who’s working on a CD with The Melvins and is doing “spoken word shows” at which he denounces the Bush administration — said he signed the 1991 agreement only because Ray had told him it would be a way to distribute royalties in case someone died, and he said he couldn’t imagine ever teaming up again. “I couldn’t possibly team up with people I can’t trust,” he said. “Their real goal is to swipe the whole thing while they make money off of me.” Ray and Flouride, now with the Manifesto label, are continuing to tour with Peligro and new lead singer Jeff Singer, and berate Biafra for relying on the court system punk rockers loathe. “It’s astonishing for Klaus, D.H. [Peligro] and I to be subject to this litigation when it’s already been decided by a jury,” Ray said. “Stuff like this puts a crimp in what you can do.”

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