Zappa takes aim for the New Year

By M. B. Kleber

Los Angeles Free Press, December 30, 1977

When Frank Zappa takes the stage on New Year's Eve at UCLA's Pauley Pavilion, he will probably have more than music on his mind. At some time during the evening, perhaps right in the middle of "Titties and Beer," Frank will take off his guitar, grab a hand mike, and strut in his inimitable fashion to the very front of the platform. In his patented "burning bush" voice, he may tell you the story of how Howard King blatantly lied to a federal judge. Pacing back and forth he may explain about Warner Brothers records and the "brown lipstick syndrome." It is even possible that he will unveil the facts surrounding what he alleges to be the underhanded dealings of Herb and Martin Cohen.

Most of this information will mean very little to you unless you already understand what has been happening to Frank Zappa over the past 15 months. It is a complicated story which involves multi-million dollar law suits, betrayal of trust, intercorporate threats, conflict of interest, outright misinterpretation of the facts, and some of the music you will be hearing at the Zappa-Pauley extravaganza.

If you are a Zappa fan, you may be wondering why there has been no new album from Frank since Zoot Allures or perhaps why you have been hearing no new material over the radio. It's not because the prolific Zappa has been mired all those long months in a non-productive creative funk. Quite the contrary. He has been recording material at an amazing pace, but until a protracted court battle is concluded – a legal operation which may last as long as five years – the only place you can hear the new Zappa compositions will be "in concert."

What has been happening to one of rock's most original and controversial figures? Zappa wants you to know his side of this sordid tale, a classic artist versus bureaucracy confrontation. For years he has been misrepresented by the press because it is difficult to determine when he is being brutally sarcastic. He is often so candid in his commentary that the media cannot believe he is serious. Either that, or they are convinced that he is bizarrely insane.

The facts are these: Frank Zappa is highly intelligent if iconoclastic musician. He is a shrewd businessman and a Machiavellian executive. He is fiercely independent, staunchly individualistic, yet thoroughly pragmatic when it comes to his work. He would like to be an idealist, but he is too smart. He knows from rather bitter experience that the world is not run by idealists. Not that he wants to control the world; he just wants to have complete autonomy over his small part of it.

Once you realize that Frank Zappa is a man whose eyes are wide open, he becomes a completely comprehensible character, and his strugglers in the recording industry seem understandably motivated. Although it seems that he has been at odds with the system throughout his career, this particular chapter of his tribulations begins in October, 1976.

During that month, Warner Brothers became the "assignee" of Frank Zappa's contract. Previous to this time, he and his manager/partner Herb Cohen had been associated with Warners through a distribution deal. Warners distributed Zappa and Cohen's product which was on their custom DiscReet label. According to Frank, at some time prior to October, Herb Cohen took one of Zappa's royalty checks from Warners and cashed it, keeping the money for himself. Zappa maintained that this action constituted breach of contract, filing a lawsuit against Herb and his brother Martin, a California attorney who represented DiscReet. The partnership was terminated, and thus the distribution deal was suddenly null and void.

With DiscReet in breach, Warner Brothers paid Zappa the amount of the royalties Cohen had allegedly stolen, taking over Zappa's contract. Under the terms of the agreement, Zappa owed Warners four albums. Upon receipt of each album, Warners was to pay Frank $60,000 as an advance against expected royalties. They then had six weeks to release the album in the United States and six months to release in the common market countries.

During his eight-year association with Warners, Zappa had never really gotten along. "I've never been very much of a favorite over there at Warner Brothers because I don't like to pose against the wooden fence with a levi jacket on. I'm not into wandering around the corridors there, talking pseudo-hip with the guys in the leisure suits, the well-groomed beards, and those funny little utensils around their necks. They're not my favorite kind of people to hang out with. I think they're a bunch of hypocrites.

"However, there are other artists that are signed to Warner Brothers who believe that that's the correct way of life over there. They kiss the appropriate appendage of the people in the office and walk away with the brown lipstick on under any circumstances – let alone the smell."

With the release of Zoot Allures Zappa was thoroughly incensed by Warner's failure to aggressively promote the album. "They released it and tried to bury the thing. We did a three-month tour last year, and during the whole tour we saw a grand total of five Warner Brothers field representatives. And during that tour, which is the time when record companies usually place their heaviest advertising for the product in conjunction with your concerts, they spent a grand total of $5,000, which was less than the amount of money spent to advertise our first album, Freak Out."

Thoroughly disgusted with Warner Brothers, Zappa decided to end his association with them as soon as possible. In March, 1977, he delivered – all at one time – the four albums required by his contract. He had paid in excess of $400,000 out of his own pocket to produce these tapes.

Frank continues: "I said, 'I want to be rid of you guys because you didn't do shit on Zoot Allures. Let's just say goodbye.' " For some reason, however, Warners did not honor their end of the agreement. They never paid Zappa the $240,000, and they failed to release the albums in the time specified. They did nothing, apparently figuring that Zappa would do likewise.

"But they were picking on the wrong guy," says Zappa determinedly. "I filed a law suit against them for breach of contract for five million dollars." Since Zappa and his lawyer were of the opinion that the contract had been abrogated, he decided to take his material and negotiate with another record company.

It was then that he ran head-on into the legal monopoly which controls the record industry's dealings. Discussions with EMI (Capitol in the U.S.) were almost concluded when they backed out. It seems that pressure was applied by Warners on Capitol, who in turn passed it on to their international parent organization. Both Capitol and Warners are represented by the same law firm – Gang, Tyre, and Brown. Capitol also passes the product for Warner Brothers Records, so it would be extremely disadvantageous for these two to be on opposite ends of a lengthy suit. The loser: Frank Zappa.

Undaunted, Zappa began negotiations with Phonogram for international distribution of a new label, Zappa Records. Once again the contract was about to be signed. Artwork for the cover of a boxed four-record set entitled Lather has already been printed by Phonogram. This time, Frank alleges, Warners attempted to release one of the four albums Frank had delivered back in March, entitled Zappa In New York. This album included material to be released in the Lather package, since Zappa felt Warners no longer had any rights to any of his new music. Threatened with legal embroilment, Phonogram broke negotiations.

On the release of Zappa In New York: "Now this is a very bold move. Here's why it's bold. First of all, they're going to release it on DiscReet Records, which automatically puts them in collusion with the Cohen brothers... Here we have Warner Brothers trying to fuck up my contract with two other companies and not even having the balls to do it through their own label."

The situation becomes even more complicated when you consider Frank's claim that Warners has no publishing licenses to the material on Zappa In New York. Warners in turn claims that Martin Cohen issued them a license on May 31, 1977. This was the last day of Zappa's contract with Cohen, and long after he had been notified that he was no longer authorized to negotiate Zappa's publishing.

The result of these claims and counterclaims is that Zappa took Warner Brothers to federal court in Los Angeles on a charge of copyright infringement in an attempt to get a permanent injunction against the release of Zappa In New York. This is where Howard King comes in.

King is a junior partner at Gang, Tyre, and Brown. He was assigned to represent Warners in the federal proceedings precipitated by Zappa. Because injunction hearings require no oath to be taken before the briefs and arguments are submitted, and because no cross-examination is allowed, it was Zappa's word against Warners'. According to Frank, the injunction was not granted because King told the judge that Warners had paid nearly $400,000 "into the court." This is similar to putting the money in escrow to be dispersed once a decision has been rendered. Zappa says that none of this money has been paid into the court, branding Howard King a liar. Frank puts it a bit more succinctly: "I saw Howard King stand up there as of here were Pat Boone and lie his fucking ass off to this judge."

The judge did grant a temporary injunction, pending the hearing of Zappa's appeal of the decision. Three weeks ago the arguments were heard in the Federal Circuit Court of Appeals, and Zappa lost. The decision was upheld, leaving Warner Brothers legally free to release Zappa In New York. You can bet your old Mothers albums, however, that Zappa is far from finished.

If they succeed in releasing, than I will just have to increase the amount of the suit for damage incurred for the copyright infringement. It just goes on and on. Meanwhile I have no record company. I have no distribution. And I have been forced to play a three-month tour without a record to promote, which has cost me immense amounts of income. It keeps a record from selling because there is no record out there, and it effects the concert grosses because there's no record on the radio to help sell concert tickets. Warners has not only not paid me for the four albums, but they have held up my royalties on product already in distribution. So it's a very involved thing.

"But am I going to let a major corporation with political connections step on me? Should I just sit there and say, 'Oh well, I've been teamed by rock?' I'm not going for that. I'm going to fight it."

So now you will understand what Frank Zappa is talking about when he unleashes some spiked verbs and nouns on you sometime during that New Year's Eve performance. And if perchance he happens to let you in on his New Year's Resolution, you'll be right with him when he says: "I'm going to get Warner Brothers, and then I'm going to get the Cohen Brothers... and then I'm going to get a record out."