"The center never holds," says MC5 guitarist Wayne Kramer in a scene from MC5: A True Testimonial, the much-anticipated documentary about the legendary Detroit band. "And that moment where everything was totally together is only for a minute. The one thing you can count on is everything is gonna change."
He's referring to a turning point the group hit in 1970, after they'd been dropped from Elektra Records and their manager had been jailed for possession of a couple joints, but he could be talking about almost any period in the group's volatile history--including this one.
Chicagoans David Thomas and Laurel Legler, who work together as Future/Now Films, spent almost seven years making MC5: A True Testimonial, which is action packed and fascinating in part because the MC5 was so explosive in every sense of the word. But two weeks ago a weeklong run at the Gene Siskel Film Center was canceled, as were a couple dozen other engagements around the country, and a May 4 DVD release of the movie by the BMG subsidiary Private Music was postponed indefinitely. "With the attempted murder of the film," says Legler, "between the filmmakers, our investors, and our various business partners, we're looking at a loss just under a million dollars."
The source of the holdup is a bitter dispute between the filmmakers and their once-cooperative subjects--in particular Kramer, who claims the filmmakers reneged on a verbal agreement to let him control how the band's music was used in the movie and release an official companion CD on his indie label, MuscleTone. Frustrated by failed attempts to get that in writing, he's refused to sign a release permitting the filmmakers to use his likeness, and in November he asked Warner/Chappell Music, the company that administers the publishing rights to the MC5's recordings, to deny Future/Now one of the licenses they need to use the music in the movie. The filmmakers have responded by filing a motion to reopen Kramer's 1999 Chapter Seven bankruptcy in order to investigate his control of those rights.
The effectiveness of this maneuver won't be clear for months, but in the meantime it's really pissed Kramer off. At the beginning of March, he demanded that Future/Now stop using his image and pay him any revenue they've generated with it so far. In July he'll release an MC5 DVD of his own, Sonic Revolution, and he's getting ready to launch a supporting tour with the band's old rhythm section and various guest singers and guitarists. (MC5 singer Rob Tyner and guitarist Fred "Sonic" Smith both died in the early 90s.)
The MC5 were born to squabble: Tyner and Smith christened the band by fistfight in 1964 and had another one to seal its collapse in 1972. Their manager, John Sinclair, made them mascots for his radical organization the White Panther Party, whose nebulous political goals included "a total assault on culture by any means necessary, including rock 'n' roll, dope, and fucking in the streets" and also "the end of money." Nonetheless, within months of their most famous performance--a prelude to the riots during the 1968 Democratic National Convention in Chicago--the band had signed to Elektra for a $20,000 advance.
Kick Out the Jams, recorded live that fall at Detroit's Grande Ballroom, charted in the top 30 nationally, but the local Hudson's department store refused to carry it because Tyner referred affectionately to the fans as "motherfuckers." In protest the band plastered the store with posters that said "Fuck Hudson's," using Elektra's logo and expensing the label for the retaliation effort. Elektra paid the bill--then edited the offensive epithet and dropped the band.
Neither of the MC5's subsequent albums for Atlantic, Back in the U.S.A. and High Time (the former produced by future Bruce Springsteen booster Jon Landau) had the same impact the debut did. In early '72 bassist Michael Davis was booted for abusing heroin, then Tyner decided he didn't want to tour anymore; when he bailed, so did drummer Dennis Thompson, leaving Kramer and Smith to recruit a pair of new members to fulfill their obligations in Europe. The MC5 played their final show that New Year's Eve at the Grande for a lousy $500.
Even since the breakup, tensions have continued to rise and fall. In 1998, Tyner's widow, Rebecca Derminer, and Thompson informed Elektra that Kramer had been wrongly receiving the whole band's royalties from Kick Out the Jams. Elektra has since placed MC5 royalties in an escrow account, where they're still accruing, awaiting Derminer's sign-off on an agreement as to how they should be distributed.
Yet it seemed like MC5: A True Testimonial might allow for some healing. Kramer, Davis, Thompson, and relatives of Tyner and Smith (with the notable exception of the guitarist's widow, punk icon Patti Smith) were active participants in the documentary, giving interviews, providing contacts, and digging up band artifacts. Future/Now uncovered unseen performance footage and talked to just about everyone ever associated with the band. Thomas (who, in the interest of disclosure, delivers papers for the Reader) edited for maximum impact, meticulously matching studio recordings to silent performance footage in a way that brings extra spark and power to both. The movie makes a persuasive argument that the MC5 were the most exciting live band in rock history.
Early last month, Big Hassle, a New York publicity company, sent out about 300 advance copies of the DVD to the media--which no doubt means bootlegs will start circulating even if the DVD does end up DOA--but they were almost immediately followed by an e-mail saying the release was delayed. Then on March 31, Susan Whitall of the Detroit News reported that Warner/Chappell had blocked the release and a string of screenings.
Whitall fingered Kramer, reporting that Warner/Chappell had acted on his behalf, and explained that since all of the MC5's songwriting was democratically credited to the whole group, any of the members (or their heirs) could refuse to license the material. That's only partly right, says Kramer: As was common in the 60s, Elektra and then Atlantic assigned the publishing rights to their own affiliates. Both those companies have since been absorbed by Warner/Chappell, which can license the work however it sees fit. But nowadays it's more common for songwriters to have some say in who administers their publishing, and as Kramer points out, "If the word went out that Warner/Chappell disregarded one of their writers' wishes, how many writers do you think would want them to publish their songs?"
In December, although they had yet to get final clearance from Warner/Chappell to synchronize the MC5's music with their movie, the filmmakers signed a distribution agreement with--and took an advance from--Private Music. They'd had a one-year license that allowed them to show a finished version of the documentary on the festival circuit, but Kramer's wife and manager, Margaret Saadi Kramer, had informed them in writing in August that he wouldn't give Warner/Chappell the green light until the filmmakers agreed to his terms. Thomas and Legler took a calculated gamble, and they lost.
"They were supposed to deliver us a product that we could release," says a BMG employee involved in the distribution deal, who didn't want to be named. "In a typical film distribution agreement [the filmmakers] are supposed to obtain all of the licenses and at the last minute they let us know that there was a problem with Warner/Chappell. They sold BMG a film that they did not have licenses on. They signed a document that put them in trouble."
Kramer, now a fit, balding 55-year-old, is the central figure and more or less the narrator of MC5: A True Testimonial. He's the only surviving band member who was there from start to finish, and he's the most articulate of the bunch, whether pointing out where the cops were stationed in Chicago's Lincoln Park or leading a tour of Lincoln Park, Michigan (the Detroit suburb where the band members grew up), from behind the wheel of a gold GTO. He's been the most active in helping the filmmakers, too: in March 1999 he spoke on a panel with Thomas, rock critic Dave Marsh, John Sinclair, and others at South by Southwest, where a trailer from the movie was screened. He and Margaret helped Thomas and Legler arrange interviews with Sinclair, Landau, and others and accompanied them to their first meeting with representatives of Warner/Chappell in the summer of 1997.
Kramer says he began to worry in 2000, after he started trying to formalize the promise he claims Thomas and Legler made shortly after they approached him about the film in 1996. The filmmakers, he contends, had agreed that he'd be the music producer and would be allowed to assemble and license an official companion CD. All the MC5's recordings were still readily available, and Kramer himself was producing The Big Bang!, an MC5 best-of collection released by Rhino that year. So he lined up other bands--including Cheap Trick and Swedish hard rockers the Hellacopters--to record MC5 covers and pitched the idea to distributors, several of whom he says displayed interest. The Kramers "worked for a good two years on their movie in good faith," Wayne says. "I did everything I could to help make a great film. I really believed in what they were trying to do. Any money I would've made wouldn't have come from them. I was willing to generate my own income stream from the sound track album." But Future/Now, he says, wouldn't discuss details.
In 2001 Kramer saw a 20-minute segment from the work in progress. "It was clear that they had eliminated me from the music production work," he recalls in an open letter posted on April 1, 2004, at www.dkt-mc5.com. "I was extremely disappointed. Not by what they had done with the music, but that I had been...used. We wanted answers. The more we reached out, the more they avoided us." (Thompson and Davis have both posted their own open letters on the same site in support of their bandmate.)
Thomas says there was no point negotiating the production of a sound track album until they actually had distribution. "What we had always said was that if there was a sound track, we thought it would be great if [Kramer] produced it," he says. "We not only discussed it that way, but we said that we would recommend him as the producer once the film was picked up for distribution." But, he says, "I don't exactly know what the term music producer means." By journalistic standards, it would be unusual for Kramer, a subject, to be intimately involved in the assembly of the documentary.
Kramer and Future/Now also butted heads over his publicity release--a standard document that grants a filmmaker the right to use a subject's likeness. Thomas says he's been trying to get Kramer to sign one since '96. "When it got close to the time that we would be releasing the film, we became a little more insistent about getting it because it would affect the cost of our errors and omissions insurance," he says. (Errors and omissions insurance covers potential litigation due to oversight.)
Kramer calls Future/Now's release "excessive" in his open letter, and its language is rather broad: it claims "the absolute and irrevocable right" to use Kramer's image "for any purpose whatsoever, including but not limited to" the movie. "They want to own everything about me forever," Kramer says. "They could put out MC5/Wayne Kramer lunch boxes." But according to Gordon Quinn of the Chicago documentary powerhouse Kartemquin Films, "unfortunately that [sort of language] is not out of the ordinary today." The terms, he says, are dictated by the companies the product will eventually be sold or licensed to, and the speedy evolution of technology introduces situations that might not be covered in a narrower release.
Kramer also says he's been cut out of the potential back end on MC5: A True Testimonial because he wouldn't sign the release. In 2000, the filmmakers registered a limited liability company, or LLC, called Zenta. Once the project's investors are paid off and production costs have been recouped, profits are to be split among members of the company, who include Derminer, Thompson, and Davis. Kramer is not a member, Future/Now says, because he never signed the LLC agreement despite multiple opportunities and extended deadlines.
Margaret Saadi Kramer says her husband did sign it, in June 2002--but not the copy of the publicity release that came with it. Thomas "categorically" denies that Kramer's membership was contingent on that release, but a May 2002 letter from Future/Now's lawyer to Kramer's makes the relationship explicit: "Because Mr. Kramer was a member of the MC5 and appears in the picture, the Manager wishes to make an exception to the deadline and, provided that Mr. Kramer promptly executes the Operating Agreement and attached Release and Waiver, admit Wayne Kramer as a...member of Zenta, LLC, at this late date."
According to Future/Now, the first time Kramer made noise about his concerns was shortly after a private screening of the first director's cut at the Siskel Film Center in April 2002. All of the living band members, as well as Smith's first wife, Sigrid Dobat, and Rebecca Derminer, had attended. Legler says Kramer demanded that the filmmakers sign a formal agreement and suggested that they turn future communication over to the lawyers.
In his open letter Kramer writes, "Dave told us that they would not be meeting with us to discuss our outstanding business. We considered withdrawing our endorsement. We discussed it with Dennis Thompson and Michael Davis. We called the investors. We reached out to Dave and Laurel and their attorneys--personally and through our attorneys--by telephone, fax, email and by letter and they ignored our attempts to resolve matters."
Yet that August, Kramer and the other band members gave Warner/Chappell their blessing to issue the free license that would let Future/Now use the music for a year's worth of festival screenings. A year later Kramer attended the Los Angeles premiere of MC5: A True Testimonial and performed that night at the Knitting Factory in conjunction with the screening.
Legler says that in the interim Future/Now's attorneys sent Kramer's attorney numerous agreements regarding his role in the project, none of which the guitarist accepted. She provided copies of two more or less identical letters, both of which include the publicity release and promise Kramer that "in the event an audio-only CD is produced in connection . . . with the Film, Zenta will use reasonable good-faith efforts to encourage the entity producing such CD to engage you as a producer, co-producer, or consultant . . . on terms you and the Producer may negotiate, provided however, that this agreement is subject to the approval of the members of Zenta, LLC."
Kramer responded with his own version of the agreement, which is more black and white. It would give Future/Now permission to use Kramer's image "in connection with the promotion, distribution, and exhibition of the Film" and MuscleTone the "exclusive right to produce, manufacture, promote, and distribute . . . audio products . . . as the Film's soundtrack," with final say over content, packaging, and promotion. Kramer would also "personally instruct Warner/Chappell to provide a gratis license for the use of his compositions." But the peace process had ground to a halt by the end of August 2003, when Future/Now rejected this.
"We didn't want to stand in their way," says Kramer. "We wanted them to sell their movie. We hoped that they would do the right thing, that they would talk to us."
Legler explains why his terms were problematic. "In the first line it says this agreement is between MuscleTone Records and Future/Now Films," she says. "We weren't entering into an agreement with MuscleTone Records--we were dealing with Wayne Kramer. At that time we still had no distribution deal and we had no authority to make a deal with MuscleTone. It's this chicken-and-egg thing: they're asking me to grant them the rights to a sound track record when as a filmmaker I don't have the rights to a sound track record. In our agreement with BMG it specifically says that the filmmakers have no rights to the music in regard to a sound track. We don't own MC5 music, we'd have to license it. We had nothing to do with their tribute record. They'd tell me who they were talking to and that was great, but it had nothing to do with us."
Before a scheduled premiere in Detroit in October, Future/Now got a call from Warner/Chappell licensing rep Pat Woods reminding them that their festival license had expired. Thomas says they worked out a compromise so the screening could proceed, but Woods also informed them that "there was a problem and that we had to work it out with Wayne Kramer. Their line at the time was that we don't know what the problem is, but you need to work it out."
Nothing got worked out, but Future/Now's theatrical distributor, Avatar, continued to book screenings until last month, when Warner/Chappell sent a cease and desist letter. (Warner/Chappell representatives did not return numerous phone calls requesting comment on this story.) In mid-December the filmmakers signed the DVD distribution deal, which they say provided the capital they needed to pay for music licensing as well as some archival footage and photographs. In early February, Legler says, "we submitted our request and the paperwork [to Warner/Chappell] for the commercial release." A couple weeks later, she says, she got the bad news by fax. The next day Woods called her to reiterate that Warner/Chappell would not be granting the license and that she "ought to move on."
On February 27 Future/Now and Rebecca Derminer filed a motion in Los Angeles federal bankruptcy court to reopen Kramer's Chapter Seven. According to Thomas they hoped to "determine if in fact [Kramer] had any publishing rights for the music of the MC5." Neither he nor Legler made clear what they planned to do with the information.
In his original filing, Kramer did not list, or "schedule," future royalties from record sales or publishing as assets. That's the technical grounds for Future/Now's motion, which adds that potential income from the documentary project should also have been included.
In 1996, it claims, Future/Now "entered into several agreements with [Kramer that] gave FN Films personality rights, and entitled and authorized FN Films to use all music and recordings in which the Debtor held an interest." There are no written agreements attached, but the motion adds that "Under the agreements FN Films paid all of [Kramer's] expenses in connection with various shoots and interviews, and agreed to give [Kramer] . . . membership interests in [Zenta]."
It goes on to argue that the case should be reopened so that a trustee can be appointed to determine the value of the assets and whether Kramer should be forced to liquidate them "for the benefit of creditors," including Derminer.
Derminer, though, says her "primary motivation" in signing on to the motion was to help the filmmakers. Last year, she says, she told Kramer she would "do anything to support Dave and Laurel and to support the film. . . . He told me he would do nothing to stop this film." When it appeared that was not to be the case, Derminer says, she told Kramer the motion might be filed. "He blew it off," she says. "It was a culmination of a long, long history of dirty tricks and different kinds of manipulation. It called for some action."
Music publishing is a notoriously thickety topic, and in an effort to understand how this might get the filmmakers what they need--the license from Warner/Chappell--I consulted a prominent music lawyer. "There's the ownership rights and the administration rights, and they are separate," he explained. "Ownership is just what it is--it's ownership. Administration is the right to the business for those songs, whether it's issuing licenses or making sure the copyrights are filed or whatever. With most songs ownership is split. The band owns a part of the song and the publisher owns a part of the song. Most of the time it's split 50/50, although that's not necessarily the way the money is split. In most deals the money is split in a way that's more favorable to the writer. What is almost never split is the administration rights. If you want to do a deal with Warner/Chappell or EMI or one of those companies, you're going to have to give them 100 percent of the administration rights. It means you're making them the exclusive business person that anyone who wants to do business with that song has to go to."
Kramer has declared in court documents that he did not own the copyrights in question when he filed his bankruptcy, but that he does receive income from them. He can, my lawyer source explains, legally assign his right to receive those royalties to another party. If ordered to liquidate, he might be forced to do just that. But it's not clear whether Warner/Chappell would extend the same privilege to the assignee that it has to Kramer, the songwriter, when it comes to honoring input about licensing.
Kramer's opposition response claims the omission of his future royalties was an honest mistake and requests that the file be reopened so he can amend it. But the assets in question will be "of de minimis in value," it claims, and if that's true, he probably wouldn't have to part with them. His response also asks that the court sanction Future/Now and Derminer for "improper purpose, such as to harass, delay or increase litigation costs."
In an attached declaration, Kramer denies that he's entitled to any income from MC5: A True Testimonial. "Prior to my bankruptcy, I had spoken with Future/Now Films and we had discussed, contingent upon my being music producer on their film, my assisting in making their film. Future/Now Films and their attorneys have asserted for many years now that there is no agreement. I have since been denied membership in Zenta LLC because I have refused to give my story away for no compensation whatsoever. There is no income stream for me related to their film."
In unusually fiery rhetoric for a court document, Kramer's response suggests that dragging him into court will be the straw that breaks the camel's back. "The Movants threatened the instant action in an attempt to scare, harass, and intimidate Mr. Kramer," it says, "but since he has nothing to hide, the Movants have failed in their efforts, and Mr. Kramer will not support the Film Project."
After a hearing on April 6 in Los Angeles, where Kramer lives, the judge ordered that the Chapter Seven case be reopened "for the sole purpose of permitting" a trustee "to review and determine the necessity and extent of any investigation regarding potential assets in this estate. If no action is taken by the trustee by August 6, 2004, the Clerk shall re-close the case without further notice or order of the court.'"
Kramer's attorney in the case, Jeffrey Shinbrot, spun this as a victory, writing: "Wayne's position was and is that to the extent he needed to more particularly describe his royalty stream (which was disclosed in his statement of income back in his 1999 schedules), he wanted the Chapter 7 case re-opened to make that technical amendment. However, Wayne did not want to allow Future [and] Derminer . . . to use the bankruptcy court as a bad faith means to pressure Wayne into cooperating with the distribution of the film, which is the clear intent of the Motion by Future and Derminer. The Honorable Erithe Smith, a United States Bankruptcy Judge in Los Angeles, California, agreed with Wayne."
Thomas disputes this in an e-mail: "The judge had not singled out either participant for her comment, but it was clearly meant for Kramer who brought up all the other crap in his response. . . . Our motion was a straight-forward bankruptcy motion. But that's the game they always play--fast and loose with the facts. Their response had asked for a 90-day limit and the judge made it 120, a clear signal from the bench--for those astute enough to see it."
In early March, days after the motion was filed, Thomas says, "a third party" told them Kramer wanted to talk. But a query from Future/Now's attorney was met with an aggressive cease and desist letter.
"They're jacking me," Kramer says, "and then they have the temerity to have their attorney call [mine] up and say, 'Could you help us with our licensing problem?'"
"You requested that I speak to my client, Wayne Kramer, about whether there is something that Future/Now might be able to do to cause Mr. Kramer to assist Future/Now in its effort to obtain [the] license," wrote attorney Edward Saadi, Margaret's brother, on March 5. "As I predicted, Mr. Kramer has answered that question in the negative." What's more, the letter demands that Future/Now "immediately and permanently" stop using Mr. Kramer's image and that the filmmakers pay Kramer any money generated from its use so far--including box-office receipts and merchandise.
On his Web site Kramer writes, "I don't need their film to make my life complete. I have a good life. I have been telling the story of the MC5 all my life. It belongs to me and my partners in the band, not Future/Now Films." The new DVD documentary, Sonic Revolution, focuses on a reunion gig by the surviving MC5 members last spring in London, but it also includes a 30-minute documentary that aired on British TV. Some of the footage from MC5: A True Testimonial is duplicated--including color government surveillance tape of the Lincoln Park gig in 1968, a find the Future/Now team was particularly proud of. This summer the reconstituted band, dubbed DKT/MC5, will launch a world tour, including a Chicago date at Metro on June 11. A host of punk legends and contemporary rock stars, including Radio Birdman's Deniz Tek, Mudhoney's Mark Arm, Mark Lanegan from Screaming Trees and Queens of the Stone Age, Marshall Crenshaw, Evan Dando, and the Hives' Howlin' Pelle Almqvist, will rotate into the lineup.
"It's important for us to remember that there's really one issue here," says Legler. "It's not that complicated. They got this deal with Image Entertainment to put out the Sonic Revolution DVD, and in order to do so and capitalize on whatever MC5 money might be out there, they had to block the release of this film. It's about their DVD versus our film, and everything else is some kind of smoke screen. If they didn't have that deal they would not be doing this."
"When we signed on with our distributor, we had no knowledge of the pending Future/Now Films release date," Kramer has written in response to similar accusations from fans on MuscleTone's message board. "Although we requested time and again to be kept in the loop, they refused to tell us if and when their movie was going to be released. . . . We wanted Future/Now to include our concert as a complement to theirs. The assumption that we have timed our concert DVD to somehow conflict with theirs is just incorrect."
Still, the filmmakers haven't given up. "We continue to negotiate a settlement and we're ready with more proposals for them," Thomas says. But it takes two sides to negotiate.
Art accompanying story in printed newspaper (not available in this archive): photos/Leni Sinclair, Brad Miller, Pete Lekousis.