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Touch and Go v. the Buttholes: Case Closed

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Touch and Go v. the Buttholes: Case Closed

Law geeks hoping to hear conservative U.S. Supreme Court justice Antonin Scalia utter the word butthole from the bench this term are out of luck: Corey Rusk, founder and head honcho of Chicago indie label Touch and Go, has allowed the deadline to pass for appealing the March federal court decision that ended his agreement with his onetime friends and cash cows the Butthole Surfers.

As chronicled in a Reader cover story earlier this year, the Buttholes sued Rusk in 1996 to take back six records they made for Touch and Go under a mid-80s handshake deal--a deal more or less identical to the ones hundreds of other bands have with other indie labels across the country. Rusk's defense argued that if a band and label do not explicitly agree on a length of time during which the label has permission to put out the record--the copyright license--federal law sets that period at 35 years, which even for a young artist might as well be forever. Rusk lost, appealed, and lost again. According to the appellate court's decision, the 35-year limit is a maximum, not a minimum, and if a band and label don't specify the length of the license, in most states either one can end the deal at any time.

Rusk's lawyer, former Big Black and Naked Raygun guitarist Santiago Durango, agreed with his client that another appeal would be a money pit. Rusk has already paid the Buttholes $100,000, and destroyed his inventory of their work after losing the first round. "It would have cost $3,000 just to get the [court documents] printed and filed," says Durango. "Our appeal was a calculated gamble, and we tried to do it as cost-effectively as possible. Corey prepared for the financial implications of this, and he rode it out." Rusk himself did not return calls seeking comment.

The appellate decision sent a chill through the cozy and informal world of independent music as label heads realized that some bands could legally walk off with their catalogs--a dependable asset many labels had taken for granted. To the best of my knowledge, so far no other band has done this, at least not via the courts, but in August the federal appeals court in Atlanta cited the Buttholes decision in granting a Miami woman the right to reclaim a jingle she'd written for a radio station.

Since the victory the Buttholes have parted ways with Capitol, their label since 1991, and signed a multialbum deal with Surfdog, an imprint of Disney-owned Hollywood Records. They've also left their former manager, Tom Bunch, for Surfdog president Dave Kaplan, who also handles Brian Setzer. In May, Bunch filed a lawsuit against the band for breach of contract, among other things, asking for an unspecified sum in unpaid commissions and other damages. The Buttholes are countersuing for more than $6 million, claiming Bunch soured their deal with Capitol by telling the label they wouldn't permit it to release After the Astronaut, the follow-up to their 1996 gold record, Electriclarryland.

Though their suit does not mention Touch and Go, singer Gibby Haynes says the Buttholes also blame Bunch for exacerbating the dispute with Rusk--who famously refuses to deal with managers. "He had a lot to do with how Corey perceived us," Haynes says. Asked if the two sides might settle, Buttholes attorney Michael A. Lam said, with apparently unintended irony, "That's touch and go."

The Buttholes are now putting together their first album for Hollywood, due in April. It will include some new tracks, some material the band recorded during its troubles with Capitol, and a few songs salvaged from After the Astronaut. The band no longer wishes to release the three-year-old record, though Capitol relinquished the master tapes, but had hoped to use the artwork guitarist Paul Leary conceived for the cover. Capitol, however, had other ideas. "When we were thinking of what we wanted for the LP cover Paul made the sketch for the front and back of the album and got one of his favorite artists, Mark Ryden, to execute it," drummer King Coffey explains. Ryden's back-cover image, a little green man in cowboy gear smoking a peace pipe with an Indian chief, is now on the front of Shapeshifter, the Marcy Playground album that Capitol released this week, and the label won't let the Buttholes have the unused half of the painting--a Indian woman holding an alien baby--because it's too similar to the back. "They used the same log lettering for 'Marcy Playground' that previously said 'Butthole Surfers,'" Coffey laments. "Capitol can get away with this because they technically paid for the Mark Ryden painting. It was a recoupable business expense from our art budget."

Meanwhile, the band has reissued four of the records it won back from Touch and Go: Psychic...Powerless...Another Man's Sac (1984), Rembrandt Pussyhorse (1986), Locust Abortion Technician (1987), and Hairway to Steven (1988) are now available on Latino Bugger Veil, an imprint the group last invoked in 1989 to release the "official bootleg" Double Live. The albums were distributed by Revolver USA in San Francisco. "Revolver wanted us to sign something saying we wouldn't sign with a major that would put out the same records and flood their market," Haynes says. "We wanted to do it verbally, and they were kind of pissed."

The band prevailed, but this time made sure to specify a time limit--one year, which has proved to be long enough: all 7,000 copies of each record have been taken by stores. "And that's without any promotion," Haynes adds proudly. When the agreement with Revolver is up, the Buttholes may license the recordings to Hollywood, or they may actually staff the Latino Bugger Veil label for the first time. If their forthcoming record yields the "three or four hit singles" that Hollywood senior vice president Rob Cavallo predicted recently in Billboard--which would be more than the band's had in its entire career--the Buttholes could stand to profit immensely from maintaining complete control. "There's some formula for how much your back catalog is expected to sell if you have a big hit--like, if we had a two-million seller, we might be able to sell 20 percent of that," says Haynes. "We could pay a couple people $30,000 for a couple years and just go for it....We're just waiting for the returns to decide what to do next."

Peter Margasak is on vacation.

Art accompanying story in printed newspaper (not available in this archive): illustration/Damon Locks.

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