Electriclarryland, released 20 years ago last month, was the Butthole Surfers’ receipt for years spent cementing their reputation as arguably the most notorious band to ever fall on the pop music radar. Their early shows, where naked women, fire, and inspired experimental noise were all fair game, more aptly fell into the category of freakish performance art pieces than they did traditional concerts. The Surfers were for years the embodiment of cult, but “Pepper,” Electriclarryland’s first single, took the band to once-unthinkable heights of mainstream success. In maybe the most glaring example of just how thoroughly cannibalized underground music became by radio and MTV in the ’90s, the single held the No. 1 spot on the alternative rock charts for three weeks in July 1996. To put a finer point on things, the same band whose name radio DJs refused to utter on the air had a chart-topping song. Stranger things have happened, but not many.
Still, there was more of a slow build behind the Surfers’ brief ascent to the top of the rock charts than it seemed. By 1996, the band was five years into its contract with Capitol Records. The band’s first Capitol release, 1993’s Independent Worm Saloon, was still plenty weird in the broad scheme of things, but it was also far and away the Surfers’ most polished and straightforward studio effort. The streamlining of the band also showed itself in other aspects of the band’s operations. Most notably, the Surfers officially got a manager after years of running their own crazed, psych-punk ship. It’s easy to see this as a sound business move as the band attempted to navigate major-label waters, but it was one that drove a wedge between the Surfers and their former label, Touch And Go Records.
Started as a fanzine by Tesco Vee and Dave Stimson in 1979, Touch And Go began operating as a record label in 1981. The label put out early recordings by bands including the Fix, Negative Approach, and the Necros, whose bassist, Corey Rusk, helped Vee run the label in 1981 before purchasing it in 1983. Rusk has since built Touch And Go into one of the most well-respected and artist-friendly labels in America, with an enviable client roster that over the years has included the likes of The Jesus Lizard, Pinback, Shellac, Ted Leo, TV On The Radio, and Killdozer in addition to the Butthole Surfers.
“It wasn’t a job,” says Ed Roche, who has handled purchasing and licensing for the label as both a full-time employee and freelancer since 1992. “You spent 10 or 12 hours a day in the office, but it all carried over to your personal life. Everyone hung out together outside of the place. When I got married, there were probably a dozen different bands represented there. People in the bands and the people at the label just became your friends. There’s no politics there, none. It was all very organic.”
The Surfers, one of the label’s earliest signings under Rusk’s watch, released four records with Touch And Go, all on nothing more than a handshake and an oral agreement that all profits would be split 50/50 between the label and the band. The agreement was common practice at Touch And Go, and it held up without protest, even after the Surfers left for Rough Trade Records in 1989. It wasn’t until just before the release of Electriclarryland that the Surfers’ management sought to renegotiate the terms of the band’s arrangement with Touch And Go. When Rusk refused to give the band a higher royalty rate, the Surfers sought the return of their back catalog. Rusk again refused, and the band filed suit against the label in December 1995.
“We started hearing through the grapevine that one of their bands was getting a better percentage, a better deal, than we were,” Surfers guitarist Paul Leary said. “That incensed us a little bit because we felt like we were floating the Touch And Go boat. We were outselling their entire catalog combined.”
Complicating matters further, Touch And Go also handled distribution for Trance Syndicate, the label run by Surfers drummer Jeffrey “King” Coffey. It would have been easy for Rusk to cut his relationship with Trance given the ongoing litigation with the Surfers, especially with Coffey’s name attached to the lawsuit. But the relationship between both labels remained unchanged.
“I cared about the bands on Trance, and other than the fact that Trance was owned by King, the work we did for those bands was unrelated to the issue with the Buttholes,” Rusk wrote in an email to The A.V. Club.
U.S. District Court ruled in favor of the band in early 1998, finding that the Surfers could end their relationship with the label at any time given the unwritten nature of the agreement. But what started as a fight over royalties and percentages escalated into something much bigger. Rusk soon afterward appealed the decision. Citing Section 203 of the Copyright Act of 1976, he claimed that Touch And Go owned the rights to the Surfers’ records for a minimum of 35 years.
“I liked Corey,” Leary said. “We were friends and it was a good business relationship. But the second that he said he owned me for life, that was more than I could handle.”
As the suit gathered momentum, many in the independent music community rallied behind Touch And Go, not the least of which staff and artists with the label. Roche recalls that he was ready to move on from the label in 1996, even going as far as to begin training someone to take over his duties. Then he caught wind of the lawsuit.
“I just dropped it,” he said. “I was staying. There was no way I was going to leave while that was happening.”
Support for Touch And Go during the litigation wasn’t confined strictly to those with immediate ties to the label. The label also got vocal support from other respected independent figures. One such supporter was Dischord Records label head Ian MacKaye, who met Rusk when he produced the Necros’ first single in 1981. Like Rusk, MacKaye also runs his legendary Washington, D.C. label on an honor system with his acts.
“I can’t speak highly enough of Corey Rusk,” he said. “He’s a straight shooter. He is straight and good.”
MacKaye has also been a longtime supporter of the Surfers, whom he first saw in the early 1980s while touring and performing with Minor Threat. He recalls sharing live tapes of the Surfers with Rusk prior to his signing the band to the label. “They were incredible. I first saw the Butthole Surfers in 1982. They were playing the Whiskey A Go Go opening up for the Dead Kennedys and T.S.O.L., and it was totally one of the most mindblowing shows I’d seen.”
But with respect to the legal dispute between both sides, MacKaye expressed suspicion about the band’s concerns over ownership, noting Touch And Go’s commitment to keeping its entire catalog in print and honoring its agreed upon 50/50 profit sharing with its bands.
“It would be one thing if Touch And Go had not been pressing the records, not been distributing them, and not letting anyone else do it,” he said. “Yeah, then it’s an issue of ownership. But if the records are being made and sold and royalties are being paid, then what’s the problem here? What is the issue?”
The suit was put to rest for good in March 1999, when the Seventh Circuit of the U.S. Court Of Appeals ruled in favor of the Surfers. The appellate court found that the Copyright Act existed to protect bands, not labels, from bad contracts.
“I took one semester of business law, and the first thing they taught me was that an oral agreement could be ended by any party at any time,” Leary said. “That’s just the way it is. If he really wanted to own us for life, he should have gotten that on paper. Paragraph 203 of the Copyright Law, we helped clarify that, so now it’s used to protect artists. Somehow we’re the bad guys for that.”
“It would be interesting to see how much the Buttholes actually benefited financially,” Roche said of the lawsuit in retrospect. “I’ll run into bands around Chicago that I’ve known for a while and they’ll laugh about getting a $3 royalty check. But you can talk to other bands and they’ll say, ‘Well, my label hasn’t even accounted to me for five years.’ It would take a lot of work to find bands or employees that would have a bad thing to say about their time spent (at Touch And Go).”
In 2016 the Butthole Surfers are laying low, having not played together in roughly three years, by Leary’s estimation. “I just don’t want to play live anymore,” he said. “It’s not fun, I don’t like touring. That hour on stage is a whole lot of fun, but the other 23 hours off stage just fucking suck.”
The band continues to sell its records through its own imprint, Latino Buggerveil, even though Leary admits that the move to reclaim their Touch And Go releases hasn’t been to the band’s financial benefit. But 20 years later, he says he has no regrets over the fallout with his former label. Faced with the choice of having control over his band’s music or moving more units, he’s happy to have ownership of his work.
“We might have made more money if we stuck with Touch And Go,” he said. “But to me, it was the right thing to do, and in the end I ended up in a really good place. I wouldn’t change any part of my career, simply because I ended up where I wanted to be and I’m really happy now.”
The dust has long settled on the Surfers/Touch And Go suit. But soon after the appeals court’s decision in 1999, concern spread through the independent music community about the ripple effect the decision would have on the good faith relationships employed by Touch And Go and other labels. Speaking to the Chicago Reader soon after the appellate ruling, Santiago Durango, Rusk’s lawyer and former guitarist for Chicago noisemakers Big Black, predicted that “any label in Chicago should be concerned” about the ruling.
Durango’s comments are understandable in the immediate aftermath of the suit, but more than 17 years later, concerns about the death of the handshake deal between independent labels and bands seem largely unfounded. Such agreements may not be as prevalent among independent labels as they once were 20 or 30 years ago, but they’ve hardly gone the way of the dinosaur. Rusk, for one, refused to let the lawsuit dictate how Touch And Go operates. Despite downsizing its roster considerably in 2009, the label remains healthily afloat while continuing to operate on its own terms.
“Our relationships with our bands have remained unchanged,” he said. “We treat them fairly, give a shit, and do a good job for them. I know they appreciate it, and they know we appreciate them.”
Touch And Go has been thwarting written contracts for 35 years, but smaller, newer labels are also staying true to that arrangement. One such label is Red Scare Industries. Founded by former Fat Wreck Chords employee Toby Jeg, the Chicago-based indie has released records by Brendan Kelly, Sicko, and Teenage Bottlerocket among others since 2004. None of the labels’ agreements are signed on paper, he said.
“I emphasize to everyone that if there’s a problem, just call me,” Jeg said in an email. “I know it’s naive, but it’s worked so far.”
Then there’s Dischord, where contracts have never been part of the label’s M.O. The label doesn’t have an attorney, and it hasn’t needed one. If things between the label and a band escalate to such a point where attorneys are needed, MacKaye says he would rather both sides go their own separate ways.
“From the beginning of this label, people have said that the way we do things is unsustainable, unrealistic, idealistic, and we were just dreaming,” he said. “Well, the dream is now 35 years old, so they can go fuck themselves.”