by : April 2016, Featured Articles, Music Law

Kesha’s Quagmire

Kesha’s Quagmire

The recent Kesha-Sony lawsuit has struck a nerve across the music industry by highlighting personal abuse and issues of gender inequality. It has also raised questions about the contractual control that a label can have over its artists.

Underlying it all is the typical rags to riches story of Kesha, the young Cinderella whose prince charming turned out to be a talented and well-connected LA producer, formerly a guitarist at Saturday Night Live.  Swept away by Dr. Luke (Lukasz Gottwald), Kesha dropped out of high school. Dr. Luke then signed her to his own publishing company Prescription Songs, and Kemosabe Records, a subsidiary of Sony Music Entertainment.  The label then penned a six record deal with Dr. Luke serving as Kesha’s producer, publisher, label rep, and day-to-day de facto manager.

Kesha released only two albums out of the six, and an EP—and then had enough. She now wishes to ink an alternative deal either with a major or an independent label, but Kemosabe Records and Sony still have Kesha under exclusive contract.  Sony and Dr. Luke claim to have invested in excess of 60 million dollars to launch and sustain Kesha’s career building it to its peak second album, Warrior.  Dr. Luke’s role is not in doubt. Kesha’s success started when Dr. Luke orchestrated her appearance in Flo Rida’s 2009 single Right Round, and continued with his efforts on her two albums. One of them, Warrior, went platinum. Ten songs overall charted in the Billboard Hot 100.1

The singer alleges that what is prompting her lawsuit are serious offenses by Dr. Luke, on both a personal and professional level.  The suggestion is that the execution of the contract may have been faulty and that it should be prone to review. Kesha’s original lawsuit, launched against Dr. Luke in 2014, accused the producer of abusing her “sexually, verbally, emotionally and physically to the point where she (sic) nearly lost her life.”2 At the time, the complaint for damages included charges of sexual assault and battery, intentional and negligent infliction of emotional distress, and the violation of California’s unfair business laws. For Kesha, Dr. Luke’s egregious behavior was perpetrated in an effort to shatter her self-image and self worth. She did indeed  check in to a rehab facility in the Chicago area  in 2014 and was treated for an eating disorder which she blamed on the producer’s remarks about her size and image.

In 2015, Kesha extended the lawsuit to include Sony Music Entertainment, and sought as well a preliminary injunction to limit the damage being done to her career through the drawn out legal battle that would ensue from her claims.3 Early in 2016 a judge denied her injunction. She has since resorted to denouncing Dr. Luke in the media and drawing attention to gender issues in the music industry.  In the social space, Dr. Luke’s guilt is presumed. There is also no recognition of Sony’s financial investment and the company’s role in her success: her contract is often portrayed as a form of modern indentured servitude.

While Dr. Luke could be guilty of assault and abuse, there is so far little evidence to substantiate Kesha’s claims. Curiously, even if Kesha’s were proven to be a victim, it is unclear that she would be absolved of her contractual obligations with Sony if the label offered to have her release product without working with Dr. Luke directly.  Whether or not such recordings would be released through Kemosabe Records and still benefit Dr. Luke is unknown.4 Judge Shirley Kornreich of the New York State Supreme Court did not find that Kesha’s career would be irreparably harmed if she could not record without Dr. Luke and Sony.

Kesha’s more recent allegations against Dr. Luke include the suggestion of date rape. But Kesha never reported rape or abuse to any law enforcement authority or Sony Music, and no criminal charges have been filed on this count or, for that matter, on any other felony.  This may be too because Kesha’s past allegations do not help.  In a videotaped deposition from 2011, on an unrelated lawsuit, Kesha states that Dr. Luke had not sexually assaulted her, that there was never any intercourse between them, and that he had not purposely drugged her. The result is that Dr. Luke’s defense claims that Kesha is subjecting their client to “trial by Twitter”, while instigating a smear campaign to ruin him and “extort” a superior recording contract in the process, from Sony or any competitor.5

So the case exists solely in civil court. Mark Geragos, Kesha’s attorney, has said that this will allow him to interview witnesses and  “do all the discovering ”, a supposedly good legal strategy.6 He claims too that Dr. Luke verbally threatened his client into denying the allegations of sexual assault.7

Meanwhile, emotions are spilling over within the industry. Prominent female musicians are up in arms, including some that owe their success to Dr. Luke, or have worked with him. Among them is Taylor Swift, who donated $250,000 to Kesha’s legal fund—a princely sum. At the other end, Bob Lefsetz, a well-known blogger, has urged the public not to rush to judgment.

Takeaway

In the meantime, Kesha’s career is on hold. The opportunity cost to her must be huge. In the eyes of a jury this would likely bolster her legal case, for there can be no real motivation to speak of from stopping cold in your tracks when you are a 29 year-old artist. If, as Dr. Luke’s defense argues, Kesha is hoping to pick up a better recording contract after her lawsuit, the gamble on her career to achieve that seems disproportionate to the rewards she could earn. Common sense would dictate that her energies be better expended on her art rather than in a courtroom with lawyers. Moreover, the odds seem to be against her having her winning day in court. This is not just due to the merits of the case: no female artist has ever successfully rendered a contract void due to sexual assault, a fact that Kesha must have known. She might well be said to be fighting for the principle of being right.

Kesha’s heavy heart with the Sony family of labels does not bode well for her creativity or the business. Dr. Luke’s contract is up for review this year and Sony may decline to renew it and so earn back some political capital. But if the legal battle is protracted, the artist-label partnership that once was may never recover. The possibility that this platinum selling artist may have her career end in the courtroom is real.

By Spencer Ritchie 


Endnotes:

1. (Gardner & Weiner, 2016)

2. (Gardner, Date Rape, ‘Sober Pills,’ and ‘Suffocating Control’: Read Kesha’s Lawsuit Against Dr. Luke, 2014)

3. (Moller, 2016)

4. (Kreps, 2016)

5. (Kreps, 2016)

6. (Dorris, 2016)

7. (Rose, 2014)

Bacher, D. (2016, 03 10). The Saga of Kesha, Dr. Luke and a Mother’s Fight: ‘He Almost Destroyed Us’ (Exclusive). Retrieved 3 12, 2016, from Billboard: http://www.billboard.com/articles/news/magazine-feature/6980931/kesha-dr-luke-battle-inside-story-mom-pebe-sebert-interview-exclusive

Britton, L. M. (2016, 03 10). Dr Luke denies reports that he will be dropped by Sony over Kesha rape allegation Read more at http://www.nme.com/news/kesha/92157#Li8LdzbGsIzOkRSk.99. Retrieved 03 12, 2016, from NME: http://www.nme.com/news/kesha/92157

Dorris, J. (2016, 02 22). The Kesha-Dr. Luke Battle: A Comprehensive Guide. Retrieved 03 13, 2016, from Slate: http://www.slate.com/articles/double_x/doublex/2016/02/kesha_and_dr_luke_court _battle_explained.2.html

Gardner, E. (2014, 10 14). Date Rape, ‘Sober Pills,’ and ‘Suffocating Control’: Read Kesha’s Lawsuit Against Dr. Luke. Retrieved 03 13, 2016, from Billboard: http://www.billboard.com/articles/business/6281722/kesha-sexual-assault-lawsuit-text-dr-luke

Kreps, D. (2016, 02 22). Dr. Luke: Kesha ‘Free’ to Record Music, Rape Accusations ‘Outright Lies’ Read more: http://www.rollingstone.com/music/news/dr-luke-kesha-free-to-record-music-rape-accusations-outright-lies-20160222#ixzz42nZpS5Bc Follow us: @rollingstone on Twitter | RollingStone on Facebook . Retrieved 03 12, 2016, from Rolling Stone: http://www.rollingstone.com/music/news/dr-luke-kesha-free-to-record-music-rape-accusations-outright-lies-20160222

Ledbetter, C. (2016, 2 19). Judge Rules Kesha’s Sexual Assault Allegations Aren’t Enough To Free Her From Contract [UPDATED]. Retrieved 03 12, 2016, from Huffpost Entertainment: http://www.huffingtonpost.com/entry/kesha-denied-release-from-sony-contract_us_56c7498ee4b041136f16b986

Maloney, D. (2016, 02 22). What’s Next For Kesha? Retrieved 03 12, 2016, from Vanity Fair: http://www.vanityfair.com/hollywood/2016/02/kesha-dr-luke-lawsuit

Moller, K. (2016, 02 21). A Timeline of Kesha’s Court Case Against Dr. Luke. Retrieved 03 13, 2016, from https://www.romper.com/p/a-timeline-of-keshas-court-case-against-dr-luke-6084

Rose, R. (2014, 10 21). Kesha Swore Under Oath Dr. Luke Never Had Sex With Her or Drugged Her. Retrieved 03 12, 2016, from http://jezebel.com/kesha-swore-under-oath-dr-luke-never-had-sex-with-her-1649145604

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