How the Law Failed Kesha

Last Friday, a judge ruled that she wouldn’t release pop singer Kesha from her recording contract with a producer who allegedly raped and abused her for a decade. Support has poured out from many other pop singers including Lady Gaga, Janelle Monae, and most recently Taylor Swift, who donated $250,000 to Kesha’s legal battle. 

 

When I first heard about the recent Kesha ruling, the lawyer in me immediately thought, “How old was Kesha when she signed the original deal?” 

 

To find out, I went docket-diving, pulling the supporting documents from the case, including the original contract signed between Kesha and her producer back in 2005. Kesha Rose Sebert, was born March 1, 1987. Eleven years ago, when she signed her record deal with super-producer Lukasz “Dr. Luke” Gottwald, she was barely eighteen. On the contract, her signature has the scrawl of a high schooler, someone still unaccustomed to signing her name on a regular basis. 

 

Had Kesha signed the contract while she was still a minor, the contract would have been voidable. But she was 18, legally old enough to sign away her first six albums to a man she barely knew, a man she alleges turned out to be a monster. And the recent ruling protected only the alleged monster and his corporate masters, not Kesha. 

 

As a lawyer, I can understand the technical reasons why the judge ruled as she did. But as a woman, a feminist, and yes, a lawyer, I think she got it wrong.

 

The Power of Dr. Luke 

 

Long before Kesha became Ke$ha, Gottwald, along with his then-mentor Max Martin, wrote and produced hits such as Kelly Clarkson’s “Since U Been Gone” (2004) and Katy Perry’s “Kissed a Girl” (2008). In 2009, Gottwald produced his first solo #1 hit, “Right Round” by Flo Rida. Kesha provided an unpaid hook for the song. That hook helped launch Kesha’s career even though she never made a penny off it.

 

When Kesha was 17 and living on prayer in Los Angeles, Gottwald was 32, nearly twice her age, and well on his way to becoming one of the most successful pop music producers in history. According to Billboard Magazine, Gottwald “has garnered 21 top 40 Hot 100 singles, becoming the producer with the third most such hits in the history of the Billboard charts.” 

In other words, he is a hitmaker. And is very, very valuable to Sony Records. Way more valuable, one could argue, than Kesha. She’s just another nearly-former pop star who can be replaced by the endless stream of bright young women who are used, devalued, and eventually destroyed by the entertainment industry—in a perfectly legal fashion. 

 

Whose Failure to Report?

 

Gottwald instigated the relationship with Kesha after hearing a demo tape that got passed along to him. In a 2010 Billboard Magazine cover story on Kesha, the reporter marvels at Gottwald’s discovery of Kesha. When Gottwald first heard Kesha’s demo, she was still a goofy high schooler. Gottwald called her home in Nashville out of the blue. “Eventually he got Ke$ha on the phone, and then to a meeting in New York. Ke$ha left [high school] behind and moved to Los Angeles.” 

 

She was 17. And by 18 she had signed with Gottwald. She alleges in her complaint that Gottwald first sexually assaulted her shortly after her 18th birthday and threatened her about ever exposing his abusive behavior:

 

He threatened that if she ever mentioned the rape to anyone, he would shut her career down, take away all her publishing and recording rights, and otherwise destroy not only her life but her entire family’s lives as well. He also threatened her and her family’s physical safety. Ms. Sebert wholly believed that Dr. Luke had the power and money to carry out his threats; she therefore never dared talk about, let alone report, what Dr. Luke had done to her.

 

After Kesha brought her lawsuit and looped in Sony as a defendant, Sony responded: “Sebert cannot have it both ways…She cannot claim that Gottwald intimidated her into silence, then—as an apparent afterthought—seek to hold Sony…liable for failing to act on conduct that she did not report.” 

 

Her legal claim is that Sony failed to act on knowledge that Gottwald was abusive toward women he worked with, including Kesha. My question is this: Is Kesha’s reporting of the alleged abusive behavior the only way that Sony could have discovered it? Why does the weight seem to sit only on single woman’s shoulders to bring down a serial abuser?

 

Jian Ghomeshi. Bill Cosby. Terry Richardson. A code of silence protects men in power against not only the direct victims of their abuse, but also against the bystander witnesses of abuse. In each of these other cases, we ask ourselves, why did everyone else keep silent for so long? Why do bystanders enable serial abusers and rapists to continue to rape and abuse? 

 

And our legal system, when it remains willfully ignorant of the power dynamics of the music industry—as the judge in Kesha’s case was—enables them as well. 

 

If Kesha’s allegations are true, then the following are likely true as well: Bystanders knew about her abuse at Gottwald’s hands. And Gottwald abused other young women. What will it take to believe Kesha? A line of women as long as Ghomeshi’s? Cosby’s? 

 

Unprecedented

 

Kesha is hardly the first artist to sue to be released from a multi-record contract. Usually, these lawsuits arise because of artistic differences. But I think Kesha’s case is unprecedented—because she is not suing because of artistic differences. She is suing because she alleges that her producer is a serial rapist and abuser and that her label, Sony, props him up. 

 

And on February 19, a New York state trial judge, Shirley Werner Kornreich, sided with the producer and corporation and stated that Kesha had no grounds for a preliminary injunction. 

 

I would argue that Kesha has no grounds that are visible to the court because what she’s arguing is brand new. Her case has no precedent in entertainment litigation as far as I can tell. An analogy that might make sense is an unsafe workplace lawsuit against a factory that has a toxic gas leak. 

 

Toxicity is an apt metaphor. Women in the entertainment industry are not supposed to stand up to toxic abusers, whether those abusers are individual men or corporations. As Madeleine Davies at Jezebel put it, corporations (and men) are in much better legal positions than those of us who have “been legally cursed with female bodies and female voices, which are meant to be soft and agreeable.” Kesha, whether because she had had enough or because she had reached a point where she felt confident enough to do so, ceased being soft and agreeable. 

 

Why Did Kesha Lose?

 

First, a bit about where we are in the lawsuit. In October 2014, Kesha filed a civil lawsuit against Gottwald, his record label, and the parent company Sony, alleging many things, including sexual abuse by Gottwald. While this civil lawsuit has been moving through the courts, she’s been unable to have anything to do with her music, her brand—anything “Ke$ha”—without working with the very people she’s suing—her alleged rapist and Sony. 

 

In September 2015, Kesha filed for a preliminary injunction that would allow her to resume making music and to stop Gottwald and Sony from enforcing the exclusivity contracts she’d signed with them. 

 

In most jurisdictions (including New York), courts will allow preliminary injunctions—which are temporary—so long as two things are true: the requesting party is likely to win the underlying lawsuit and the party will suffer “irreparable harm” if the injunction isn’t granted. Kesha’s lawyer provided more than adequate proof of irreparable harm to her career should Kesha’s career continue to stall. 

 

So why didn’t Judge Kornreich grant the preliminary injunction? 

 

On the most basic level, Kesha lost because Judge Kornreich ruled Kesha was not going to suffer irreparable harm: “There has been no showing of irreparable harm. She’s being given opportunity to record.” 

 

The judge is referring to the fact that Gottwald and Sony have agreed to allow Kesha to record under Sony with a producer other than Gottwald. 

 

Kesha’s lawyer argued that such a promise was “illusory,” given that Gottwald is the hitmaker that Sony is invested in, and that not working with Gottwald would essentially mean Kesha was being “set up to fail.” The judge refused to believe the argument: “You’re asking me to assume an entity like Sony, who are in a competitive position, will not want to make money on their investment.”

 

Their “investment”: the judge, of course, was talking about Kesha herself. At that point, anyone in the courtroom should have known Kesha was going to lose. By calling her an investment, the judge reduced Kesha, a person, to a corporate asset. 

 

As a lawyer, I know that Judge Kornreich worked well within the boundaries of existing law. If Kesha can indeed record music, in the eyes of the law, any harm she’s suffered over the past few years has been self-inflicted. She chose to stop making music. 

 

Put another way, of course, Kesha chose to stop making music with her alleged rapist and her alleged rapist’s company. But for the purposes of the hearing in front of this judge, her allegations of suffering just did not matter. 

 

But Judge Kornreich didn’t stop once she pointed out the lack of irreparable harm to Kesha, the point at which Kesha lost the motion. 

 

No—the judge also discussed the merits of the underlying rape allegations. And, according to the Hollywood Reporter, she cast serious doubt on them: “Kornreich spoke of the lack of medical evidence such as hospital records to corroborate the assault allegations.” But arguably, it wasn’t the time for such doubting. The judge had already decided that Kesha would lose the injunction—she didn’t have to question her credibility as a rape survivor too. That’s Gottwald’s attorney’s job. 

 

According to NME, Judge Kornreich also called a Kesha’s injunction request an “extraordinary” one. But Kesha’s request was for a preliminary—that is, temporary—injunction, not a permanent one. Furthermore, if the judge had granted the preliminary injunction, Kesha would have had to put money into a court fund (called a “bond”) to reimburse Sony and Gottwald for any losses they might suffer due to the injunction should they end up winning the underlying case. 

 

So I disagree with Judge Kornreich. A preliminary injunction is precisely the tool a judge can use in an unprecedented case like Kesha’s. It’s just the tool you can use to protect a vulnerable person against a behemoth corporation and an alleged predator. The corporate interests would be protected by the bond, and Kesha would be protected by the injunction.

 

But Judge Kornreich didn’t use this tool to temporarily protect Kesha. Instead, she followed her “instinct.” She stated, “My instinct is to do the commercially reasonable thing.” 

 

How did she decide what was “commercially reasonable”? She looked at the contract and drew some conclusions, according to People: “You’re asking the court…to decimate a contract which was heavily negotiated and signed by two parties in an industry where these kinds of contacts are typical.” 

 

With her words, the judge revealed her presumption: that an 18-year-old Kesha Sebert and a hitmaker nearly twice her age were negotiating equitably back in 2005. 

 

They were not. 

 

She stated that theirs was a contract “typical” to the “industry.” 

 

Here I agree with Judge Kornreich. This kind of contract is typical, as is the kind of behavior Kesha alleges—the high-profile cases popping up now are shining even more light on the dark underbelly of the entertainment industry. 

 

But our courts don’t know what to do about it, at least not yet. And that’s a serious problem.