experience provided us with
invaluable guidance during times
when we faced critical decisions."
April 12, 2016
The news about pop music star Kesha’s employment lawsuit is abuzz. Kesha– whose real name is Kesha Rose Sebert— filed a civil lawsuit in attempts to void her recording contracts with Lukaz “Dr. Luke” Gottwald and Sony. Kesha was trying to enter into contracts with other recording and publishing companies without penalty. The lawsuit alleges causes of action of sexual assault and battery, sexual harassment, gender violence, civil harassment, unfair business, as well as intentional and negligent infliction of emotional distress.
Kesha’s employment lawsuit seeks to invalidate her exclusive contract with record producer, Dr. Luke, and Sony Music Entertainment. The contract requires her to work with them for a certain amount of time. Kesha’s contract with Dr. Luke’s publishing company (Prescription Songs) and label (Kemosabe Records) requires that he produce at least six songs on each of her albums. It also states that he will receive a specified percentage of the sales of each recording that he produces.
Dr. Luke’s lawsuit counter sued for breach of contract and defamation, arguing that the terms of the agreement and all subsequent amendments are valid and enforceable. Dr. Luke’s attorney, Christine Lepera accused Kesha of making “the same false claims of abuse against Dr. Luke she testified never happened under penalty of perjury.”. He continued, “As with all pleadings in this case, her affidavit is vague and unsubstantiated, with pivotal details such as dates fudged, and notably fails to address her unequivocal prior sworn testimony to the contrary.”
At first glance Kesha’s employment lawsuit looks like your typical anti-discrimination employment lawsuit. However, contracts in the music industry are more like production contracts requiring musicians to make a certain amount of records in a specified amount of time then they are like standard employment contracts. While it is true that music contracts are negotiated—the side that gets more favorable terms depends on bargaining power. An unknown musician at the beginning of her career may not have much bargaining power against a big record label. Thus, they may agree to give a large share of the profits to the record label in exchange for having their music recorded, marketed and distributed. The record label takes a monetary risk signing new talent, who may or may not actually sell records. If the musician gets more successful his or her bargaining power may increase and he or she may want to renegotiate the terms of her contract or terminate it altogether. Record companies have encountered this situation in the past and typically do not allow an artist to terminate their contract.
Legally, Kesha faced an uphill battle. Most courts will not force a regular employee (like a nurse or a police officer) to work under a standard employment agreement. If a nurse or policeman filed an employment lawsuit seeking to terminate employment, courts would typically allow them to resign. However, courts will require performance of a personal services contract, such as Kesha’s commitment to make songs with Dr. Luke for six albums. To get out of her contract with Dr. Luke Kesha needed to prove that Dr. Luke harassed her.
On February 19, 2016, New York Supreme Court Justice Shirley Werner Kornreich denied Kesha’s motion for a preliminary injunction. The injunction would have blocked Sony and Dr. Luke from seeking damages if she released songs outside her contract. The Court refused “to decimate a contract that was heavily negotiated and typical for the industry,” according to Justice Werner. Christine Lepera. Dr. Luke’s attorney released a statement saying that the Court “found that Kesha is already ‘free’ to record and release music without working with Dr. Luke as a producer if she doesn’t want to. Any claim that she isn’t ‘free’ is a myth.” And that the court’s decision “made it clear Kesha’s allegations of purported abuse were unconvincing and that she had no basis to void record contracts and copyrights.” Regarding Kesha’s allegations of sexual abuse by Dr. Luke, Lepera added, “the court also noted multiple times that her vague abuse allegations were devoid of factual detail, and that there was no evidence, whether from doctors or anyone else, to support them.”
Ultimately, the court did not find that Kesha proved her abuse allegations and found the contracts valid. The public outcry in support of Kesha has been fierce and fueled by large social media campaigns and support from several celebrities, including Lady Gaga.