Should Kesha have known Dr. Luke would sexually assault her?
Kesha Sebert has been mired in a legal battle with uber-producer Lukasz “Dr. Luke” Gottwald since 2014. She alleges years of rape, verbal and physical abuse, and unfair business dealings by Gottwald, whose conduct, she claims, resulted in her development of an eating disorder for which she spent two months in rehab. One of the more disturbing allegations is that Gottwald gave Sebert what he said were “sober pills” but were, in fact, roofies, before raping her; she also says that he threatened her family’s safety. Sebert has said that fear of Gottwald — particularly his power to crush her still-burgeoning career in the music industry — prevented her from seeking criminal charges against him. Gottwald denies all the allegations.
What Sebert wants is to be let out of her recording contract. (Gottwald responded to Sebert’s civil suit by countersuing Sebert and her mother for defamation.) But her efforts to do so have been halted at every step. The latest setback for Sebert came on Tuesday, when New York Supreme Court Justice Shirley Kornreich, who has previously ruled in Gottwald’s favor, sided again with him again, rejecting Sebert’s amended lawsuit.
And in this ruling, Kornreich appeared to suggest that Sebert should have known signing with Gottwald could have endangered her safety.
It seems unlikely that Sebert will be able to get out of her contract based on the document as written, though she has tried and is still trying to do so: Pointing out technicalities where Gottwald was in breach, looking for loopholes based on state laws. But it appears that her angle here is to hope that Judge Kornreich can see the bigger picture: Sebert needs Kornreich to believe that this contract is trapping her in an abusive relationship, and to free her from it.
In her suit, Sebert says, “You can get a divorce from an abusive spouse. You can dissolve a partnership if the relationship becomes irreconcilable. The same opportunity — to be liberated from the physical, emotional, and financial bondage of a destructive relationship — should be available to a recording artist.” As the Hollywood Reporter notes, “usually, judges are fairly permissive by allowing amended complaints.” Allowing the complaint wouldn’t have been an automatic win for Sebert; it simply would have given her the chance to present her arguments. But Kornreich was unmoved.
As the ruling explains, Sebert alleges abuse dating back to 2005. She “pled that Gottwald’s verbal and physical threats were not foreseeable” when she signed with Kemosabe/Kasz Money Inc. and Prescription Songs (the production and publishing companies, respectively, owned by Gottwald). But Sebert signed with Prescription on November 26, 2008, at which point, Kornreich ruled, “Gottwald’s allegedly abusive behavior was foreseeable.”
A person could argue that even if Sebert had reason to believe Gottwald might endanger or rape her, she had too much on the line professionally to walk away from the opportunities he afforded her, or to risk cutting off her shot at success in music altogether. Sebert alleges Gottwald assaulted and abused her in the very early days of her professional life, before she had any singles on the radio or albums on the shelves — which is to say, before she had any industry clout. Chances are you didn’t hear her voice until 2009, when she sang on the hook on Flo Rida’s “Right Round” (produced by Gottwald) and released her debut single, “Tik Tok.” Kornreich’s ruling has the smack of victim-blaming about it. There’s a scolding “you should have known” tone there, like someone asking an abused spouse why she doesn’t “just leave” her husband.
“You can get a divorce from an abusive spouse. You can dissolve a partnership if the relationship becomes irreconcilable. The same opportunity — to be liberated from the physical, emotional, and financial bondage of a destructive relationship — should be available to a recording artist.”
Because Sebert elected not to pursue criminal action against Gottwald (this is not unusual among sexual assault survivors), she has yet to be able to make the case, successfully, that Gottwald has violated their contract. “There’s not really a mechanism, in contract law, for her to address what she’s trying to do,” Deborah Wagnon, attorney and associate professor specializing in recording industry legal issues in the College of Media and Entertainment at Middle Tennessee State University, told ThinkProgress in February.
But that hasn’t stopped her from trying: Over the course of her legal saga, Sebert has tried to demonstrate that Gottwald has violated the terms of their contract in more easy-to-prove ways: That he owes her royalties, that he should honor a California law that would let the contract run out in seven years, that his contract with Sony is running out this month anyway. All of those efforts have failed.
Sebert’s recording contract, signed in 2005, is with Kemosabe, Gottwald’s imprint under Sony. This nesting-dolls situation is one of many complicating factors in Sebert’s release: Even if Sony were inclined to dissolve the recording contract, it is not within Sony’s power to do so, because Sebert’s contract isn’t with Sony but with Gottwald’s imprint beneath it. Should Sony choose not to renew Gottwald’s contract — Sebert referenced reports that Gottwald’s contract was slated to end this month — that still wouldn’t necessarily be enough to get Sebert out of her deal. And Judge Kornreich ruled that Sebert’s expectation that Gottwald’s contract with Sony would be ending was “speculative.”
Sebert’s amended lawsuit claims Gottwald owes her unpaid royalties and that he failed to support or release her next album; Gottwald, who is suing Sebert for defamation, responded that Sebert is the one who owes him money, not the other way around. (He says she owes $1.3 million.) Judge Kornreich sided with Gottwald, saying Sebert didn’t “perform under her recording agreement” and citing Sebert’s failure to give 30 days notice to end her songwriting contract.
Also rejected on Tuesday was Sebert’s effort to invoke the “Seven Year Rule” on personal service contracts. As her counterclaim states, “To protect young, newly discovered recording artists from this precise manner of exploitation in quasi-lifetime un-severable professional relationships, California labor law requires all music contracts to end within seven years of execution.” But Kornreich opted to honor a New York choice-of-law provision — essentially, house rules.
This echoes another unfortunate twist for Sebert’s case: Although Sebert alleges abuse that took place in California, which is where she filed her original claim, Gottwald got the case moved to New York because of a provision in Sebert’s recording contract (for everyone playing along at home, that would be the recording contract from which she is trying to extricate herself) that gives him the power to pick the venue where legal disputes related to the contract will be heard.
Gottwald chose New York — but upon arrival, Gottwald’s team argued that Sebert’s claims be dismissed because they happened in California and, as a result, did not violate New York law. Judge Kornreich sided with Gottwald. As ThinkProgress has noted before, Gottwald could take the Kesha case on a nationwide tour, if he wanted to, and make the same argument for dismissal every time.
It is also worth noting that Judge Kornreich is married to Ed Kornreich, an attorney whose firm, Proskauer Rose, represents Sony. Sony has yet to comment on the matter, but as “music insider” told Page Six, “There seems to be a strong conflict of interest.”