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Kesha’s New Legal Strategy: Record And Release New Music As Fast As Possible

CREDIT: LAURA ROBERTS/INVISION/AP
CREDIT: LAURA ROBERTS/INVISION/AP

Kesha has something to give to Dr. Luke: 28 new songs.

Pop star Kesha Sebert alleges her producer and label head Lukasz “Dr. Luke” Gottwald abused and sexually assaulted her. She has tried, since 2014, to extricate herself from her contract with Gottwald and his Sony imprint, Kemosabe. And she has failed, over and over again, in her efforts to use the legal system as a way out.

So she’s dropping her case in California, where she originally filed her claims and where her case has been on hold for over a year, “while she pursues her appeal and other legal claims in the New York courts,” her counsel, Daniel Petrocelli, said in a formal statement. In New York, Sebert’s only pending claim is her request to terminate her contract with Kemosabe.

In the meantime, according to Petrocelli, Sebert “is focused on getting back to work and has delivered 28 new songs to the record label. We have conveyed to Sony and the label Kesha’s strong desire to release her next album and single as soon as possible.”

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Sebert has reportedly recorded nearly 30 songs at her own expense — not a small endeavor, financially or creatively. Keeping in mind that Sebert’s team has had no luck achieved its desired aim through the court system, it looks like Sebert has new legal strategy that isn’t a legal strategy at all. It’s an artistic one: Make new music.

By providing such a significant quantity of new music to Kemosabe, Sebert forces the label’s hand. Either the music gets released — the faster Sebert cranks out work, the faster she can fulfill the terms of her six-album deal and be done with it — or Kemosabe stalls, fails to adequately promote or even release her work, in which case Sebert can return to court to say the label is in breach of contract and she has to be released in order to resume her career. Sebert’s last album, Warrior, came out in 2012. (She also sang on “Timber,” a Pitbull single released in 2013. It was produced by Gottwald.) Sebert is on tour this summer as part of Kesha and the Creepies, and her sets include new music.

Christine Lepera, an attorney for Gottwald, responded to Sebert dropping her California case in an e-mail statement to Rolling Stone: “If Kesha is voluntarily dismissing her claims in the California case, it is because she has no chance of winning them. Earlier this year, she lost her meritless counterclaims against Dr. Luke in the New York action. Recently, the California Court invited Dr. Luke and the other defendants to move to dismiss Kesha’s claims in that action. Kesha never should have brought her false and meritless claims against Dr. Luke in any court. Dr. Luke’s defamation and other claims against Kesha are still proceeding.”

Late Monday night, Sebert wrote in a Facebook post that her “fight continues… I need to get my music out. I have so much to say.”

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The only reason Sebert and Gottwald are even in court in New York is because Gottwald wanted to be there. California is where Sebert alleges Gottwald committed violent offenses against her; it is also where both Sebert and Gottwald reside. (Sebert also has a residence in Tenneesee.) But a provision in Sebert’s record contract allows Gottwald to choose the venue where legal disputes related to that contract are heard. Gottwald chose New York and, upon arrival, argued for the case to be dismissed on the grounds that what Sebert alleges would have occurred in California and, as a result, did not violate New York law.

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The New York judge trying Sebert’s case agreed with this argument and, so far, has given Sebert little reason to hope her efforts will be successful. In February, New York Supreme Court Justice Shirley Kornreich refused to grant Sebert a preliminary injunction that would have protected Sebert from legal action should Sebert have elected to release music outside of the confines of her Sony contract while her case played out in court. (It’s important to note that the New York case was not about whether or not Gottwald raped or abused Sebert; it was only about whether could record without Gottwald or Sony’s involvement and be free from prosecution.)

Kornreich ruled against Sebert, telling her, “You’re asking the court to decimate a contract that was heavily negotiated and typical for the industry. My instinct is to do the commercially reasonable thing” by upholding the contract. The fact that Gottwald invested tens of millions of dollars in Sebert’s career and said he was okay with Sebert recording outside of his purview “decimates your argument.”

Why Sony Doesn’t Want To Let Kesha Out Of Her Contract With Her Alleged AbuserWhy can’t Kesha get out of her contract? On Friday, New York Supreme Court Justice Shirley Kornreich declined to grant…thinkprogress.orgIn April, things got worse for Sebert when Kornreich tossed out most of Sebert’s claims. Sebert’s allegations against Gottwald are horrifying. She claims he plied her with GHB — commonly known as the date rape drug; he told her they were “sober pills” — and, once he had successfully drugged her, raped her. She says he threatened her career and the safety of her family. She describes incessant, vicious emotional abuse that she says contributed to her development of an eating disorder, for which she needed to be treated at a rehab facility.

Kornreich’s ruling in April was not based on whether or not she believed Sebert’s allegations — “For purposes of the motion to dismiss, Kesha’s allegations are accepted as true,” Kornreich wrote in her decision — but rather that the statute of limitations on those allegations has run out.

Sebert says Gottwald’s abuse started “shortly after” her arrival in Los Angeles in 2005, and that Gottwald proceed to “sexually, physically, and verbally” abuse her for a decade. But Kornreich said Sebert only cited “two specific instances” of that abuse, one in 2005 (the “sober pills” incident) and one in 2008, when Gottwald allegedly made Sebert snort illicit substances before getting on a plane together and, during the flight, “continually forced himself on her.”

But Kemosabe, Gottwald’s imprint, wasn’t established until 2011. And in New York, the statute of limitations for “a cause of action for sexual assault and battery” is only one year. For a civil claim “to recover for physical, psychological or other injury or condition suffered as a result of rape in the first degree” or “aggravated sexual abuse in the first degree,” the statute of limitations is only five years.

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Kesha Says She Was Offered ‘Freedom’ In Exchange For Recanting Rape Accusations Against Dr. LukeOn Sunday, pop singer Kesha Sebert alleged that she was offered her “freedom” if she agreed “to APOLOGIZE publicly and…thinkprogress.orgIn her ruling, Kornreich criticized Sebert’s decision to be silent (“She failed to make the necessary allegations”) and dismissed Sebert’s claim that Gottwald’s behavior constituted a hate crime. Kornreich said that there was no proof “Gottwald harbored animus toward women or was motivated by gender animus when he allegedly behaved violently toward Kesha.”

“Every rape is not a gender-motivated hate crime,” Kornreich ruled.

So Sebert is still tied to Kemosabe and, by extension, Sony, even though Sebert has alleged that Gottwald’s “proclivity for abusive conduct was open and obvious” to Sony brass, who simply ignored or facilitated it. In her lawsuit from 2015, Sebert claimed that Sony “provided Dr. Luke with unfettered and unsupervised access to vulnerable female artists beginning their careers, and who would be totally dependent upon Dr. Luke for success.”

Sebert, like so many victims of sexual assault, has chosen not to pursue criminal action against her alleged assailant. Without it, though, she has no grounds to be freed from her contract — technically, Gottwald and the label are not in breach of contract. As 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 after Kornreich’s Februrary ruling, “there’s not really a mechanism, in contract law, for her to address what she’s trying to do.”

Judge Rejects All Of Kesha’s Claims Against Dr. LukeOn Wednesday, pop star Kesha lost yet another legal battle against her producer and alleged rapist, Dr. Luke. Kesha…thinkprogress.orgEven if Sony wanted to, to borrow a rallying cry from Sebert’s supporters, free Kesha, the company is not really able to do so. Sebert’s contract is with Kemosabe and Gottwald. An attorney for Sony, Scott A. Edelman, described the predicament to the New York Times. “Sony is not in a position to terminate the contractual relationship between Luke and Kesha,” because Sebert has a separate deal with Gottwald’s production company, Kasz Money Inc; it is through that deal that she’s signed to Kemosabe, a Sony imprint. “Sony is doing everything it can to support the artist in these circumstances, but is legally unable to terminate the contract to which it is not a party.”

All Sony could do, if so inclined, is cut ties with Gottwald — free Dr. Luke, essentially — and reports have swirled that Sony may do just that. Gottwald’s contract reportedly runs out in 2017. Sources told the Wrap in March that Sony planned to terminate that contract ahead of schedule; Gottwald’s attorney denied those reports. Or Gottwald and Sebert could settle, which would likely translate to Sebert buying her way out of her contract. In more callous terms, assuming one believes Sebert’s allegations, she would have to pay her rapist for raping her in order to be free from him.