Why can’t Kesha get out of her contract?
On Friday, New York Supreme Court Justice Shirley Kornreich declined to grant Kesha Rose Sebert a preliminary injunction that would liberate her from her contract with Lukasz “Dr. Luke” Gottwald, Gottwald’s Kemosabe Records, and Sony Music Entertainment. Sebert signed a six album deal and, depending on how you tally Cannibal, an EP, she has either three or four albums left to go.
Sebert has been trying to get out of her contract with Sony since 2014; she alleges she suffered years of rape and abuse, as well as unfair business proceedings, by Gottwald. She says Gottwald’s pattern of assault nearly killed her; she developed an eating disorder and spent two months in rehab in early 2014. Her fear of Gottwald, she says, and the tremendous control he exerted over her career and her life, kept her from speaking out or seeking criminal charges. Gottwald denies all allegations and claims that Sebert is lying because she wants out of a contract she doesn’t like. And on Monday, Gottwald’s lawyer released a statement: “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.”
I didn’t rape Kesha and I have never had sex with her. Kesha and I were friends for many years and she was like my little sister.
— Dr. Luke Doctor Luke (@TheDoctorLuke) February 22, 2016
Kornreich was apparently unmoved by Sebert’s plea. “You’re asking the court to decimate a contract that was heavily negotiated and typical for the industry,” she said. “My instinct is to do the commercially reasonable thing” and uphold the existing contract. Kornreich told Sebert that the fact that Gottwald invested $60 million in Sebert’s career and was willing to let her record outside of his purview “decimates your argument.”
The judge’s ruling reads as particularly callous considering what Kesha alleges she’s been through and her purported reasons for wanting an escape strategy from what she describes as a horrifying, untenable situation.
Even if, as Sony representatives promise, Sebert could continue to record without Gottwald’s personal involvement, Sebert’s work would still benefit him. (If Sony is allowing her to record outside of Gottwald’s Kemosabe imprint but still under the Sony umbrella, they haven’t made that clear to the public; if she stays in Kemosabe, Gottwald will get a cut of whatever profits she rakes in.) And even if Sony allows her to record outside of Kemosabe, if Sebert’s claims are true — that Gottwald’s “proclivity for abusive conduct was open and obvious” to Sony execs, but they proceeded to either ignore or enable it — being trapped in her contract would still entail working for and alongside with people who facilitated that abuse. In her suit from last year, Sebert asserts 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.”
The public perception is: A woman is being victimized twice.
“I probably had the same reaction to this ruling that many women did in the music industry, which was one of surprise and disappointment,” said Beverly Keel, Recording Industry department chair at Middle Tennessee State University and music columnist for the Tennessean. “The music industry is still largely a man’s world. I was surprised with the court’s ruling. It doesn’t make common sense. Common sense says, a woman should not be bound to work with someone whom she alleges sexually assaulted or harassed her… And I understand this is a preliminary hearing but it’s just another blow to women on a national level during a time when there is so much bad news about women and sexual assault.”
Yet even Sebert’s team acknowledged in their initial motion that the case was not about whether or not Gottwald was a rapist. “The task for the Court on this Motion is not to resolve whether Kesha is right or Dr. Luke is right about the abuse. It is simply to allow Kesha to record (even for Sony) without having to work with Dr. Luke and his affiliated companies.”
From a legal perspective, the ruling is a small one: All Kornreich ruled, really, is that Sebert would not be protected from legal action should she opt to release music outside of the confines of her Sony contract while the rest of the case plays out.
Still, “The public perception is: A woman is being victimized twice. First the assault, and now being forced to remain in the position in which she was victimized in the first place,” said Keel. “Women felt this week’s ruling. It was personal to women who heard this news. It’s a much bigger deal than just Kesha and Sony. It was proof, again, that too often in our society, the men are protected while the female victims are exploited over and over.”
“I would suggest that the issue of rape is not at the core of what this judge is having to decide,” said Deborah Wagnon, attorney and associate professor specializing in recording industry legal issues in the College of Media and Entertainment at Middle Tennessee State University. “She’s being handed a contract that was negotiated with two parties, and there’s no place in it for her to be the judge and jury of ‘was this woman raped?’ So what she’s got to work with is what’s there, and what’s enforceable. And it is absolutely skewed in terms of power, and has traditionally been… It’s an issue of power and control. And that relates, initially, to who has the money.”
The judge “wasn’t convinced that Kesha’s career would be irreparably damaged unless the court granted the injunction,” said Suzanne Kessler, entertainment attorney, adjunct professor at Vanderbilt Law School, and former in-house attorney at A&M; Records and Universal Music Group. “That, I think, is the threshold the judge was using, along with, that this was heavily negotiated, negotiated at arm’s length — in other words, she was represented by counsel, Sony had in-house counsel, and the two parties had a meeting of the minds… They went back and forth until they got to the point that they said: This was the contract we’re going to sign now.”
“Within the contractual language of her recording agreement,” Wagnon said, allowing that she had not personally read Sebert’s contract, “there probably was no basis to terminate it.”
The record label is, technically, “not in breach” of contract, said Wagnon, “and that’s the problem that Kesha is having. So there’s not really a mechanism, in contract law, for her to address what she’s trying to do.” Sebert’s lawyer, Mark Geragos, told Billboard that he couldn’t think of any precedent for what Sebert was hoping to do — be freed from a contract because of physical abuse — and called Sebert’s lawsuit a “first-of-its-kind case.”
That’s the problem that Kesha is having. There’s not really a mechanism, in contract law, for her to address what she’s trying to do.
For comparison, Wagnon cited George Michael’s efforts to get out of his Sony contract back in 1994; his contract bound him to Sony for eight albums, up to 15 years, a situation Michael described as “professional slavery.” But the High Court in London sided with Sony, calling the contract “reasonable and fair.” Sebert is, in a way, in a similar dynamic: She’s not saying Sony violated the contract but that the contract should be voided. “She’s in a very tough position here.”
What the judge has to worry about, Wagnon said, is “establishing a dangerous precedent. At the time of the George Michael case, the labels were terrified that if an artist can get out of a deal because they’re ‘unhappy,’ that will lay the framework and be a precedent for other artists to follow. So there was a collective sigh among the labels [when Sony won].”
Kessler offered a hypothetical: Say Sebert goes into the studio and records an album that costs half a million dollars to produce. “The label fronts all that money for the recording costs, and it’s recouperable against the artist — the artist won’t start seeing royalties until the costs are recouped — and if the artist never makes a dime, the record label is in the hole for half a million. So the label’s rationale is, part of the reason why these recording agreements are seemingly to the advantage of the label in certain instances is because the label is taking all the risk financially.”
It’s telling, though, that there isn’t that same parallel protection for the artist, who is arguably taking an equal, if difficult-to-quantify, risk: A personal, creative, and, in Sebert’s alleged case, physical one.
The music industry is still dominated by middle-aged men; fair to say the average pop star starts her career as a teenage girl. (See: Sebert, Taylor Swift, Selena Gomez, Beyoncé, Adele, Lorde, Katy Perry, Ariana Grande, Rihanna, Britney Spears, Miley Cyrus, and Demi Lovato, just to name a dozen.) In pop, then, it’s often a young woman taking all the emotional, artistic risk — the human side of the equation — but her recording contract will likely be structured to protect the interests of the fleet of grown men whose risk is purely financial?
“Yes,” said Kessler. “That is, in many ways, a description of the history of the music industry.”
How did Sebert wind up in such a restrictive contract in the first place? Sebert’s contract, from everything that’s been made public about it from court documents, protects the label far more than it protects her as an artist. Which is to say, it is pretty standard for a recording contract.
Some context: “Major label record deals are much more scarce than they used to be,” Kessler said. The good news is that there are more opportunities for distribution than ever: Post your latest work on YouTube or SoundCloud, share your single in a series of Snapchats and your video in Vines. The bad news is, the opportunities to sign with major labels like Sony have all but evaporated. As Grammy viewers were lectured about just last week, “The profit margins for digital music are smaller for both the artist and the labels,” said Kessler. You’ve heard this song before: Digital sales and streaming are outpacing physical sales, a tectonic shift in how the masses consume music that not even vinyl-buying millennials can counteract.
This means that, should someone in the position Sebert found herself in as a teenager in 2008 — with the chance to sign with Sony, a rare get for a singer-songwriter hoping to break into the business — she would, more likely than not, have next-to-no leverage in those negotiations and accept whatever she could get.
Sebert was signed to a six-album deal, her rise as a pop star coinciding with the rise of digital streaming. “That’s the kind of deal that is just too long in today’s music industry,” said Catherine Moore, clinical associate professor of music business at New York University Steinhardt School of Culture, Education, and Human Development. “It’s a singles business… The fact that it’s measured in albums really doesn’t make sense for either side.”
Kessler disagreed. “A six-album deal is not that unusual,” she said, and the label has the option to pick the artist up, or drop the artist, at every subsequent album. The artist, however, is in it for the long haul, unless they get dumped first.
Are there typically any loopholes for an artist to get out of a contract early? There’s usually a “force majeure or Act of God clause,” Kessler said, liberating the artist from meeting obligations when natural circumstances beyond his or control made meeting those obligations impossible (e.g. wars, strikes, hurricanes, any of your Passover plagues). Recording contracts also tend to have language in place “in case the artist gets sick and something happens to his or her voice, and that physical ailment is not cured within a certain amount of time.”
So, emergency exists do exist — more powerful artists get more of them — but as a general rule, they are small and rare.
From the outside, where it looks like the internet is just a sea of #FreeKesha comments and donations from the likes of Taylor Swift to aid Sebert during these “trying times,” it seems like the savviest move on Sony’s part would be to walk away. Why fight so hard to keep an artist who is fighting this hard to get out?
While it might seem like Sebert wasn’t a huge artist, on the cause-all-this-conversation scale of someone like Beyoncé or Adele, in the grand scheme of pop music, her status is still that of a platinum-selling artist who makes her label a lot of money. Think of that as “the jumping off point for why, in this case, Sony music and Dr. Luke, whose imprint is a Sony music company, would be reluctant to allow a successful artist out of a contract,” said Kessler.
“The bottom line is, the major labels invest so much money in breaking a new artist that they’re reluctant to break a contract with an artist because they want to make their investment back and then some,” she continued. “So when an artist like Kesha is signed to a six-album deal and has recorded just two albums so far under that deal, Sony is thinking two things, as is Dr. Luke: There’s more money to be made here, and we need to make back our money and then some in this business deal.” But as the emotional public response to Sebert’s plight demonstrates, this is a case where the contract isn’t really about the contract, just like the Bill Cosby civil defamation cases aren’t really about defamation. A civil suit is a stand-in for a criminal act that either can’t be, or isn’t being, pursued. It’s all a proxy for a rape case, in Sebert’s situation because she has elected, for the time being, not to seek criminal charges (most victims of sexual assault make the same decision), and in Cosby’s accusers’ because, for all but one, the statute of limitations has run out.
The alleged abuse and the contract are “connected, because it’s the same people,” Moore said. But in this particular case, Sebert’s stated goal is to have “a commercially successful musical career,” which means the question on the table is, “How can she achieve that?”
If Kesha’s claims are accurate, then I would say it’s impossible for Kesha to ever even want to step foot in that building again, much less record for them.
If there’s anything from Sebert’s side that makes the least amount of sense, it’s her argument that Sony would intentionally bury whatever records she ultimately produces for them, out of spite, hate, or some kind of loyalty to Gottwald over her. (Her representation calls Sony’s pledge to support whatever music Sebert records there an “illusory promise.”) But if Sony is this hellbent on not losing Sebert’s work — work in which they’ve already invested a significant amount of money — it is totally illogical to assume they wouldn’t do everything within their power to make Sebert’s music succeed. They have nothing to gain if she, as a financial and creative investment, fails.
“One of the positives in this is that it’s clear Sony still sees potential in Kesha’s recording,” said Moore. Sony could “conclude, for PR reasons, the simplest thing is for us to say ‘never mind, let’s release you from the contract.’ But Sony clearly believes there’s good potential in future earnings from Kesha, which probably means when the new record comes out they’ll promote it. “
“It’s a real possibility that they could just voluntarily settle and part ways,” Kessler said. Should Sony demand an album and Sebert refused to comply, they could try to sue her for damages. Kessler doubts that will happen, though, “because labels would rarely want to sue one of their artists. It looks bad for them, it wastes a lot of time and money, and look how these situations play out in the public. And then it starts affecting other artists on their roster. You see the groundswell of support for Kesha coming from her peers.”
If Sony, Gottwald, and Sebert agree to settle, Sebert will have to buy her way out of her contract. Though to mere mortals, Swift’s gift of $250,000 sounds like a lot of money, it’ll barely make a dent in what Sebert owes against the four or so albums she hasn’t recorded. And if one believes Sebert’s allegations against Gottwald, you could read that outcome as a particularly devastating one: She would basically be paying her abuser for raping her.
Wagnon isn’t convinced that Sony is concerned, at all, about the bad PR. “This is the same parent company that owns Sony Pictures, that just went through its hacker issues last year. So it’s not a highly-sensitive human that you’re worried about, as to whether Sony is overly concerned that people are mad at it. Corporations have a certain sociopathic quality to them… There’s no person. It’s an it. It can fire everyone in the joint and still live on. The artist is a person, so you have an entity in a position of control over a human whose whole world is about their art and those services. It’s very inequitable.”
Will this case, and the publicity its received, change the way recording contracts are written? “If it is, I will applaud and yell hooray!,” said Wagnon. “But I doubt it. Because record deals resist change.”
One potential change for the better is that Sebert’s case “gives young female artists an awareness that perhaps didn’t even exist a year ago, that someone with whom they so trusted with their career could abuse them in some way,” said Keel. “So maybe they will ask their attorneys, in the future, to put a clause in the contract to help them escape should this situation arise.”
“If Kesha’s claims are accurate,” said Keel. “Then I would say it’s impossible for Kesha to ever even want to step foot in that building again, much less record for them.”