5:28pm PT by Eriq Gardner
Shouldn't Kesha's Fans Really Advocate for Sony to Set Dr. Luke Free?
A New York judge's decision against freeing pop star Kesha from her recording contract continues to generate discussion. Recently, in the ongoing controversy over whether Dr. Luke's alleged sexual abuse necessitates an injunction, much of the heat has been directed toward Sony Music. A good example of the reaction from Kesha supporters is Jessica Goldstein's Think Progress piece titled, "Why Sony Doesn't Want to Let Kesha Out of Her Contract With Her Alleged Abuser."
But Sony keeps insisting, it's not really free to free Kesha. As its attorney Scott Edelman told The New York Times, "Sony has made it possible for Kesha to record without any connection, involvement or interaction with Luke whatsoever, but Sony is not in a position to terminate the contractual relationship between Luke and Kesha.”
Here's the contractual relationship — which, bear with me, is a little complex. Kesha (real name Kesha Rose Sebert) signed a deal in 2005 with Dr. Luke's company Kasz Money, which itself agreed in 2009 to furnish Kesha's services to RCA/Jive, a Sony label. In 2011, Sony and Dr. Luke jointly created a new label call Kemosabe, which was then assigned rights under the 2009 agreement. Kesha assented to this. If you're confused, maybe a graphic (used in the court case) will help:
I wonder whether the "assent" (see here) gives rise to a contractual relationship between Sony and Kesha. But leaving that point aside, Sony's argument is that if the company tells Dr. Luke to cut Kesha loose, it would open itself up to being sued for tortious interference with contract.
Ultimately, thanks to these contracts, it's Dr. Luke that holds the cards on Kesha's fate. Don't take my word for it. Take Kesha's own. Here's what she says in her legal action against Dr. Luke:
"One fact cannot be ignored," states her counterclaims. "Dr. Luke is not just any high-level managerial employee. When it comes to Ms. Sebert, Dr. Luke, through his company, Kasz Money, is the decision maker vis a vis all of the entities."
OK, so let's accept this as true. That doesn't mean Sony can't do anything.
Consider Sony's agreement with Dr. Luke for production services. According to a Nov. 8, 2011 Billboard story, that deal runs five years. Meaning, it's just about to expire — and Sony will have a decision to make about whether it still wants Dr. Luke around as a producer.
Then, there's Kemosabe — the joint venture between Sony and Dr. Luke. The deal establishing this label hasn't been made public, so it's impossible to know what sort of termination, wind-up or buyout provisions exist, but I imagine there are exit options available. (See, for example, how NBCUniversal ended the Miss Universe joint venture with Donald Trump after his inflammatory remarks about Mexicans last year.)
As such, I wonder whether the whole "free Kesha" campaign, at least with respect to Sony, is misplaced. If Kesha alleges that Sony is placing female artists in "physical danger" by either ratifying Dr. Luke's conduct or turning a blind eye, shouldn't Kesha's fans really be advocating for Sony to cut Dr. Luke loose? Freeing Kesha, after all, benefits one individual. Dropping the Doctor arguably benefits many others.
Let me make clear here that I'm hardly taking the position that this should happen. Others can decide for themselves. There are many who see "rape culture" at play here and believe it doesn't matter that Kesha hasn't proven sexual abuse, or that in sworn testimony in 2011, she denied that Dr. Luke ever made sexual advances on her. There's also Sony's stance, as illustrated by an affidavit from Daniel Zucker, executive vp business & legal affairs at RCA, a Sony label group. "If Kesha is allowed to disregard her exclusivity obligations to Kemosabe Records without even alleging a breach of the RCA Recording Agreement, and she proceeds to make records through a competing entity, Sony's credibility within the record industry will be irreparably injured," he says.
This should make clear that regardless of a direct contractual relationship with Kesha, Sony has a stake in the outcome. Zucker adds, "Equally important, allowing Kesha to rebuke her obligations to Kemosabe Records also sends a message to Sony's other existing and potential artists that they may be able to disregard, at will, their contractual obligations."
Let me leave this by discussing contractual obligations.
Kesha made her deal with Dr. Luke in 2005. It's now 11 years later. California has a law that forbids personal services contracts beyond seven years from the beginning of the deal. When it comes to recording contracts, things can get a little complicated on the topic of undelivered albums (see Rita Ora's lawsuit against Roc Nation). Nevertheless, it's somewhat surprising that Kesha's lawyer Mark Geragos didn't attempt to exploit this seven-year rule when Kesha brought her original lawsuit in California. Even in New York, Kesha could have asked the judge to consider California's public policies because she and Dr. Luke were living there at the time the deal was made.
Instead, Geragos attempted to rescind a recording deal through an allegation of physical abuse — which he admitted would be a "first-of-its-kind case." Why? His legal strategy isn't yet convincing a judge. His PR strategy might be finding more favor. Then again, it bares consideration whether the whole "free Kesha" movement is missing the true pressure points.