9:10am PT by Eriq Gardner
Dr. Luke Aims to Ensure He's Getting Cut of Kesha's 'Rainbow' Album
The big moment in the legal dispute between pop star Kesha Rose Sebert and producer Lukasz "Dr. Luke" Gottwald has finally come. After four years in court arising from her allegation of being raped and his allegation that he was smeared in an attempt to renegotiate a record deal, both sides finally made public their summary judgment papers on Thursday night. As a result, thousands of pages of evidentiary exhibits — including contracts, deposition transcripts and private emails — were lodged in a New York court. Naturally, in a legal war that's as much about how each side has attempted to game both the press and legal process as the underlying tale of an alleged sexual assault, attorneys for Kesha and Dr. Luke put out press statements within hours nodding to key elements and highlighting the story each wished to tell.
According to Kesha's camp, she's telling the truth about being given a date rape drug a decade ago and having been sexually assaulted in Dr. Luke's hotel room. She says her account is backed by the fact that she told her best friend at the time that she felt something had happened, five distressing phone calls from that hotel room to her mother and notes by Kesha's therapist a few years later.
Dr. Luke's attorneys, on the other hand, stress how Kesha's managers plotted to destroy Dr. Luke after he wouldn't let her out of a contract, a "press plan" to incite a deluge of negative stories about Dr. Luke and contemporaneous medical reports that allegedly contradict her assertions.
The truth or falsity of what occurred will almost undoubtedly be brought to a jury at trial unless something unforeseen such as a settlement occurs in the coming months. The new court papers have much new to reveal, including that Sony entered into a joint defense agreement with Dr. Luke, a rare peek into the financials of song business hit-making and salacious stuff like Katy Perry affirming she and the producer once kissed while denying any intimate relationship with him.
However, for now, those new details on a well trodden (yet still unsettled) story will be put aside in favor of a look into what each side is specifically asking of New York Supreme Court Justice Jennifer Schecter at this juncture.
On Dr. Luke's end, he targets a text message that Kesha sent Lady Gaga stating Katy Perry "was raped by the same man [Dr. Luke].”
Christine Lepera, attorney for Dr. Luke, wants the judge to rule that her client has satisfied several elements proving a defamatory statement including that the Katy-Perry-was-raped text amounted to a statement of fact, that it was regarding Dr. Luke given that Lady Gaga understood it as such, that it was false given testimony from both Dr. Luke and Perry refuting any rape. Also, that it was defamatory per se (without need for proving special damages) since rape constitutes a serious crime. Even if the judge grants partial summary judgment here, that won't quite end the fuss over this text, as Dr. Luke (assuming he's held to be a public figure) will still need to demonstrate Kesha knew it to be false or recklessly disregarded the truth. That would be something for a jury.
Dr. Luke also targets Rainbow, the Grammy-nominated album that Kesha recorded and released late last year in the heat of the legal battle. Kesha's third album came after she unsuccessfully sought an injunction that would essentially ensure her contractual divorce from Dr. Luke's company. Afterwards, the judge pretty much mediated Dr. Luke to permit Kesha to record for Sony without his involvement.
Kesha has now taken the position that her agreement with Dr. Luke's company Kasz Money has terminated and that it is no longer party to another agreement with RCA, a division of Sony.
Lepera looks to get a judge to rule otherwise by responding that Kesha continues to perform under the agreement with Kasz Money, that Dr. Luke's company paid her a record advance of $150,000 and that the contract only allows Dr. Luke to bow out of the RCA-Kesha relationship at his discretion, not hers. Additionally, Dr. Luke wants interest on late royalty payments from Kesha under a 360 deal where he was entitled to a cut of her merchandise sales.
But back to the defamation claims and the aspects of the summary judgment most likely to break legal ground.
There are dozens of allegedly defamatory statements at issue in this case and most entail stuff that Kesha didn't directly say. Instead, Dr. Luke has targeted the way that Kesha's former lawyer Mark Geragos and her publicists at Sunshine Sachs repeated the rape assertions in the press through circulation of a draft version of her original lawsuit and then further comments.
Dr. Luke argues that these statements were made in the capacity as Kesha's agents and asks the judge to rule as such.
"There is no dispute that Defendant gave her consent for Geragos to act on her behalf, and file the Sham Complaint," writes Lepera. "Geragos’ press activities associated therewith both before and after filing the Sham Complaint were, of course, encouraged and promoted by Defendant and her management. The undisputed facts in this case make clear that Defendant can in no way claim that these activities were not, at an absolute minimum, generally foreseeable."
Dr. Luke further contends that Kesha has ratified those statements.
Meanwhile, Kesha takes the opposite position when it comes to statements from her mother Pebe as well as Michael Eisele, the then-17-year-old Kesha fan that started the "Free Kesha" movement on social media.
"Kesha cannot be held liable for Pebe's and Mr. Eisele's statements," writes her lawyers at O'Melveny & Myers. "The undisputed record is that Kesha neither authorized nor directed 14 statements made by Pebe and Mr. Eisele... In fact, it is undisputed that Kesha did not even know about the statements before they were made."
Beyond the issue of agency, there is also a determination coming on what is outside the statute of limitations, what constitutes non-actionable opinion, and finally, what is privileged.
On the latter topic, Kesha's lawyers argue that the pre-filed draft complaint provided to both Sony's general counsel in settlement negotiations and TMZ under embargo were both in anticipation of litigation and pertinent to the litigation. They contend that as such, statements arising from the dissemination of the draft complaint are not liable because they "reflect Kesha's or her attorneys' fair and true report of case background and litigation developments."
Dr. Luke argues otherwise and points to the judge's earlier ruling allowing an amended complaint that “a trier of fact could possibly conclude that the California complaint was a sham maliciously filed solely to defame plaintiffs as part of [Defendant’s] alleged campaign to destroy Gottwald as leverage to renegotiate her contracts.”
Kesha's lawyers are sticking to their guns that there's nothing unusual about leaking a copy of a complaint to a reporter before filing and that the so-called "sham litigation" position is attorney-manufactured nonsense. To hold otherwise, they say, contravenes a policy recognizing the importance of reporting on judicial proceedings and an encouragement on candor. They add, "That danger is of particular concern in cases where — as here — a woman dares come forward to assert sexual-assault allegations against a man in a position of substantial power. With regard to the California litigation, Kesha did everything she could to pursue her claims before a court that ultimately rejected her forum-selection arguments. Kesha's New York claims were dismissed over her vigorous objection. Since then, Kesha has incurred substantial fees and costs forcefully defending the truth of her statements."