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Update 4/7/16: On Kesha, Dr. Luke, And Sony

An entertainment lawyer weighs in on the legal battle that has become an industry firestorm.

Update 4/7/16: On Kesha, Dr. Luke, And Sony
[Photo: Flickr user Ed Rhee]

UPDATE (4/7/16): A New York Supreme Court judge has dismissed Kesha’s counterclaims against Dr. Luke, dealing a major blow to the singers’s long battle against the producer and music label Sony. Judge Shirley Kornreich ruled that Kesha’s claims are either out of the statue of limitations or don’t substantiate the alleged crime. "Given the lack of evidence, previously sworn statements, lapse of time and the requirements to make a successful hate claim in [New York State], the ruling is wholly unsurprising," says Domenic Romano, managing attorney at Romano Law. The ruling follows a recent claim on Instagram from Kesha that she was offered contractual freedom if she publicly apologized and said she was never raped. "THIS IS WHAT HAPPENS behind closed doors," she says in the post. "I will not take back the TRUTH. I would rather let the truth ruin my career than lie for a monster ever again."

UPDATE (3/9/16): Sony Music will drop Dr. Luke in the wake of the rape allegations Kesha made against the producer, according to "knowledgeable individuals" who spoke with The Wrap. The contract for Dr. Luke, who runs the Sony Music imprint Kemosabe Records, was set to expire next year, but it seems as if the execs at Sony are attempting damage control amid the boycotts and PR firestorm ignited by Kesha’s fans and fellow high-profile artists. "There is no contest. Kesha has no case in regards to her contract but they can’t afford the Adeles of the world out in the streets calling the label unsupportive," says an individual affiliated with Sony’s upper management.

Kesha’s ongoing legal woes against producer Dr. Luke hit a snag last Friday when New York Supreme Court Justice Shirley Kornreich denied a preliminary injunction filed by the singer to be released from her contract under Dr. Luke’s label Kemosabe Records, an imprint of Sony Music.

Kesha (née Kesha Rose Sebert) claims that Dr. Luke (né Lukasz Gottwald) verbally, emotionally, and sexually assaulted her over their 10-year working relationship. Dr. Luke is denying the allegations and has filed his own lawsuit against Kesha for defamation and breach of contract. It’s a PR disaster for Sony, a legal migraine for Dr. Luke, and an emotionally crippling saga for Kesha that needs a bit of unpacking.

2005: At 18, Kesha signs with Dr. Luke after he convinces her to drop out of high school in Nashville and move to Los Angeles.

2006: Kesha, allegedly feeling somewhat neglected by Dr. Luke following his recent success co-producing Kelly Clarkson’s 2004 album Breakaway, signs a management deal with DAS Communications, which is in conflict with her contract under Dr. Luke.

2008: Over two years of legal back-and-forth, Kesha is in talks to sign with Warner Music under DAS’s guidance, only to have Dr. Luke allegedly induce Kesha to breach her contract with DAS. Kesha’s legal counsel sends DAS a termination letter, which DAS rejects.

2010: Kesha releases her debut album Animal, executive-produced by Dr. Luke, under Sony.

2011: In a deposition pertaining to a lawsuit with DAS, Kesha states that Dr. Luke did not give her a roofie and denies that she "ever had an intimate relationship" with him. Kesha’s mother, Pebe Sebert, also gives a deposition, stating she was "unaware" of any kind of sexual encounters between her daughter and Dr. Luke. Both depositions allude to implied sexual assault and/or misconduct around 2006 by Dr. Luke toward Kesha, although no legal action had taken place.

2012: Kesha’s sophomore album Warrior is released, also executive-produced Dr. Luke. Grumblings among Kesha’s fans begin to circulate that Dr. Luke is stifling Kesha’s creativity, forcing her to produce the same pop songs and not allowing her to explore other genres like rock-and-roll or country.

2013: An online petition to "Free Kesha" is launched by her fans to liberate her from Dr. Luke. Two unreleased demo tracks—"First Love" and "Dirty Liar"—are released in conjunction with the petition that show Kesha’s adaptability to new genres. Pebe Sebert allegedly sends Dr. Luke’s lawyer an email threatening to expose Kesha’s rape allegations against him if he doesn’t release her from her contract.

2014: Kesha files a lawsuit against Dr. Luke, claiming, among other allegations, that he called her a "fat fucking refrigerator," forced her to snort illicit drugs, and gave "sober pills," which Kesha says were really gamma-hydroxybutyrate, i.e. date rape drugs. In one particularly distressing passage in the lawsuit, Kesha’s counsel reports: "Ms. Sebert took the pills and woke up the following afternoon, naked in Dr. Luke's bed, sore and sick, with no memory of how she got there. Ms. Sebert immediately called her mother and made a 'fresh complaint,' telling her that she was naked in Dr. Luke's hotel room, she did not know where the clothes were, that Dr. Luke had raped her, and that she needed to go to the emergency room."

The presiding judge agrees to unseal pages from the 2011 deposition. Kesha’s attorney Mark Geragos claims his client made those seemingly contradictory statements back then because Dr. Luke threatened financial ruin if Kesha ever came forward.

2016: Justice Shirley Kornreich denies Kesha’s request for an injunction, stating that it would irresponsible "to decimate a contract that was heavily negotiated and typical for the industry." Kesha’s six-album contract under Sony is still in effect, but she was granted permission to work with producers other than Dr. Luke. However, Kesha’s lawyer is expressing doubt that Sony will promote any new music from Kesha.

Since the judge’s ruling on Friday, artists have been voicing their support for Kesha, including Ariana Grande, Lorde, Lady Gaga, and Demi Lovato. Taylor Swift has even donated $250,000 to Kesha to aid in legal fees and Lena Dunham penned a long defense of Kesha in her "Lenny" newsletter.

Dr. Luke issued a series of tweets Monday, disputing all the allegations brought against him.


Kesha Fans Protest Sony Music Outside New York State Supreme CourtPhoto: Roy Rochlin, Getty Images

As public pressure on Sony and Dr. Luke continues to mount to a vitriolic pitch, one very important question seems to be getting lost in the mix: Legally speaking, does Kesha have a chance to get what she wants?

As unfortunate as it may seem, not really.

"It’s hard to remember with all the rhetoric flying around that this is really a contract case," says Domenic Romano, managing attorney at Romano Law. "So a judge cannot grant a preliminary injunction without evidence. When [judges] decide these things it sets precedent. In this case, allowing people to get out of contracts on mere allegations that aren’t substantiated by any kind of additional evidence. Not only are we not seeing evidence, we’re seeing contradiction from the plaintiff and her mother of what allegedly happened."

Rape allegations are, of course, an extraordinarily delicate matter, and no one wants to victim shame Kesha for not coming forward sooner or not producing hospital records. But, as Romano points out, the judge isn’t making public policy with this case.

"She’s ruling on whether or not there’s enough evidence to issue a preliminary injunction—something that’s rarely granted," Romano says. "We want to live in a safer society for women, and we want women to be able to come forward even years later. As we’ve seen in the Cosby case, scores of women coming forward decades later with corroborate evidence, that’s one thing. But this isn’t a rape case."

In the eyes of the law, this may not be a rape case, but in the court of public opinion, it seems that’s what it all boils down to. The #FreeKesha movement exploded with support from high-profile artists—artists with millions upon millions of followers deep. It’s highly unlikely that stars like Lady Gaga, Lorde, and Demi Lovato tweeting in support of Kesha will make any kind of dent in the legal case or even cause a financial hiccup for a behemoth like Sony in the long-run. However, in the here and now, the massive social media power play underway is tarnishing Sony’s brand: More than 240,000 supporters have signed a Change.org petition boycotting Sony products in reaction to Friday’s ruling.

As supportive as her fans and fellow artists have been, Kesha is still enmeshed in a legal snarl that could possibly kill her career. In Romano’s opinion, the best option for Kesha at this point would be to settle.

"They reach a negotiated settlement, which might look like delivering fewer albums but agreeing on a strategy for promotion of those albums. And time is of the essence for both sides because just as her career starts to diminish, so too for the label and the producer that’s invested so much money. It’s in everyone’s interest to come up with some sort of agreement, otherwise this could drag on for at least a year or two," Romano says. "It doesn’t mean that Kesha might not win [her current case]—no one is saying that she can’t go to the authorities and file a report even after the fact and bring some evidence to the authorities. But it hasn’t happened."

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