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The clock is “TiK ToK”ing and still no success

Music artist Kesha faces hurdle after hurdle in her attempt to bring charges against her producer and alleged rapist Dr. Luke.

Photo: Kesha and producer Dr. Luke, Vibe (Courtesy of Google Images)

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There is a tired, old phrase about being stuck between a rock and a hard place; having two options, both of which are absolute shit.  Damned if you do and damned if you don’t.  It is a phrase used all too often in situations which don’t deserve it.  Kesha’s is not one of those situations.  Stuck between creating music to the profit of her alleged rapist or silently fading into irrelevance, musical artist Kesha chose the option that kept her in the fight.

Kesha filed a civil action against Dr. Luke alleging sexual assault and battery, sexual harassment, and both the intentional and negligent infliction of emotional distress.

Kesha Rose Sebert, a Nashville native, dropped out of high school and moved to Los Angeles when she was just 18-years-old.  She signed with Kemosabe Records in 2005 and first caught America’s attention in 2009 with her hook in Flo Rida’s “Right Round.”  Her debut album Animal released in 2010, followed by Warrior in 2012.  The two pop albums placed Kesha among the music industry’s most popular draws.

On her way to her third album, Kesha’s rise to stardom seemed unstoppable.  She was the new Britney Spears, but without the front of innocence.  She was bad, and everyone loved it.  Behind the scenes, though, Kesha was struggling.  Battling an eating disorder, allegedly the product of years of abuse by her producer, Dr. Luke, Kesha decided to try to sever that relationship.

Kesha filed a civil action against Dr. Luke on October 14, 2014, in the Superior Court of the State of California for the County of Los Angeles – Central Division.  The complaint alleged eight causes of action, including sexual assault and battery, sexual harassment, and both the intentional and negligent infliction of emotional distress.  Kesha listed Lukasz Gottwald (a.k.a. Dr. Luke), Kasz Money, Inc. (KMI), Prescription Songs, LLC, Kemosabe Entertainment, LLC, and Kemosabe Records, LLC, as defendants in the action.  These entities all lie under Sony Music Entertainment.

Kesha alleges that upon arriving to Los Angeles, Dr. Luke began to sexually, physically, and verbally assault her.  On one occasion, Dr. Luke allegedly forced Kesha to snort an illicit drug before a flight.  Once on the plane, Dr. Luke supposedly forced himself onto Kesha while she was intoxicated and drugged.  Kesha claims she became ill and vomited during the flight.

On another occasion, Dr. Luke allegedly forced Kesha to drink with him, making her take “sober pills” to sober her up.  Kesha claims she woke up the next morning, naked, in Dr. Luke’s bed, “sore and sick, with no memory of how she got there.”  Over a decade, Dr. Luke allegedly continued this type of abuse, threatening to ruin Kesha’s career and her family if she ever mentioned the rape to anyone.  This abuse became a constant in Kesha’s life, leading her to believe she deserved this treatment.

Dr. Luke responded to the complaint with a lawsuit of his own on the same day.  This civil action, filed in the Supreme Court of the State of New York – County of New York, alleges defamation against Kesha and her mother, Pebe Sebert, breach of contract against Kesha, and tortious interference with contractual relations against Pebe Sebert, Vector Management, LLC, and Jack Rovner.

Judge Scheper found that there was no evidence to support this claim.  With Kesha’s California lawsuit frozen, Dr. Luke’s New York lawsuit could continue.

Kesha and Dr. Luke entered into an exclusive recording agreement (the Gottwald Recording Agreement) on September 26, 2005.  Per Dr. Luke, Kesha entered into an agreement with Vector Management and its President, Rovner, in 2013, violating the Gottwald agreement.  Dr. Luke claims that shortly after entering into an agreement with Vector and Rovner, Kesha began trying to get out of the Gottwald Recording Agreement.  Dr. Luke further alleged that in Kesha’s attempt to distance herself from the Gottwald agreement, she and her mother waged a defamatory campaign against the record producer.  Dr. Luke believes this campaign is an attempt to extort him and have him release Kesha from her contractual duties per the Gottwald Recording Agreement.  Dr. Luke also denies all of Kesha’s allegations.

Kesha’s California lawsuit was frozen in June 2015.  Los Angeles Superior Court Judge Barbara Scheper found that Kesha’s contract disputes had to be resolved in New York per a forum clause in the recording agreement.  Kesha argued that the agreement with the forum clause was not entered into freely, and thus, could not be enforced.  Judge Scheper found that there was no evidence to support this claim.  With Kesha’s California lawsuit frozen, Dr. Luke’s New York lawsuit could continue.  Kesha then filed several counterclaims in this action, mirroring the claims made in her California lawsuit.

One of Kesha’s prayers for relief requested an injunction be granted to “void Plaintiff’s current recording agreements with Kasz Money, Inc. and Kemosabe Records, LLC, and her publishing agreement with Prescription Songs, LLC, in order to prevent Defendants from further engaging in abuse, violence, harassment, and exploitation.”  If granted, this would have allowed Kesha to enter into recording contracts with other publishing companies;  however, New York Supreme Court Justice Shirley Hornreich denied the request for injunctive relief in February 2016, stating she would not “decimate a contract that was heavily negotiated and typical for the industry.”

Two months later, in April 2016, Judge Hornreich dismissed all of Kesha’s claims against Dr. Luke, save the breach of contract claim.  Judge Hornreich decided that she would not hear some of the claims for lack of jurisdiction.  Judge Hornreich stated, in regard to Kesha’s gender violence claim, that she did not feel Dr. Luke had directed gender-based hatred toward Kesha and, therefore, could not have committed a hate-based crime against her.  Judge Hornreich also stated that Kesha’s claims of physical and sexual abuse could not be sustained without proof of physical damages.  Last, Judge Hornreich dismissed Kesha’s claims that Dr. Luke mentally tormented her, stating that insulting someone’s artistic value and physical appearance are insufficient to constitute extreme and outrageous conduct.  Several months after her April 2016 defeat, Kesha dropped her California lawsuit against Dr. Luke.

Gottwald produced documents showing that Kesha owed him and the recording companies over $1 million in royalties.

With her California lawsuit gone, Kesha decided she would still focus on her appeals in New York for the claims that were dismissed.  With only her breach of contract claim remaining against Dr. Luke, Kesha sought to amend her counterclaim.  Judge Hornreich shot this attempt down as well, denying her motion to amend on March 21, 2017.  Kesha’s amended complaint, if permitted, would have alleged five claims: (1) that Gottwald breached the KMI agreement by failing to pay royalties; (2) that Gottwald breached the Prescription agreement by failing to pay royalties; and (3) that Gottwald breached a covenant of good faith and fair dealing.  She sought declaratory judgments which would declare her contracts with Gottwald and his recording companies terminated.

Again, Judge Hornreich dealt another blow to Kesha.  In her order, Judge Hornreich cited several First Circuit cases which held that a motion to amend should be denied where it lacks merit as a matter of law.  The two breach of contract claims were found to be meritless when Gottwald produced documents showing that Kesha owed him and the recording companies over $1 million in royalties.  Kesha made no showing to the contrary.  Additionally, the Prescription Agreement required an aggrieved party to give notice to the other party as a condition precedent for a claim of breach.  Kesha showed neither impracticability nor impossibility as to why she did not give the required notice.  The covenant of good faith and fair dealing claim also failed because Kesha did not provide notice.  In other words, it seems Kesha did not notify her alleged rapist that he was, indeed, a rapist.

Kesha released her first solo track in 4 years on July 6.  Kesha is still contractually obligated to create music to be produced by Dr. Luke and his record companies.  Sony Entertainment has mostly remained quiet.  4 years of losing legal battle after legal battle landed Kesha between a rock and a hard place.  She decided to create music again, despite the fact it would benefit Dr. Luke.  That does not mean Kesha has lost.  While Dr. Luke may benefit in the short term, Kesha’s return and warrior mentality are bound to create hell for him in the long run.  Quoting her new single, “the best is yet to come.”

Blake Drewry
About Blake Drewry (13 Articles)
Blake Drewry is a third year law student and serves as an Associate Editor for the Campbell Law Observer. Originally from Courtland, Virginia, Blake received his undergraduate degree from East Carolina University where he majored in Political Science and Philosophy. His legal interests include local government law, land use and zoning law, and sports law. The summer after his 1L year, he worked for the General Counsel at the North Carolina Department of Agriculture. This past summer he worked at the Federal Public Defender’s Office for the Eastern District of North Carolina.