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Pop star Kesha is winning a public relations battle against her record
label, Sony, as well as her producer, Dr. Luke, who she accuses of rape. Adele,
Taylor Swift, Kelly Clarkson and Janelle Monae have all publicly expressed
support, and #FreeKesha has been trending on social media, reflecting
massive backing from fans and other observers.
It’s an old tale—young, female singer controlled and abused by an older
Svengali industry insider. It resonates because so many women in so many
industries have been sexually
harassed or assaulted. If a
(presumably) rich and famous star like Kesha can’t get justice, who can?
Courtroom setback
But she appears to be losing the legal war. Kesha claims Dr. Luke, with
whom she signed as an unknown talent in 2005, demeaned, drugged and raped her
for years. In 2014 the singer sued, looking to get out of the contract that
still requires her to produce three more records. She doesn’t want to work with
her alleged abuser, and she believed that Sony would fail to promote her work
if she worked with other Sony producers, torpedoing her career.
Last week, a New York judge denied her request for a preliminary
injunction—an early pretrial order – allowing her out of the contract while the
case inches toward trial. Judge Shirley Kornreich said that Kesha was “asking
the court to decimate a contract that was heavily negotiated and typical for
the industry.” Upholding the contract, she ruled, was “the commercially
reasonable thing.” After all, Dr. Luke and Sony had invested $60 million in
Kesha’s career, and Sony was willing to let her record without Dr. Luke’s
direct involvement, which the judge found “decimates
your argument.” Kesha lost the motion.
It’s important to understand that preliminary injunction motions are tough
to win in general. The legal bar is high, because we’d prefer judges to resolve
issues at trial, where evidence and witnesses can be reviewed, not at the
beginning of a case, before the parties have gone through discovery (when
information is exchanged). She was required to prove “irreparable injury,” and
speculation that Sony might not promote her was insufficient.
While the judge has been portrayed as callous to Kesha’s claims of sexual
assault, her own lawyer conceded that the motion was not about whether Dr. Luke
was a rapist or not. Instead, it was about the commercial issue as to whether
she could record elsewhere while the case was pending. Kesha’s legal team just
did not present sufficient evidence to meet the legal threshold to grant the
motion, the judge found.
If Kesha’s attorneys are able to bring forth evidence and witnesses, they
could still win the case at trial. But this early ruling is a strong indication
that the judge is leaning toward Sony and Dr. Luke in the case, and at least
for now, she expects Kesha to continue to record with Sony. (Dr. Luke
presumably would still profit from her work, as other producers would report to
him at his Sony-owned labels.)
Unsealed video undercuts claims
And now there’s another problem for Kesha and her legal team: a 2011
deposition video from another case was
released this week, showing Kesha denying an
“intimate relationship” with Dr. Luke. Rape is not an intimate relationship, so
that’s not much of a concern. But she also denies that he made “sexual
advances.” That’s a closer question.
Also in the 2011 video, she denies that he “roofied” her, which is one of
the accusations in the more current claim. Kesha’s mother also denied at a
deposition that Kesha told her of any inappropriate behavior from Dr. Luke—no
sex, no drugs.
The video is heavily edited. Nevertheless, if Kesha denied drugging or sex
with Dr. Luke in her deposition, unedited and in context, that would be another
legal blow to her current case. Rape victims typically do not report the crime
to authorities, as Kesha did not, and they don’t disclose the rape until they
are ready. But in court, a prior sworn statement denying the same claims being
asserted now—after only a few years—is devastating.
We only have a glimpse into the case via this early motion, and a lot can
happen between now and the trial—including a settlement, which is how most
cases end.
It’s important to line up evidence, including medical and therapy records,
witnesses, texts, emails etc, before filing a sexual assault case. I encourage
some of my clients to go to law enforcement, which can authorize them to record
conversations in which the perpetrator may make admissions. All the evidence
must be carefully analyzed and considered together before filing, especially
against a giant company like Sony. Perhaps that was done in this case, but the
judge apparently did not see any evidence to support Kesha’s claims yet, which
is a concern.
The outpouring of love for Kesha is heartening, regardless of the outcome
of her case. Sony would be smart to get past this public relations nightmare by
resolving the case quickly, on terms everyone can live with.
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