March 10, 2016


Kesha May Have an 'Uphill Battle' Against Dr. Luke: A Legal Expert Weighs In

Raymond Hall/GC Images
Raymond Hall/GC Images

It's no secret that Kesha's trial with producer Lukasz “Dr. Luke” Gottwald (who she claims physically, verbally and sexually abused her for years) has caught the attention of the media. From various #FreeKesha protests to artists like Lady Gaga and Adele publicly supporting the singer, the legal battle has sparked feelings of outrage, suspicion and confusion. But once you strip the case from its celebrity foil and turn away from the Twitter reactions, what is truly going on in the court of law?

To try and parse through the latest Kesha news, we talked to Oved and Oved LLP's litigation chairman Darren Oved, who has worked on deals with clients including Tiësto and Rebecca Minkoff. Oved spoke to Fuse about the Kesha trial, including the possible effect of the judge's injunction denial, the public outcry in support of Kesha and what he thinks the outcome may be.

FUSE: Kelly Clarkson recently made a statement that her record label blackmailed her into recording with Dr. Luke. Will that have any affect on Kesha’s case?
OVED: Legally no, but this is really not a legal case. This is becoming a case that is being tried in the court of public opinion—it’s more of a public relations issue than a legal issue.

Is the "forced" collaboration between Kesha and Dr. Luke considered a crime of some sort? She is claiming that she cannot make records with anyone else besides the producer.
But those are not statements. Generally these types of relations are a product of an agreement that the parties negotiate between themselves. So at some point in time before [this case], she and her lawyers and he and his lawyers drafted and agreed upon an exclusive distribution agreement. It was a production agreement where she would only utilize his services to produce records. So for her to claim subsequently that this was a product of force is going to be looked at very suspiciously by the court, as evidenced by the fact that the judge refused to order the injunction earlier.

Speaking of the injunction, is Kesha able to appeal it, even if the trial will still be going on after this denial?
Sure. The injunction was basically asking for immediate relief at the beginning of the case—as opposed to while the trial goes on, if the court finds that indeed Kesha is correct or sides with her, then they can issue a ruling then. But it denied the initial release she was seeking at the front of the case without any evidence to substantiate her claims of abuse.

I feel like a lot of her fans heard about the denial and thought the trial was over—but that is not true.
Correct, that’s a very important point. Really nothing has been determined other than the fact that she made a very aggressive move upfront, and the judge basically said, “Look, you aren’t giving me any evidence to support these claims.” They can’t just vitiate a contract between two people based on what she’s saying without any evidence.

So for Kesha’s legal team, their next step would be finding evidence to prove her case.
Yes, they’re going to have to do that to prove the case, and more importantly it will support their claim that she should be released from her obligations.

Yesterday, there was a report that surfaced stating Sony dropped Dr. Luke from their label, but Dr. Luke's reps denied it and Sony won't comment on the report. If Sony was to release him now, how would that affect Kesha?
I don’t know if it will have an effect on her one way or the other. It will affect her in the sense that she is making these allegations of abuse, so now she would supposedly not have to work with him anymore. But it’s very important for readers to know that it’s highly unlikely that Sony’s agreement with Dr. Luke would permit them to terminate it without cause, absent of the corresponding obligations to compensate him. Generally in these types of situations, when it gets this heated the parties generally negotiate a mutually agreeable exit and that often carries with it a restrictive confidentiality clauses—which prevents either party from discussing it. So what you’ll have is probably Sony and Dr. Luke’s people coming together for an agreed-upon amount for him to walk away from his contract—and then allow Kesha to sign with someone else.

Sony Music also made a statement saying that it’s possible for Kesha to record without Dr. Luke, but they’re not able to terminate her contract. But then Kesha is claiming that she is only able to record music with him. There is a discrepancy that is confusing people, and I don’t know if that will impact the outcome.
Yes, because you’re not speaking to the lawyers. I would probably assume that [Kesha] would know best in terms of her direct agreement with [Sony], although Dr. Luke’s Kemosabe Records is a Sony imprint. But a lot of times you are getting this disconnect because you’re dealing with non-lawyers.

Dr. Luke’s contract with Sony reportedly expires in one year. Depending on how this trial goes, would that affect anything in the long run?
There’s a big likelihood that the agreement will terminate before the trial comes up, just based on how long these things usually take. It only becomes an issue if the trial hasn’t been resolved one way or the other, and if there is any automatic renewal cause in the contract. If it says in the agreement that after five years if he’s hit certain metrics and produced x amount of revenue, then it’s possible that it will automatically renew. Or it can say that it will terminate and the parties can negotiate if they want to renew. But I haven’t had the chance to review what the contract says.

Based on your judgment of what you’ve been seeing with this case, have you found any loopholes?
I don’t know what their agreement looks like in order to be able to properly analyze that. I can only surmise based on the types of agreements that we prepare for our clients with similar situations in the entertainment industry. Generally, they would not allow anybody to terminate the agreement without cause.

Just looking at this general information given to the public—and I know it’s still early—but who do you think has the upper hand in this case?
I don’t know who’s going to win it because I don’t have the evidence, but it’s a good bet that if they did have some evidence that’s the smoking gun they would have presented it early on in the case. The fact that it wasn’t presented (or if it was presented and not persuasive) is an indication that they have an uphill battle.

We represent a lot of fashion designers and people in music/film, and with all of these things, the context of it is legal. Sometimes when you hear that an artist just got signed to a 10-year record deal, you’ll think “Wow, that’s incredible.” But the truth of the matter is that it’s not a good deal for the artist because it just means they’re tied to them because you’re a nobody and they pay you nothing. 

There was a case with George Michael, for example, way back where he just wanted to get out of his deal because they paid him in peanuts. Now he’s a Platinum-selling artist and they’re still paying him peanuts, so it’s very important to realize that a lot of it is pre-determined by legality. The fact that Kesha’s case got this much publicity is generally not common. The teams try to keep it very quiet without making the public aware, because it doesn’t do anybody any good.

For more on the Kesha case, you can read:

Our live report from the #FreeKesha protest at NYC's Supreme Court
Our essay explaining how the case reflects a greater misogynistic rape culture
An opinion piece on why Dr. Luke's career is in trouble (but not Kesha's)