Recently, a New York Judge denied recording artist Kesha’s request to be let out of her contract with her long time producer, Lukasz “Dr. Luke” Gottwald, his label, and Sony. Kesha alleged that Dr. Luke sexually assaulted her, and her contract should be voided or decimated because any further contact with him would cause harm to her physical and psychological well-being. In both her Los Angeles and New York lawsuits against Dr. Luke, Kesha alleges that he gave her alcohol and “sober pills” which caused her to wake up naked in his bed, sore and unable to recall what happened.
Despite her allegations and claims of damages, New York supreme court justice Shirley Werner Kornreich declared that, because the contract was heavily negotiated and typical for the industry, she could not be let out of it and it remained valid.
In a surprise turn of events, Sony released Dr. Luke from his contract in the wake of bad publicity from the #FreeKesha movement.
But the implications of the legal decision are clear and present a huge warning sign to women everywhere. Read carefully before you sign.
Let’s break down the details of Kesha’s suit to see what we can learn from it
What Goes Into A Contract Negotiation?
The legal elements of a standard contract are 1) Offer, 2) Acceptance of that particular offer, and 3) Consideration (typically money or promotional). When contracts are negotiated, specifically recording contracts on a major level, they are heavily combed through, negotiated, and revised by attorneys before execution. Most attorneys request the inclusion or deletion of specific provisions of contracts which will be conducive to their client, whether it is the artist, producer or record label.
Generally speaking, there aren’t many recording or production contract provisions that specifically address rape. There are several provisions that give record companies the option to void a contract if the artist partakes in specific negative conduct (i.e. – morality clauses), but very few go into specifics about what the ramifications are if the label owner engages in bad behavior.
How Is The Judge’s Decision Legal?
Because there was no provision on Kesha’s contract that allowed her to void it due to misconduct by Dr. Luke or Sony, the judge felt that the contract had to be upheld. Sony has since offered Kesha the option to record her remaining albums without the presence of Dr. Luke. But her attorney, Mark Geragos, has dismissed this as an “illusory promise.” Moreover, Kesha’s contract gave a massive amount of control to Dr. Luke’s label, including say over other producers or managers she could work with. Ultimately, Sony claims it can’t release her from Dr. Luke even if they wanted to.
In the meantime, Dr. Luke has vehemently denied all allegations of wrongdoing, noting that in 2011, Kesha and her mother Pebe actually testified in a separate case that he had not made any sexual advances toward her. But like many alleged sexual assault victims, it appears it took her some time to find the strength to come forward with her allegations, a fact which he is using in his defense.
Both her lawsuit and his subsequent defamation lawsuit are still pending in California.
What Can I Learn From This?
Most recording and production contracts for new artists heavily side in the favor of the record label and a well-known producer. This is true for many other types of contracts with big names or corporations. More often than not, these companies have entire legal teams dedicated to drafting contracts. That means that it’s important for you to have a professional on your side as well.
Whenever you are presented with a contract for your services — any service — you should immediately have it reviewed by a skilled attorney. If the attorney sees any red flags, don’t be afraid to have them negotiate on your behalf.
Make sure that it is clear from your contract what is expected of you and what the client will provide you. Ask an attorney to explain thoroughly to you what language, if any, is in the contract to protect you. And if there is any grey area, have a conversation with the client immediately. Avoid signing bad contract with hopes to renegotiate down the line as much as you can — once they’ve got you, it’s a lot harder to make changes in the aftermath.
With more artists becoming vocal about the dangerous trappings of the entertainment industry, including sexual assault, drugs, blackmailing and violence, it is interesting to see how these thoroughly-drafted agreements will be open for negotiation by new artists. It is apparent from the decision in Kesha’s case that, in the absence of any issue taking place before the agreement was executed, a contract can’t be voided solely based upon allegations of sexual misconduct, the threat of physical and psychological harm.
To quote Kesha’s recent words on the situation, “Don’t be afraid to speak up against any injustice you experience.” At the end of the day, as much as you want to work and have your professional dreams come true, it’s important to protect yourself as much as you are able to.
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