From Kesha’s Legal Battle to Lady Gaga’s Oscar Performance: a Prediction about the Battle against Sexual Harassment
March 1, 2016 by Katherine Imp
Money will always prevail.
In my opinion, the battle against sexual harassment will not be won in a courtroom. It’s a battle we will continue to fight until the bottom line of America’s “decision makers” is negatively affected by the backlash of sweeping these issues under the rug.
Let’s start with Kesha.
Kesha is required by contract to record music exclusively with Kemosabe Records, owned by Dr. Luke (aka Lukasz Gottwald). Kemosabe Records has an exclusive deal with Sony Music Entertainment. Kesha filed a lawsuit in October 2014 against Dr. Luke and Kemosabe Records with the following allegations: sexual assault and battery; sexual harassment; gender violence; civil harassment; violation of California’s unfair business laws; intentional infliction of emotional distress; negligent infliction of emotional distress; and negligent retention and supervision.
A New York judge recently denied Kesha a court injunction that would have allowed her to record music outside of Dr. Luke, Kemosabe Records, and Sony Music Entertainment, in part due to Kesha’s testimony under oath in 2011 (related to a separate lawsuit) that Dr. Luke had never made advances at her.
My personal opinion?
Dr. Luke (aka Lukasz Gottwald) absolutely committed every crime alleged in Kesha’s lawsuit and, in 2011, when directly asked about Dr. Luke under oath, Kesha lied for fear that it would ruin her career (and it probably would have).
My legal opinion?
The court got it right.
To be released from a contract, you need to prove that the other party has breached the contract or committed one of the acts required to terminate the contract. Because breach of contract was not alleged in Kesha’s lawsuit, I assume, without having seen her agreement with Kemosabe Records, that Dr. Luke’s alleged actions have not technically triggered any provision of the agreement that would require termination.
So, is there another way to fight this issue from a legal standpoint?
Sometimes contracts will have a “termination for cause” provision that allows one party to be released from a contract if the other party is, for example, charged with a crime involving, or otherwise engaging in, moral turpitude. Note, however, that these types of provisions, also known as “morals clauses”, are rarely mutual. The purpose of a “morals clause” is to allow a company to be released from a contract if the artist engages in a “morally deviant act” … not the other way around.
To allow an artist to get out of a contract with a studio or record label for a “morally deviant act” is a slippery slope, particularly without a conviction in a court of law. In addition, a “morally deviant act” by a company does not necessarily have a financial impact on the artist. On the other hand, an artist committing a “morally deviant act” often does affect the artist’s brand and therefore the ability of the studio or record label to make money off the artist’s brand.
Will Kesha prevail?
Maybe. But her success is directly correlated to Sony’s bottom line. If Sony stands to make more money by terminating its relationship with Dr. Luke and/or releasing Kesha from her contract, then Dr. Luke will be terminated and/or Kesha will be released. If Sony stands to make more money by keeping its contracts with Dr. Luke and/or Kesha, the legal battle will continue. In other words, money will always prevail.
So what’s my prediction?
The battle against sexual harassment can only be won from a social campaign that so gravely effects the bottom lines of studios, record labels, companies and other “decision makers” that they are forced to terminate their relationships with the men and women who commit these terrible crimes.
Those who are social media influencers can help by speaking out about the topic as Lady Gaga did with her beautiful performance at the 2016 Oscars, which addressed the issue of sexual harassment on college campuses.
Consumers can help by supporting companies that abide by good business practices and decreasing their purchases from companies that do not abide by such practices.
And lastly, heads of companies, studios and record labels can help by finding new ways to meet their financial projections that don’t include hiring people that psychologically and/or physically abuse others.
Katherine (Kate) Imp is an entertainment attorney at Ramo Law PC and Chicago native. She specializes in film finance, production and distribution for clients in Illinois and across the country. Contact Kate at @KatherineImp or firstname.lastname@example.org.
Disclaimer: The information in this column is intended for general information purposes only and should not be construed as legal advice.