Kesha leaving court last week. Photo by Raymond Hall/Getty Images.
In January 2012, Kesha released a song that was unlike any other in her party-pop discography. It was a cover of Bob Dylan’s "Don’t Think Twice, It’s All Right" that was stripped down and vulnerable, centering around little more than a first-take vocal and audible tears. She called it "an emotional purging."
As the Nashville native born Kesha Rose Sebert readied the follow-up to her blockbuster debut album, 2010’s Animal, that bare-bones catharsis seemed to mark a signpost for what was to come. Once unforgettably flagged as "what would happen if you crossed Katy Perry, L’Trimm, and a really bad Goldschlager hangover," now Kesha had started collaborating with the Flaming Lips; she told Billboard her sophomore record would "resurrect" rock’n’roll. Whatever you think of Warrior, which finally arrived in December 2012, it wasn’t that. About two weeks after Warrior’s release, in the aftermath of the tragic Sandy Hook elementary school shooting, Kesha posted and deleted a tweet saying she was "forced to" sing the lyrics to the album’s now-untimely single, "Die Young," co-written and co-produced by one-time mentor Dr. Luke. She hasn’t issued an album since, though she has popped up occasionally on others’ work.
That’s the musical backdrop for the setback dealt to Kesha last Friday in the New York State Supreme Court. A judge denied her request for a preliminary injunction barring Dr. Luke from interfering with her signing to another label while her claims of rape and other abuse by the pop superproducer born Lukasz Gottwald work their way through the courts. Arriving at a time when women in the music industry are finally starting to be heard when it comes to allegations of sexual abuse, the decision has rallied support from other female pop stars, most prominently Taylor Swift. And understandably so: Kesha may still be able to record for Dr. Luke’s Sony imprint Kemosabe Records without Gottwald’s involvement, as Dr. Luke and Sony claim, but imagine how that sounds to someone whose future success would line the pockets of the person who allegedly drugged and raped her.
In the cold light of the courtroom, though, Kesha’s bid to be freed from her contract was always a long shot. Bigger legal battles remain. In fact, later in the same hearing, the judge said she was reserving judgment on motions to dismiss Kesha’s abuse claims.
Again, what Justice Shirley Werner Kornreich rejected in court was Kesha’s request for what’s known as a preliminary injunction, which happens before either side has had a chance to argue the underlying facts of the case. Essentially, the plaintiff argues that if the defendant isn’t stopped from doing something right now, the plaintiff will be hurt in a way that monetary damages won’t fix later. In Kesha’s case, a preliminary injunction would have allowed her to work with other labels until the case is resolved. As the name suggests, this is a legal maneuver that happens early in cases, and the burden on the plaintiff (Kesha) is very high.
A court typically considers four factors in deciding whether to grant a preliminary injunction. As Inside Counsel explains, the most important consideration tends to be the likelihood of irreparable harm. Kesha’s lawyers argued that she wants to record, just not for a label "affiliated with someone who has emotionally and sexually abused her"; her legal team also filed a sworn statement from a former major-label executive speaking to the short-lived nature of pop careers.
Lawyers for Dr. Luke and Sony Music Entertainment, which owns Kemosabe, contended Kesha would be allowed to record without Dr. Luke’s involvement—claims Kesha’s lawyer, Mark Geragos of Geragos & Geragos, repeatedly called "illusory," according to a court transcript obtained by Pitchfork. In effect, Geragos argued that recording without Dr. Luke won’t help Kesha, because the label will sit on her recordings and fail to promote them. Scott Edelman, a partner at law firm Gibson Dunn & Crutcher who is representing Sony, unsurprisingly disagrees, telling Pitchfork, "From Sony's perspective, supporting Luke and supporting Kesha are not mutually exclusive. They want them both to succeed." (At press time, Geragos did not return Pitchfork’s requests for further comment.)
Ultimately, Judge Kornreich said Kesha’s lawyer was engaging in "fantasy and speculation" by asserting Sony won’t promote Kesha without offering proof. Moreover, she argued that granting the preliminary injunction would give Kesha "the ultimate relief"—what a plaintiff is hoping to get at the end of the entire legal process—"and preliminary injunctions cannot be issued to obtain the ultimate relief." Kornreich added that allowing Kesha out of her contract would "undercut our whole … commercial system." Right or wrong aside, it’s unlikely a judge in the commercial division of the New York State Supreme Court would want to undercut the commercial system.
Adam Lambert, Max Martin, Dr. Luke, and Kesha at the 2011 ASCAP Awards. Photo by Kevin Winter/Getty Images.
For all the vicious back and forth publicly, not all of the events leading up to 2012’s Warrior played out in clear view. As Jezebel points out, Dr. Luke has enjoyed a striking degree of privacy, despite a hit-making streak that dates back to co-writing Kelly Clarkson’s "Since U Been Gone" with Max Martin a dozen years ago, and includes hits by Britney Spears and Katy Perry. What little he said in interviews, including with The New Yorker’s John Seabrook for an October 2013 magazine piece and the 2015 book The Song Machine, has tended to support the idea—the subject of a fan’s September 2013 "Free Kesha" petition—that Warrior was beyond Kesha’s creative control.
Dr. Luke seems to be especially meticulous when it comes to sophomore albums. "Like with Katy [Perry], she’s now had two records, and I believe if you can get those both right, you’re a career artist," he told Billboard in 2010, as Jezebel highlights. "If you can make huge first and second records, if you have a third record that sucks, you can still do a fourth record, no problem. And you have enough material out there that you can tour for as long as you want." Dr. Luke added that he would do "everything [he] can" to ensure a second record succeeds.
Kesha signed with Dr. Luke in 2005, when she was 18 years old; three years later, she contributed the standout hook from his hit for Flo Rida, "Right Round," but according to Seabrook, because Dr. Luke didn’t give her a songwriting credit, "she earned nothing from the smash." That, Seabrook notes, was about when she began going by the name Ke$ha.
Early on, Kesha also signed to David Sonenberg's DAS management company. A 2010 story in Billboard cites "several sources" as saying that DAS offered her up to other labels without Dr. Luke’s blessing, at a time when she was still in a deal with Luke. There reportedly were "too many questions" about her arrangements with Dr. Luke, so she broke with DAS. In 2010, DAS sued Kesha for commissions she allegedly owed the company, and sued Dr. Luke for allegedly interfering. According to papers filed by DAS in the litigation, as quoted by Billboard, Kesha was talking as early as 2005 about how Dr. Luke had "engaged in certain unethical and unlawful actions against her and that she did not want Gottwald to be part of her career going forward." As part of that case, she did give a deposition denying he ever gave her a roofie and saying, "Dr. Luke never made sexual advances to me." Geragos, Kesha’s lawyer, argued that those statements were "coerced"; her side has contended she didn’t come forward earlier because she was too afraid. (For perspective: Sixty-eight percent of sexual assaults are not reported to the police, according to the Rape, Abuse & Incest National Network, the largest U.S. anti-sexual-violence group.)
But by October 2014, Kesha had sued Dr. Luke in a California court, accusing him of rape and "despicable conduct," including using blackmail to demand his pregnant wife get an abortion, and boasting about getting girls drunk and having sex with them. She also alleged she checked into rehab in January 2014 to treat an eating disorder caused by Dr. Luke bullying her into losing weight and calling her a "fat fucking refrigerator." At the time, Dr. Luke’s lawyer, Christine Lepera of Mitchell Silberberg & Knupp, called Kesha’s allegations of sexual abuse "spectacular and outrageous fiction." Luke hit back with a defamation lawsuit, filed in New York; he claimed Kesha was trying to extort him to get out of her deal. Kesha filed counterclaims in New York. Last June, a California judge said the New York case should go first, and in September, Kesha filed in New York asking for the preliminary injunction.
That brings us mostly up to speed, but it’s worth pointing out one unsettling wrinkle along the way. In 2014, Geragos—who previously defended Chris Brown after his felony assault of Rihanna and Michael Jackson in the early phases of his molestation case—tweeted comments that "seemed to imply Dr. Luke had raped Lady Gaga," as Billboard put it. Gaga’s publicist reportedly deemed the suggestion "ridiculous, manufactured, utterly incomprehensible."
It’s this incident, and Geragos’ ties to Chris Brown, that Dr. Luke zeroed in on Monday, in a series of remarks on his Twitter. His plea to not rush to judgement was echoed by his lawyer, Lepera, in an interview with Pitchfork on Monday. "Not everybody accused of rape has actually raped someone," she says. "You can care about [the issue of rape] but just because someone utters that word doesn’t mean in all instances that claim is correct. This is one where it’s not."
In a statement released early Monday, Lepera maintained, "Kesha is already ‘free’ to record and release music without working with Dr. Luke as a producer if she doesn’t want to. Any claim that she isn’t ‘free’ is a myth." The choice of the word "free," which doesn’t appear in the court transcripts, was a clear echo of the #FreeKesha social media movement that has been galvanized since Friday’s ruling.
As the New York Times reports, women across the music industry who have publicly backed Kesha include Clarkson, Gaga, Fiona Apple, Best Coast, Lorde, Miley Cyrus, and Ariana Grande. Most prominently, Swift announced a $250,000 donation to Kesha "to help with any of her financial needs during this trying time." (Swift hasn’t commented further publicly; at press time, her rep had not responded to Pitchfork’s request for additional comment.)
On Tuesday, Kesha thanked her supporters via Instagram, saying, “I am beyond words in gratitude... the support I have received has left my face swollen from tears."
Kesha fans protest outside the New York State Supreme Court during Kesha's hearing. Photo by Roy Rochlin/Getty Images.
Both sides still have plenty to argue in court. Earlier in February, Kornreich dismissed Dr. Luke’s claims that Kesha’s mother, Pebe Sebert, and her manager, Jack Rovner of Vector Management, talked Kesha into trying to break her contract, as The Hollywood Reporter explains. But Dr. Luke also filed a similar claim against Pebe Sebert in Tennessee, where she resides and where it is still pending. Dr. Luke’s 2014 claims of defamation and breach of contract by Kesha are also yet to be resolved. Kesha’s case against Dr. Luke in California court, though on hold, isn’t technically finished.
As for Kesha and Dr. Luke’s New York legal battle, it is set to be a long slog, as Billboard reports. With the way the schedule looks, the earliest the two sides could file saying they’re ready for a trial is February 28, 2017. The judge would then still have to set a trial date, which arrive more than four years after the release of Warrior.
In the meantime, as Vanity Fair notes, Kesha has a range of (mostly unpleasant) options. She could fulfill her contract; Geragos has said she’s "amenable" to working with Sony as long as Dr. Luke isn’t involved. She could file an argument based on California’s labor code requirement that employment agreements can’t be longer than seven years. Or she could hope that Sony might decide to exercise its option to release her after she provides a third record, "in some fit of empathy (or realizing they’ll likely now never make good on their investment in her)." Of course, that’s all depending on what Kesha and Dr. Luke’s contracts specifically entail, which as with much in the case, remains largely unclear. It’s also possible both sides will ultimately find a way to settle the dispute before it goes to trial.
Long term, Kesha’s chances are not as grim as they may seem now. For one, the judge didn’t approve Dr. Luke’s request to toss Kesha’s abuse claims; she reserved judgment on that question for now, despite noting a lack of medical evidence, but she said would give Kesha’s lawyers time to file a new argument with more specifics—one that, according to Law360, Kornreich likely wouldn’t have to dismiss at all. As for Kesha’s contract, too, it’s worth remembering that the judge was ruling only on a narrow legal question—one that doesn’t necessarily mean she sides with either Kesha or Dr. Luke about the substance of the case.
"This is a commercial venue," she said, in remarks that have become notorious. "My instinct is to do the commercially reasonable thing and to assume that business people and certainly a business like Sony will do what is in its best interest. It's not in its best interest not to make money and not to promote a recording artist in whom they—they've invested a lot of money when they're willing to record her recordings."
The court system’s biggest flaw here may be assuming that the music industry is commercially reasonable. Kesha’s preliminary injunction bid was just that—preliminary—and its fate always resembled her hook from Pitbull’s 2013 smash "Timber": "It’s going down." But without the ability to record for other labels, Kesha faces financial pressure to return work. The "Tik Tok" singer may find herself in a race against the clock.
On Kesha’s "Don’t Think Twice" cover, she actually changed the lyric about "precious time," rewriting Dylan’s canonized words. Through tears, she can be heard singing, "You just kinda wasted my precious life."