We Asked An Actual Entertainment Lawyer: Why Can’t Sony Help Kesha?

This morning, Kesha fans took to the streets to protest Sony’s apparent inability to free Kesha Sebert (known to fans as Kesha or Ke$ha) from a contract which binds her to her producer and alleged abuser, Lukasz “Dr. Luke” Gottwald. Numerous sources have reported on the disappointing ruling in Kesha’s injunction against Gottwald; the judge explained that she could not grant the injunction because of the precedent it would set. By allowing an artist out of her very binding contract (the likes of which are typical of the industry), this ruling could ultimately diminish the courts’ ability to enforce other recording contracts. The difference is, most artists are not legally bound to a man who raped and abused them over the course of several years. In the past few days, the collective internet has been overrun with fans aghast at Kesha’s apparent lack of agency in determining whether or not she is forced to continue working with Dr. Luke, and Sony’s reps seem to claim that their hands are tied.

Earlier this week, a lawyer representing Sony released a statement, explaining that “[while] Sony has made it possible for Kesha to record without any connection, involvement or interaction with Luke whatsoever… Sony is not in a position to terminate the contractual relationship between Luke and Kesha. Sony is doing everything it can to support the artist in these circumstances, but is legally unable to terminate the contract to which it is not a party.” The internet responded with understandable outrage — how could this be possible? How could such a powerful corporation as Sony be unable to protect Kesha from her abuser, and how could they sleep at night knowing what they’re effectively forcing their artist to remain beholden to him?

Gottwald and Sebert at the 2011 ASCAP Pop Music Awards, via WireImage

Gottwald and Sebert at the 2011 ASCAP Pop Music Awards, via WireImage

In the interest of breaking down the nature of Kesha’s agreement with Dr. Luke and Dr. Luke’s agreement with Sony, we reached out to a Los Angeles-based entertainment lawyer who has worked with several major acts, though she stresses she has not worked with any of the parties involved and is not privy to the exact nature of their contracts. That said, she was able to offer some unique perspective about how these contracts generally work, and what (if anything) Sony could actually do to set Kesha free.

First, let’s look at Kesha’s case against Dr. Luke. In her complaint, her lawyer explains that Kesha met Dr. Luke as a naïve 18-year-old who blew off her academic career to follow the stardom and success he promised her. Gottwald is a well-connected, successful producer; you may know his handiwork from songs like Kelly Clarkson’s “Since U Been Gone,” Katy Perry’s “Teenage Dream” and Britney Spears’ “Hold It Against Me.” However, Sebert alleges that his relationship with the young singer was fraught with false promises and downright abusive behavior, culminating in sexual abuse and threats against her career, her family, and at one point even her dog. Gottwald at times called her a “fat fucking refrigerator,” which led Sebert to a life-threatening eating disorder, and drugged and raped her repeatedly. He refused to re-negotiate her contract (which is customary when an artist receives the level of success that Kesha’s first album received), and manipulated and undermined Sebert until, she says, she nearly ended her own life. The annotated complaint is detailed here and worth reading; it is truly a work of horror.

It comes down to this: Dr. Luke’s imprint label Kemosabe is a joint venture between himself and Sony. Essentially, Sony provides press, radio, some funding, royalties and accounting to Gottwald’s artists in exchange for a share of profits and Gottwald’s A&R and production services. In Kesha’s case, because she is signed through Kemosabe, she actually has no privity of contract with Sony, and if Kemosabe ever dissolved their deal with Sony they would maintain control over Kesha. Despite being the corporate muscle behind Kesha’s career, Sony does not possess Kesha’s exclusive recording services — Dr. Luke does. Even if Sony set up a recording situation where Kesha recorded without Gottwald, performed only songs not written or produced by Gottwald, and never saw Gottwald even once, he would still be the direct beneficiary of all of her music. Additionally, in California, where both Kemosabe and Gottwald’s publishing company Prescription Songs LLC are based, the recording industry has amended a law limiting employment agreements to seven years to exclude artist contracts. For Kesha, signed to a six-album deal, there is no clear light at the end of this particular tunnel.

Image via Getty

Image via Getty

A producer of Dr. Luke’s caliber is an important asset to Sony, and the attorney we spoke to theorized that they agreed to work with his label as an effort to keep Gottwald as an in-house producer, working exclusively with their artists for a certain number of years. It’s likely that Dr. Luke also has a guaranteed number of songs on every record Kesha creates, which is typical of producers’ label deals. If Sony were to break the agreement, Dr. Luke would be able to walk with everything – Kesha and his other artists, unless he agreed to let them go or Sony attempted to buy out their personal agreements from him. It’s unclear whether or not Sony have some rights to the masters they’ve released for Kesha, but those masters could end up as a bargaining chip in the negotiations necessary to break the relationship between Sony and Kemosabe.

From a PR perspective, the best thing Luke could do right now would be to let Kesha go, to sell her deal – but that doesn’t appear to be happening. At no point has Gottwald commented on his intentions or ability to do so, only he’s released a dismissive statement claiming that Kesha is “‘free’ to record and release music without working as Dr. Luke as a producer,” and adding that “any claim that she isn’t ‘free’ is a myth.”

As of this moment, Kesha is unable to perform features on anyone else’s records, create any live recordings (even of other people’s songs), sing the national anthem on TV or put up an acoustic cover on YouTube without Dr. Luke’s explicit permission. Because Kesha is signed to Gottwald’s publishing company, she is also unable to make a living writing songs for other people (something she’s done in the past — “Til The World Ends,” among others). If Kesha and I wrote a song together right now, I would own 50% of that song and the other half would belong to Dr. Luke. No matter what she does with her career at this point, everything she does will directly benefit her abuser, regardless of whether she’s in the same room with him or not. The systematic sexual harassment and abuse of women in the music industry is nothing new, but Kesha’s situation is a very particular nightmare.

At this point, it’s difficult to imagine a young artist wanting to work with Dr. Luke ever again, or for Sony to enthusiastically continue their working relationship with Gottwald, whose imprint label is now a complete PR disaster. Vanity Fair posit that Sony could drop Kesha as soon as she delivers her third album, citing the label’s release of Zayn Malik from One Direction as an example of a less pressing release of contract – but in this case, the option to release Kesha is entirely Dr. Luke’s, not Sony’s.

While protesting outside of Sony’s offices is a noble effort, fans would do better to direct their vitriol towards the one man responsible for Kesha’s current legal situation. Unless Gottwald is willing to release Kesha from his clutches, the only realistic solution is for Dr. Luke to float away to a deserted island somewhere and never come back.


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Stef Schwartz is the founding Music Editor and self-appointed Vapid Fluff Editor at Autostraddle.com. She's a rock'n'roll jack-of-all-trades, vegan crusader and legit professional weirdo. She currently resides in New York City, where she spends her days writing songs nobody will ever hear and her nights telling much more successful musicians what to do. Follow her on twitter and/or instagram.

Stef has written 249 articles for us.

57 Comments

  1. Thumb up 11

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    I dunno, I think this lets Somy off a little easy. Yes, they don’t own Kesha’s particular contract, but they have plenty of their own with Dr. Luke, and they can definitely use those to pressure him.

    And yes, he could walk away from them, but that’s at best a pain in the ass, to walk away from a guaranteed paid job and set up a new one, especially when you’re slightly toxic at the moment.

    So, since he’s revealed himself to be a heartless bastard who won’t change anything as it stands, I think pressuring Sony to use its leverage is exactly the right tactic.

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      No, it isn’t a good tactic at all. She is basically trying to hold sony – an uninvolved third party – accountable for what Dr.Luke did. That isn’t how contract laws of any kind work and no, you dont get to end a contract just because you don’t want to benefit your abuser. The correct – and infinitely more effective route – is to press criminal charges against him for sexual abuse (chrges she denied when testifying n court), then file a civil claim pursuant to this and sue him for release of her contract as damages. Alternatively, she can do what David Bowie did to Tony Defries: between 1975 and 1980, Bowie was in this exact kind of shitty, open ended contract with Defries. So for 5 years, he intentionally produced commercially useless tracks as “albums” to meet his contractual obligation. The minute he fullfilled his contract and was free, he churned out Let’s Dance. THAT is how she gets out of this shit deal. Whining to a judge to ignore contract law just because Dr. Luke committed a crime is stupid because thats not how the fucking law works. Dr.Luke is a slimeball and what happened to Sebert was totally not her fault but that doesn’t make this a wise, effective, or even fair tactic. Especially since no one is forcing her to come into contact with this shitbag. She Owes this asshole 6 almbums. All she has to do is churn out 6 shitty experimental albums and shes free. There doesnt appear to be anything stopping her from going into a DJ booth, recording a 6 hour compilation, breaking it into 60 6 minute blocks, haphazardly, tossing some shitty, ghost written lyrics on each 6 minute “track”, put ten of them on each “album, and deliver them all to luke with a big bag of used dildos for him to choke on. that would fullfill her obligation, leave him with something that is commercially worthless, and show women everywhere how to beat this asshole at his own game. and THEN if sony refused to sign her independently of Dr.Luke, the outrage at them would be justified.

      • Thumb up 2

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        Just because David Bowie was able to do that in the 70s doesn’t mean it’s a viable solution for Kesha in 2016. For one thing, David Bowie already had eight albums by 1975 and was already seen as a superstar and a respected artist. He’s also a man. Kesha has not reached his status.

        Then there’s the fact that I don’t think Sony is under any obligation to release what she’s recorded. Just look at how long it took JoJo to get out from under her label during which time they weren’t releasing the material she recorded. The best she could do was to release some mixtapes for free. Eventually she was only able to get out of her contract by arguing that she was a minor when she signed her contract and a minor is not allowed to sign a contract that lasts longer than seven years. And the case wasn’t even settled in court! Unfortunately, that’s not something Kesha can do.

        Kesha already has tons of unreleased music. If Sony wanted to, they could release a new Kesha album right now. And even before the sexual assault allegations came out, Kesha was vocal about her not having enough creative control in the studio. So, I don’t think Kesha recording six hours of experimental music is a realistic solution. Sony could just shelve those albums and never release them.

        And then there’s also the damage to her career to consider. Like I said before, David Bowie was a huge superstar. He could not be ignored. Kesha has only released two full length albums that a lot of people (incorrectly) see as lightweight, shallow pop. And she’s been out of the limelight. Her last album came out in 2012. A popstar losing their momentum can do irreparable harm to their career. So, for her to record six “commercially useless” albums that, if Sony even decided to release them, would most likely be spread out over a considerable length of time.

        I don’t really know why I’m replying to this. This is an old article which means probably no one is going to read my comment anyway. And judging by the fact that you don’t actually have an account here, I’m guessing you just dropped in to leave a comment on this particular article and then dropped back out. So, I kind of doubt you will even read my reply. But I saw your comment last night and it started bugging me again when I woke up today. So, here I am commenting into the internet void.

        • Thumb up 3

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          It’s never too late to comment on an AS article.

          BUT I would argue that a comment that reduces everything Kesha has been through to “just because Dr. Luke committed a crime” and describes using the legal system to try to protect herself as “Whining to a judge” doesn’t deserve as much effort as you put into the response.

          Though, your response is spot-on. SO…

        • Thumb up 4

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          For the record, I love your reply Blackmar.

          And to thr3myte I would say – just because the law doesn’t work so that abuse gets someone out of a contract doesn’t mean it shouldn’t. Why should people be stuck in damaging, abusive situations for the profit of other people, particularly for people who have abused them?

          • Thumb up 1

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            Yay! Thank you, @rachelwashere and @ashurredly! I’m glad my comment wasn’t a complete waste. And I know the original comment really wasn’t worth replying to, but it was just one of those things where if I hadn’t written down what I was thinking, it was going to bug me all day! haha

  2. Thumb up 4

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    Cracked’s been doing a “Real Headlines” photoplasty which is pretty hit or miss, but they got this one right.

    “Kesha’s Producer Thinks It’s Unfair To Take Her Word He Sexually Assaulted Her; Fair To Take His Word He Didn’t”

    I’m not always happy my job is in manual labor and not intellectual property, but…this shit gets fucked up fast.

  3. Thumb up 1

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    THANK YOU for writing this – so well done. My disgust of Dr Luke started years ago when I read Drinking With Strangers. However, when word of this surfaced and as I’ve watched it all play out, disgust isn’t a strong enough word anymore. I hate this for Kesha. 🙁

  4. Thumb up 1

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    This was really interesting and infuriating. I don’t know anything about entertainment law and this is much more complicated than I realized. It’s enraging that Gottwald is really the only one who can release her from her contract with his company, which he obviously doesn’t want to do.

    • Thumb up 5

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      Well, of course he doesn’t want to let her go. His attitude is about control and money. If she won’t work with him, he won’t make any money – but neither will she, and that keeps her under his control to a point. He built a punishment into the contract, which she probably didn’t recognize as such when she signed it. She probably didn’t think she’d ever need to get away from him, likely didn’t suspect that he’d turn out to be abusive.

      The man is a bully, plain and simple. A narcissistic, selfish bully.

  5. Thumb up 8

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    I read the headline as “We Asked An Actual Environmental Lawyer: Why Can’t Sony Help Kesha?” and I read it TWICE because it didn’t make sense the first time. Then I decided that maybe you couldn’t get ahold of a more relevant lawyer and environmental lawyers are still lawyers so maybe one could actually have a worthwhile perspective on these recent events? It’s part of the reason why I went forward with reading the article. It makes so much more sense as entertainment. Glad I read the article though.

  6. Thumb up 4

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    Thank you for this clear and detailed explanation. Contract and employment law aren’t on most people’s minds, but the perversity of this situation is all about the legal landscape in which this injustice is occurring. Power has been shifted into the hands of the few, and the laws on the books allow unscrupulous monsters to create a culture of exploitation.

    “[I]n California, where both Kemosabe and [Dr. Luke] Gottwald’s publishing company Prescription Songs LLC are based, the recording industry has amended a law limiting employment agreements to seven years to exclude artist contracts.”

    Those of us who vote in California need to do something about this.

  7. Thumb up 1

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    Thank you for this! If I hear one more jerk face call her a liar because, “if she really was being abused, she would’ve accepted their offer to work with other producers,” I’m going to plaster this article everywhere so they can’t avoid reading it.

  8. Thumb up 1

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    Is bringing criminal charges against him an option? If he were convicted of rape and/or abuse, (although I know how difficult obtaining that conviction is) surely that would affect his existing contracts. Or perhaps I’m very naive. Curious if that’s an option for Kesha though.

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      Even if he did get convicted, he wouldn’t be forced to give up his company. Kesha’s contractually bound to his company, so if he can get someone to take over for him while serving time, she’d still have to deal with the contract disputes. It’s awful.

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      Unfortunately, the time for her to be able to bring him up on criminal sexual assault charges and actually get a conviction is likely over. Without any physical evidence, it would be impossible for him to get convicted. Hell, even having written evidence from the rapist admitting what he did isn’t enough in a lot of cases. If he was convicted, however, it would strongly support her contract case but wouldn’t guarantee her a way out of the contract. People don’t surrender their businesses when they’re convicted of a crime. If Dr. Luke has someone who can take the reigns while he was in prison, Kesha would still be bound to that company contractually.

      The U.S. justice system is a mess in so many ways. It’s disgusting.

  9. Thumb up 0

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    Wow. Thank you for putting this out– my friends and I have been discussing this non-stop and this was really clarifying. This is absolutely horrible. Wouldn’t it make a difference though if he was tried and convicted in criminal court (even though that in and of itself may not happen)?

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      I think I remember someone who tried to switch labels back in the 90’s tried that by releasing a couple live albums or a greatest hits and the label refused to release the albums or recognize them as fulfilling the contract. I guess it would depend on ow her contract is worded regarding who has final control of releasing content.

  10. Thumb up 0

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    I don’t understand why his conduct isn’t a breach of his fiduciary duty (or duty of good faith and fair dealing, at a minimum) toward Kesha, which gives her grounds for a breach of contract action.

  11. Thumb up 0

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    I don’t know much about this situation, but I have to admit….I still don’t get it. Why can’t some equitable doctrine like fraudulent inducement, unconscionability, or good faith (all of which potentially apply here) void the contract? The law is not this perfectly rigid. One of the first things law students learn in Contracts is a good deal is great, but a great deal is bad. Make a contract too good and it won’t be enforced.

    I hate to flip the onus to the Judge, but “precedent” seems like a cop out to me. State trial court judges are not in the business of creating binding precedent. It’s not hard to cite the incredibly unique circumstances and do away with the contract. Lawyers in future contracts disputes would do what they do anyway: analogize or distinguish those facts. If things went truly bonkers and entertainment contracts started disintegrating willy nilly because of the “precedent” and all of Los Angeles began to crumble in to the sea, the appeals court could shut down that line of reasoning right quick. And besides, no precedent was necessary: grant the PI for likelihood to succeed on the merits and then the producer would be insane not to settle the matter by allowing Sony or Kesha to buy out the contract — he would lose everything to proceed. Then there’s no need for any decision at all on the enforceability of this contract, let alone precedent.

    Of course, unless there is something else to this story that hasn’t seen the light of day.

  12. Thumb up 0

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    Can we PLEASE stop calling Dr Luke her abuser, her attacker, and the like. WTH do we get off convicting someone without a trial. IF Kesha wanted to get away from Dr Luke, she should have taken DR LUKE to trial, not Sony. You didn’t need to talk to an entertainment lawyer to get the story, it’s on the internet. Kesha signed with Luke in 2005, she then worked with DAS from 2006-2009 and had practically NO contact with her alleged abuser. In 2009 She sued DAS to break contract and go back to Luke (why if he had abused her?) DAS sued Luke & Kesha in 2011 for her success with RCA. Kesha at any time could have taken Luke to criminal court for rape, instead she swore in court that Luke harmed her in no way – no drugs, no physical abuse. In 2013 she sued Luke to get out of her contract & again did not say anything about abuse, only a restrictive contract. She lost. Now in 2014-16 she’s saying it’s abuse, date rape, and drugs – is she suing Luke, no she’s suing SONY. Sony DOES NOT have a contract with Kesha and can not do a thing. Kesha wanted out of the DAS contract because they were not doing anything for her career, she wanted out of Luke’s because she was not getting anywhere in her career. MAYBE this is one last ditch effort to make her career. Look at the FACTS; EVERYONE & their brother wants to musically help her, from giving money to working with her on an album. Luke CAN NOT win because if he lets her out of the contract, he admits guilt. No one wants to believe the man in this could possibly be innocent, and Kesha full well knows there is NO way to prove innocence or guilt, so she wins. Luke will probably be forced to let Kesha go; T Swift, Adele, Jack A, and the rest that have hung Luke will release an album with her and ALL the people that have sided with Kesha will buy it. It will probably be the most successful album of that year, probably be nominated and possibly win a grammy. She may also get picked up to write or record for movies, commercials, whatever, because once Kesha is free, she’ll be the name to use. Kesha will have won, and NO ONE will ever know is it the story of a spin doctor, or the truth. I’m not being harsh on sexual abuse, I’m not being sarcastic. This is pretty much how it will go down. If Kesha wanted to get out of her contract with Luke, she should have taken HIM to court, not Sony. She has said several times that her career is failing, and that this is her last shot. Kesha reportedly has an IQ of 140, you want to tell me that she’s not smart enough to know who to sue, and what court rape belongs in?

      • Thumb up 0

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        Well as a rape survivor myself I too am kind of curious why she isn’t pressing him with a rape charge (maybe she knows there is know way to prove it) while suing a company that can’t get her out of her contract.

        And it is clear she just wants out of her contract there has been no mention of her pressing charges on Dr. Luke for the rape beef. Sooooooooo… that does seem odd…

        But really Kesha knows you don’t need to press charges in this day and age with viral click bait you just claim it publicly and everyone believes you and it ruins the life of those who get the finger pointed at them. And that is far quicker and cheaper than a court battle. So smart move on her part in that regard. In terms of her contract she should sue Goldtwatt, shouldn’t she.

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      I kind of agree with you on the guilty until proven innocent and I’m a bloody rape survivor.

      I have question to as to why she isn’t pressing charge on Dr. Luke but just wants out of her contract. That doesn’t make sense. If he rape you press charges on him and you can still sue to get out of your contract.

  13. Thumb up 0

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    Let me say it this way 2 singers one company and the contract the company has and showed suport for the artist. The contract personal made a simple case into a nightmare for both,causing personal damage while they sit and enjoy the profits they get from there artist to protect them. The company is only forced to do what the contract peronal say. The contract is worded almost to sound n feel its has military values. Its all a sale tactic they dont live the code they use it to look good.

  14. Thumb up 0

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    So I’m a curious as I’ve said elsewhere why isn’t she taking Dr. Luke to court on a rape beef while also fighting to get out of her contract. Seems odd to let this guy walk free. If he raped her.

    But I guess it doesn’t matter the pricks career is over just being mentioned in the same phrase with rape. I don’t know if he did it, I’m not a guilty until proven innocent type. I just know that record producers on the whole are scumbags.

    And suing Sony won’t help obviously but I do think it opens up a can of worms about contracts and who owns what that if it stays in the spotlight Sony will have to navigate and deal with and it could get messy.

    • Thumb up 1

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      His career probably isn’t over and probably wouldn’t be even if he was convicted – see the rumors that circulated about Bill Cosby for YEARS, Chris Brown’s abusive and publicly documented abusive behavior towards Rihanna, and the fascination/love for rapey lyrics a la Robin Thicke.

  15. Thumb up 0

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    Contracts are not stone tablets from God, or laws of nature discovered by scientists, they are pieces of paper. The government breaks up contracts all the time…. like, oh, I don’t know, during the Civil War when Abraham Lincoln, the founder of the Republican Party, declared tens of millions of property contracts to be completely invalid when he made the Emancipation Proclamation.

    Our very country is founded on the notion of breaking contracts… specifically the contracts that the British East India company had to be the exclusive monopolistic supplier of Tea to the American Colonies.

    Let’s not forget 2008, when the most conservative, pro-business presidential administration in history decided contracts between financial institutions didn’t matter, and bailed them out for 2 trillion dollars.

    Contracts are invalid if they are done under Duress. You can’t enter into a contract that is illegal, for example you can’t agree to enter into a contract with someone to murder yourself. Then there is Misrepresentation, Nondisclosure, Undue Influence, Unconscionability, Public Policy, and a bunch of other words that basically mean “You can’t throw out common sense just because of contract law”. Lawyers should be good at arguing about all of these points not in trying to explain how the unacceptable is somehow inevitable. (And it is really weird how many of these articles I see where some lawyer tries to explain why Luke is the only one who can do anything… as if he is our Emperor or something)

    Law was invented by people to maintain a stable and just society so that we as a species could move away from brute force and violence as problem solving methods…. the law was not made so that one person could manipulate it to exploit and abuse another.

  16. Thumb up 0

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    Coming back to this article and hoping maybe there’s an update…. So Sony is (allegedly) ending their deal with Dr Luke because this whole thing had been a PR nightmare for them. BUT if I understand correctly from this article, that still won’t actually help Kesha because her contract is still held by Kemosabe. Is that about right? Follow-up for the confused non-lawyer folk please!

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      Essentially, yeah – to end their contract early, there will probably be a lot of negotiating, and ideally Sony will offer Dr Luke a lot of money to buy out Kesha and his other artists in exchange for him disappearing. It might be a while before we know anything about the terms of the agreement, but the annoying thing is that Dr Luke is still going to make a bunch of money no matter what happens.

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