Some reporting questions for the Kesha court case

UPDATES: Since I wrote this a few questions and developments have come up. First: I am not a lawyer, let alone an entertainment lawyer, so this does not so much delve into the legal questions of the case. (My understanding is that the proof required for this sort of injunction is difficult to obtain for anyone. Read more here.) Second: As widely reported, Taylor Swift donated $250,000 to Kesha. Two things to keep in mind there: 1) Swift’s rep’s statement, as expected, is hugely worked over on all fronts; you’ve got “in a show of support” right up front to thwart accusations that Swift isn’t supporting Kesha, but the rest of the statement only mentions “trying times”; 2) $250,000, while a lot of money to you and I, is a drop in the bucket compared to some of the sums below, so no, this isn’t going to buy Kesha out of her contract or even come close.

The key quote from the Kesha/Dr. Luke court battle, which has just taken a dispiriting turn, is this, by judge Shirley Kornreich: “My instinct is to do the commercially reasonable thing.” A lot has been written, rightly, about what a chilling statement this is, and there’s been a lot of talk about how best to support Kesha.

Some people have suggested boycotting Sony, which is likely to achieve precisely nothing even if one manages to boycott everything in the music industry with Sony’s investment or involvement (good luck). Some people have advised pressuring artists, and more artists have spoken in support of Kesha than I thought. (Kelly Clarkson, in particular, stands out, given that she previously took on Clive Davis and arguably helped make Luke famous. Also, there were a lot of names I was expecting to see but one of them was not Iggy Azalea. Iggy Azalea!)

Nevertheless, as messy as artists’ public statements might look in celebrityland, public statements are never off-the-cuff. There are likely people right now asking things like “does it suit _____’s brand to stand with Kesha?” which is horrible but true. More pertinently, it’s virtually guaranteed that they’re under a huge amount of restrictions both formal — the existence of this court case in the first place is surely a huge deterrent for anyone with a nondisparagement clause — and informal. It’s telling that a great deal of support comes from artists with less to lose, phrased in vague, legally benign “sending love” terms. It’s perhaps even more telling that the bulk of this pressure is being placed on (often female) artists, who only have symbolic power if that, rather than (often male) managers and executives, and the apparatus that protects people like Dr. Luke.

So what does “commercially reasonable” even mean? Facts are scant. According to New York Daily News, Kesha’s contract, though renegotiated several times, was for six albums, four of which remain (this has been misreported in several outlets). According to court arguments, Dr. Luke invested $60 million in Kesha’s career; obviously, it’s hard to fact-check that figure. (An $11 million figure was floating around the Internet a while back, though it seems to originate from a TMZ story cited by low-quality aggregators.) According to all known sources — “insiders” from Billboard, emails from the Sony leak (yes, I know, but in my moral sorting, investigating complicity in abuse is more important than retroactively protecting privacy of business deals), Sony pretty much just wants this all to go away, which itself is pretty unfortunate. But why double down so much on Dr. Luke?

This is a question. I do not know the answers. I do not have inside information, or anything that can’t be found with a few Google searches (perhaps more than a few, because the constant flow of Internet flotsam means there’s a lot to sort through.) Some of these questions may come off rather silly to people who do have answers. Nevertheless:

  • The big one: In 2011 Dr. Luke signed a 5-year exclusivity contract with Sony. At the time, Sony Music CEO Doug Morris, who is still CEO and is likely to remain CEO for some time, referred to Luke as his “new Jimmy Iovine.” It’s quite the comparison, and one Morris likes to make. Assuming the contract hasn’t been renegotiated somehow, it ends this year. What happens then?
  • A major factor in the above: Sony’s music division has been doing fairly well financially — see the company’s 2014 20-F filing, but keep in mind the caveats therein about the unpredictability of music profits, and the fact that Sony is a huge entity that encompasses a lot more than music— but Dr. Luke’s record label Kemosabe, according to reports, is not doing so well. Despite the near-fawning characterization in the press of Luke as an infallible hitmaker, the names that show up in news stories as Luke collaborators — Britney, Rihanna, the like — haven’t worked with him in ages, and nowadays Luke mostly works with Kemosabe artists. Kemosabe’s biggest non-Kesha hits are a handful of minor hits by Elliphant, Zara Larsson, Lunchmoney Lewis, R. City and Becky G. According to Billboard sources Kemosabe “has [Miley] Cyrus to thank for being in the black”; in 2014 Billboard reported that Cyrus had dropped Luke for her next album (may or may not be Dead Petz; like everything, it’s hard to say). Otherwise, its most successful artist by an order of magnitude is… Kesha. This is perhaps the crux of Sony’s argument. Dr. Luke’s manager Mark Beaven claims Kemosabe’s seeming underperformance is mostly a “pattern” or cyclical, and more pertinently, that Luke’s near-total focus on his Kemosabe acts was a promise to Morris.
  • This isn’t to say that Luke’s been doing nothing else, the impression one might get from browsing Wikipedia. The aforementioned exclusivity deal has enough loopholes to, for instance, allow Luke to produce for Katy Perry among others. He’s also been making some plays for urban radio, producing tracks for Usher (“I Don’t Mind”) and Ne-Yo (“She Knows”) and signing Juicy J, who has an album due this year with Luke’s involvement. (Given that the same article quotes Juicy J as saying, of artists who boycotted working with Chris Brown, “That’s not smart. Chris Brown is a star. He’s a genius. Anybody should want to work with him,” I doubt this will change.)
  • Luke has also made moves toward country; Dr. Luke’s publishing company Prescription Songs, in 2013, signed a joint venture with the publishing arm of Scott Borchetta’s Big Machine Records. Though she’s not involved with the publishing section, Borchetta’s flagship artist is Taylor Swift. (If you’re wondering why Swift hasn’t said anything, this may well be a factor.) Artists with this joint venture include RaeLynn and Who Is Fancy. Other joint ventures exist with Diplo’s Mad Decent and Ester Dean.
  • As several people including myself have noted, Dr. Luke no longer seems to work as frequently with mentor Max Martin or protege Benny Blanco — Cirkut, his other protege, is his primary collaborator. As much as I’d love to imagine this is due to some principled cutting of ties — Martin in particular has stuck with other colleagues for more than a decade — the actual reason is more likely to be contractual. (Blanco, for what it’s worth, appears to still be with Prescription Songs, and also is a guy who has written the words “one time i slapped this girl’s ass cheeks as a snare drum,” so… there’s that.)
  • This shit: “The often-fractious relationship between Kesha and Dr. Luke has been explored in court before. In 2010, both were defendants in a lawsuit brought by DAS Communications, which formerly managed the pop singer. According to papers in that litigation, Dr. Luke might have discovered Kesha as a Nashville, Tenn., teenager a decade ago, but she quickly thereafter signed a rep deal with DAS’ David Sonenberg, who came close to bringing Kesha to Warner Bros. Records. As early as 2005, Kesha was speaking 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,’ according to papers filed by DAS.” There’s more at the link, and I’m honestly not quite sure what to make of it; nevertheless, it’s… there. (Worth noting: Kesha was roughly 18 in 2005.)
  • Probably unrelated, probably pertinent: Sony just launched a label and joint venture with Cee-Lo Green, who pleaded guilty in 2014 to drugging a woman’s drink.

These are questions to which the answers are complicated and perhaps deliberately obfuscated; they are questions it’s probably going to be hard to get people to answer off the record. It’s difficult to do reporting on stories involving celebrities. Business reporting — and the music industry is a business — requires institutional knowledge a lot of publications don’t have, particularly those geared more toward aggregation-style “music news.” (More cynically, this sort of reporting is a lot more likely to piss off businesspeople and PRs who work with publications.) But they are questions to which the answers say a lot about how entrenched the industry’s support for people like Luke is. Standing with Kesha is one thing. It’s another to confront and name the people and forces Kesha is standing against.