THE KESHA CASE AND PRELIMINARY INJUNCTIONS
This week the Internet blew up over the decision handed down in court involving singer Kesha, Sony Music, and her producer, Dr. Luke, whose real name is Lukasz Gottwald.
Kesha sought an injunction to end her contract with Sony early because she asserts her producer, Dr. Luke, repeatedly abused her, sexually and mentally, and continuing to be forced to work with him would do irreparable harm. Dr. Luke denies the allegations. The court ruled against Kesha by denying her request for the preliminary injunction, potentially requiring her to continue working with her alleged abuser.
From the point of view of forcing a victim to work with her abuser, this outrage is more than justified. However, from a legal standpoint, we should all take a collective breath and put things into perspective.
What Is A Preliminary Injunction?
A preliminary injunction is a temporary order made by a court at the request of one party that prevents the other party from pursuing a particular course of conduct until the conclusion of a trial. A preliminary injunction is just that, preliminary. It is not a final verdict and in this example, Kesha’s case has not been dismissed. What it means is that Kesha wanted the relief she seeks in this case to occur before the hearing and final verdict. The court would not grant that at this time.
Because of the abuse allegations and because of the distress she claims, Kesha has been unable to record. As a pop artist whose career depends on her timely trending, this delay may be financially difficult and may significantly affect her career. This explains why she asked the court for the injunction. However, losing a preliminary injunction is not uncommon. In fact, preliminary injunctions are very hard to win because they are asking the court to enforce the result of a verdict before the court has made the verdict.
When Are Preliminary Injunctions Granted?
In order for a preliminary injunction to be granted, several requirements need to be met. One, there has to be a likelihood that the case will be successful. Since the case is ongoing and the facts presented to the judge are incomplete at this stage, success is still hard to gauge. Next, there needs to be evidence of irreparable harm. At this point, that cannot be proven. There also needs to be no other recourse. Since Sony has said that Kesha may work with another producer, thereby distancing her from Dr. Luke, the court sees this as a workable alternative. On this issue, Kesha claims that working with another producer will be a problem at Sony and they won’t promote her as heavily as a result. However, the court did not find this to be proven at this time.
This is a civil contract case with criminal issues mixed in; it is complicated and difficult to navigate. The bottom line is that the court did not find there was enough evidence for Kesha to break contract at this time. Other information may emerge before the trial and final verdict. Keep in mind that the discovery period for this case continues through January of 2017 and the actual trial won’t begin until well after that.
What does this mean for victims of crime?
This case is a great sounding board for issues related to contracts and abuse. It is an opportunity to point out the difficulty of proving certain kinds of abuse in court and how we may approach that differently to help victims. It may also be a chance to discuss standard industry contracts when they involve someone who is very young (Kesha was 18 when she signed on) or someone who is eventually compromised by those they work with. Contract issues are worth examining more closely since this isn’t anywhere near the first time Sony has fought artists in court over their contracts; they have also had disputes with Prince, George Michael, Dixie Chicks and others. But to characterize it as a major blow to abuse victims or a betrayal of the courts and the system towards women is an exaggeration; it is still just a single setback for Kesha. The judge had to work with the facts of the case in front of her, and based on those facts, an early ruling could not be granted.
Kesha still has an opportunity to get the result she wants and has received an outpouring of emotional and financial support from fans and other pop stars; and any way you slice it, it’s bad PR for Sony. While she is dealing with very real trauma and financial loss by the delay, her day in court is still to come.