THE BATTLE BETWEEN KESHA & HER PRODUCER FROM A LEGAL PERSPECTIVE

Recording artists Kesha arrives to the premiere of "Planes: Fire & Rescue" at the El Capitan Theater in the Hollywood section of Los Angeles, California, July 15, 2014.  REUTERS/David McNew (UNITED STATES - Tags: ENTERTAINMENT) - RTR3YTOB

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The legal battle between U.S. singer /songwriter Kesha and her long-time producer Dr Luke is full of sordid stuff — rape, emotional blackmail and financial abuse. #FreeKesha lit up Twitter when a New York judge recently refused to release her from her recording contracts.

But to understand the legal perspective, it is important to remember that this is not a criminal trial. It is a contract case. Courts generally try to preserve the enforceability of agreements that people make between themselves, however ill-advised. They will not nanny unless something is terribly wrong.

Is something terribly wrong? That is a hard question that requires balancing legal theory and economic reality. The results are not always satisfying.


The Facts

In 2005 Kesha, then barely 18, entered into a series of agreements with Kasz Money, Inc., Kemosabe Records, LLC , Prescription Songs, LLC and ultimately Sony Music to make records.

In a lawsuit filed in California in 2014, she alleges that she was the victim of gross abuse and asked the court to:

  • void the contracts;
  • permit her to make agreements with other recording companies free of interference; and
  • award money damages.

No matter how disturbing her allegations, in the eyes of the law it’s just a contract case.


When Can a Contract be Set Aside?

Courts may nullify or modify a contract because of circumstances that exist at the time the agreement is made or because of things that happen later.

If a party’s consent to the terms of an agreement is not genuine because it was induced by fraud, duress or undue influence, courts may throw it out.

If someone lacks the mental capacity to understand the terms of an agreement (as might be the case with dementia, psychosis or intellectual disability) when the contract is made, courts may similarly declare it void.

Minors may ask that a contract be voided. It is important to note that, although very young, Kesha was not legally a minor at the time she made these agreements.

Contracts to do something illegal or something that becomes illegal or impossible after the agreement is made cannot be enforced. In rare circumstances, courts will also consider whether performance has become commercially impracticable.

Whether any of the allegations made by Kesha fit within these categories is difficult to say because the evidence has yet to be heard by a jury, as she requested. This was likely why the New York court was reluctant to release her from her contract prior to trial.


Does Kesha Have to Work for an Abuser?

This is why people care.

Although the legal answer is “no,” the practical situation is muddier.

Slavery has been illegal in the United States for 150 years. The Thirteenth Amendment to the U.S. Constitution protects Kesha from being legally compelled to make more albums. If she refuses, however, she may be liable for breach of contract.

Would it kill her career?

If she continues to record but with a different producer, as Sony has offered, she fears that her albums will not be promoted. If she refuses, other record labels may be reluctant to pick her up fearing legal retribution.

Is she already untouchable for exercising her legal rights? That’s the ugly question.


Twitter says that Kesha is not alone. If you have questions about your contractual obligations or the circumstances under which a contract may be nullified, please contact an attorney at Owen Hodge Lawyers at 1800 780 770.

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