Kesha is at the center of a legal decision that could change workers' rights in this country.
Kesha—born Kesha Rose Sebert—is suing both her producer Lukasz "Dr. Luke" Gottwald for allegedly abusing her, as well as Sony, her record company, which she claims knew of the abuse and forced her to continue working with him. The hearing in her lawsuit against Dr. Luke is tomorrow, and the results could be far-reaching.
In her original complaint, Kesha's lawyers allege that "Dr. Luke sexually, physically, and verbally abused Ms. Sebert for over a decade in order to make her feel completely worthless and maintain complete control over her life." According to her contract with Sony, Kesha is obligated to make four more records with Dr. Luke, who founded Kamosabe records, a division of Sony. "Kesha now faces an abysmal decision: work with her alleged abuser ... or idly and passively wait as her career tick-tocks away," according to a legal brief filed by her attorney.
Kesha's case is unprecedented. Many industries must grapple with issues of sexism and harassment, but Kesha's case is further complicated by the potential for abuse that's built into the structure of music industry contracts. The vast majority of artists sign contracts with "options" for the record company, meaning the artist signs on to make an initial record with the potential for more if the record company chooses to invoke one of these options. "That very option structure puts the company and representatives of the company in a position of really truly awesome power," says Matt Stahl, a professor at the University of Western Ontario and author of the book Unfree Masters: Recording Artists and the Politics of Work. "By signing a contract, Kesha and every other major label artist have basically consigned control of their labor and image to a company for a period of time that's not specified."
"This is the closest we've come to a real challenge to this very stable, long-standing, legally supported relationship of domination in a long time."
Businesses like Uber have precipitated the rise of the gig economy, which leaves people in a liminal space—not quite employees, they're potentially more vulnerable to exploitation. "Only employees are protected against sex discrimination, only employees are protected against sexual harassment, only employees have the right to form a union and bargain collectively," says Catherine Fisk, an employment law expert and professor at the University of California–Irvine.
In many ways, musicians are even more vulnerable, and the music industry has a history of systematically controlling and underpaying its artists, according to Stahl. The debate over labor rights traces back to California Labor Code 2855, a law designed to protect contract employees from abuse by setting a time limit on employment contracts. Olivia Newton-John used the obscure law to get out of her recording contract with MCA records in the 1970s, claiming that musicians were just glorified contract employees. Worried that big-name artists would be empowered to leave their contracts, the Recording Industry Association of America lobbied the California legislature and in 1987 the code was amended to protect everyone but "those who render personal service in the production of phonorecords." In other words, recording artists.
This law set the new industry standard. If an artist wants to get out of a contract, he or she must pay the record company the estimated profit it would have made on each individual album listed as an "option" in the contract. "The argument that record companies have always made is 'We spent a ton of money looking for talent, developing talent, promoting these performers—and they are investments,'" Fisk says. For someone like Kesha, whose work has gone platinum, this investment is significant.
Part of what makes Kesha's case rare is how far she's taken it. Record labels almost always settle. "Even if [record companies] win the risk is great and once a trial gets started then there's publicity and there are documents in the public record," Stahl says. "My strong sense is that nobody would think it's worth the risk."
Compounding the history of economic exploitation, Kesha's claims come at a moment where women are beginning to speak out more about abuse. Recently, a number of female musicians and executives came out with allegations against Heathcliff Berru, the founder of a successful music public relations firm. It started when a musician tweeted about Berru assaulting her, and snowballed when other women on Twitter began to chime in with other own stories of abuse. Berru has since left his job.
Beth Martinez, owner of the public relations firm Danger Village and one of the women who accused Berru of assault, says that the culture of sexism makes it hard for women to negotiate for things like fair pay. "When someone touches you without your permission, even if it's just an ass grab, that makes you feel a loss of power and when you feel that loss of power you feel shamed, and when you feel shame, you feel like you can't speak up about anything," she says.
Kesha met Dr. Luke was she was 17, in an industry with little female leadership and with contracts designed to keep artists from advocating for themselves. On Instagram, she writes: "I had to tell the truth. So the outcome will be what it will be. There's nothing left I can do. It's just so scary to have zero control in your fate."
The day before the hearings, Kesha's waiting for the kind of legal action recording artists rarely get to pursue, within a legal system that is unkind to both rape victims and artists. But she's stuck to her story. "Whether or not these allegations turn out to have merit, this is the closest we've come to a real challenge to this very stable, long-standing, legally supported relationship of domination in a long time," Stahl says. "She may be able to take it further than anyone has for a very long time."