Kesha was doomed to fail

The Dr. Luke vs. Kesha battle is in full swing (and yes, she changed her name back to the regular spelling while she was in rehab). The latest installment of the legal battle rooted in sexual assault allegations against Dr. Luke (Lukasz Gottwald) features Judge Shirley Kornreich denying Kesha’s request for a temporary injunction. Just to clarify, the injunction in this case is a restraining order — Kesha was requesting that the man who allegedly coerced her into dropping out of high school, drugged and raped her, emotionally abused her until she developed an eating disorder and went into rehab, and is now claiming Kesha is making all of this up just to get out of her contract, stay away from her.

Even after reading all 94 pages of the court proceedings for the injunction the entire legal situation is still confusing and unsettling. The court proceedings detail a pretty weak legal defense for Kesha and a strangely dismissive testimony from Dr. Luke’s representative. (Note: he’s not actually a doctor.) The most effective lawyer apparently was Sony’s representative, who was insistent that the interests of Sony are to maintain Dr. Luke’s position as a profit-generating machine, and, oh yeah, also to protect Kesha, I guess.

Hidden in defensive rhetoric from Sony and Dr. Luke’s lawyers was a vague offer to allow Kesha to work with a different producer, and as Kesha’s attorney rightly pointed out, is a suggestion was both unclear and unenforceable. Sony has no incentive to carry out their own loose suggestion because no profit-making strategy would allow an artist to switch producers when her initial producer creates multi-million-dollar hits. Ultimately, Kesha is definitely not free. She’s stuck working for a company that sides with and protects her alleged abuser, who is still legally permitted to produce at least six of Kesha’s songs in any upcoming album, while profiting from any of the work she does.

It is important to have a basic understanding of how contract law works. There needs to be a significant breach of the contract for it to be invalidated, which dictates that the burden of proof was overwhelmingly placed on Kesha. Secondarily, Kesha had to prove that she would suffer ‘irreparable harm’ if she would have to continue to stay within the bounds of her contract, which is pretty difficult to prove anytime, especially when you’re fighting against one of the most powerful companies in the music industry. Sony and Dr. Luke’s strategy was crafty and successful, discrediting Kesha’s story and assuring everyone that they will totally still support Kesha, they won’t make any legal promises, but you should take their word for it.

The reason that this strategy works so well is because of the social environment and context that this situation is unfolding in. American consumer culture collectively gravitates towards questioning the credibility of Kesha’s claims even though an estimated 2-8 percent of rapes are ever provably false, and Kesha stands to gain very little from falsely accusing; pop stars have a very replaceable status within the music industry, along with the social backlash that a person receives from speaking up about assault, regardless of if it’s true.

Even if you think Kesha is lying, at this point it doesn’t matter because the decision has been made. Sony’s representative appeared to be much more concerned about the potential harm done to contractual relationships instead of the actual harm alleged by Kesha.

Written by Kathryn Casello