since she was denied an injunction against the man she accuses of rape, New York Supreme Court Justice Shirley Kornreich on Tuesday (March 21) refused her attempt at amended counterclaims.
Dr. Luke is
suing her for smearing him through allegations of sexual abuse. Kesha initially
attempted to escape her contract by claiming a "hate crime," but in
April 2016, the judge rejected those claims.
In late
January, Kesha tried again.
"You can
get a divorce from an abusive spouse," began her proposed countersuit.
"You can dissolve a partnership if the relationship becomes irreconcilable.
The same opportunity -- to be liberated from the physical, emotional, and
financial bondage of a destructive relationship -- should be available to a
recording artist."
Usually,
judges are fairly permissive by allowing amended complaints, but not this time.
Specifically,
Kesha tried to assert that Dr. Luke's company breached contract by refusing to
send accounting statements and pay her royalties. Kesha alleged that he wanted
to leave her penniless and that he wouldn't sign off on a new album. In
response, Dr. Luke's lawyers alleged that it was Kesha who actually owed $1.3
million in royalties and further, that she failed to provide notice and a
30-day cure period.
Judge
Kornreich agrees with Dr. Luke.
"Here,
Kesha made no showing that it would have been futile to send an appropriate
notice or that she was prevented from doing so," writes the judge in an
opinion. "Thus, Kesha may not assert a counterclaim for breach of the
Prescription Agreement."
Kornreich also
rejects Kesha's attempt to assert that Dr. Luke breached the covenant of good
faith and fair dealing. Since the judge has determined that Kesha did not
perform under her recording agreement and failed to give notice under her
songwriting agreement, the judge says she "cannot maintain a breach of
contract claim based on the implied covenant" in those deals.
The judge then
goes even further when analyzing Kesha's bid to escape her contractual
situation.
"It is
speculative, not justiciable, whether Sony's contract is ending and whether it
will be able to assist after this month," responds the judge.
"Furthermore, KMI [Dr. Luke's company] may not choose to exercise its
options for future albums after the third is released. Finally, with respect to
the Prescription Agreement, signed in November 2008, Gottwald's allegedly
abusive behavior was foreseeable."
Finally,
represented by Daniel Petrocelli at O'Melveny &
Myers, Kesha boldly attempted to assert the so-called Seven
Year Rule on personal service contracts under California law in a New York
court.
"To
protect young, newly discovered recording artists from this precise manner of
exploitation in quasi-lifetime un-severable professional relationships, California
labor law requires all music contracts to end within seven years of
execution," stated her proposed counterclaim.
But this novel
effort also fails because Kornreich decides to honor a New York
choice-of-law provision in the agreements.
"The parties'
choice of New York law should be enforced, unless the public policy of another
jurisdiction has an overriding concern so strong that it trumps New York's
strong public policy in maintaining and fostering its undisputed status as the
preeminent commercial and financial nerve center of the world," writes the
judge. "Turning to the case at bar, the parties to the Gottwald Agreements
could have provided that they would terminate in seven years. The parties,
represented by sophisticated counsel, chose not to put such an explicit
provision into the agreements. Thus, their choice of law should be enforced.
Moreover, the single 1944 case cited by Kesha that mentions California's public
policy in enacting 2855 does not demonstrate an overriding public interest that
is materially greater than New York's interest in enforcing the parties' choice
of New York law."
Should this
latter part go up on appeal, it would be an important issue that would impact
all artists.
This
article was originally published by The Hollywood Reporter.
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