Not interesting: Kesha is suing a record company to get out of a contract signed when she was unknown.
Interesting: the “why I should win this contract dispute” argument features the kind of abuse allegations that are conventional in American’s divorce litigation system (see “The Domestic Violence Parallel Track” and the litigation chapter for an overview; see the Colorado chapter for example attorneys’ perspective on how commonly the abuse angle is worked). This Hollywood Reporter article gives some of the details of what a court is supposed to try to untangle.
Family law seemed like a bit of an outlier in American litigation. According to the older attorneys we interviewed, the pre-no-fault system featured lurid evidence regarding adultery and, now that most of the cash goes with winning custody of children, lurid testimony regarding child abuse has become standard in the no-fault age. But I’m wondering if, now that women are more commonly parties to contract, this is the future of contract law disputes as well. The dull-as-paint-drying discussions about legal fine print will be overshadowed by testimony about what happened in a dark bedroom.
According to this 2015 Billboard article, California law has recently been changed in this area:
If the two had contracted with each other more recently rather than a decade ago when Kesha was 18, the result might have been different. Kesha’s attorneys told the California judge that the state laws on sexual harassment and gender violence have been amended to include anti-waiver provisions, meaning that no contract can foreclose a grievance under the statutes, but Scheper responds that the provisions only apply to agreements made after January 1 of this year.
Fortune magazine covers the case more comprehensively but leaves out an analysis of the extent to which Kesha would profit financially from being free to sell her future recordings to the highest bidder.
Readers: What do you think? So far it doesn’t seem to have won the day for Kesha, but will this angle be used by more women involved in contract disputes?
It will be used to the extent that it proves successful in other cases. As you note, the judge in the Kesha case did not seem to be impressed by this angle and refused to see the dispute as anything but a contractual dispute between two very rich and well-lawyered parties who had entered into a heavily negotiated contract. People inside the family-law bubble apparently fall for this stuff but the civil judge apparently saw thru the rather obvious attempt to break an unbreakable contract by hyping up emotional/romantic issues that were really irrelevant to a contract dispute.
It should be noted that the recent rulings were made by a judge alone because they concerned an injunction sought by Kesha’s lawyers to prevent Sony from enforcing its contract. This was always a long shot because the standard of “irreparable harm” is a high one. In a full trial, Kesha may get to weep before a jury and her show may play better to them than to a judge.
This is not a typical contract dispute. The “you really need us when you’re a nobody, so we own you when you are famous” contract is part of the rotting carcass of the music industry’s dead business model. Now that “talent” doesn’t require extensive resources to get exposure and distribution, people won’t be expecting contracts with a large time component. (Note that nobody is really in a position to do this to Taylor Swift) Contracts for this sort of thing will have time windows and incentives arranged so that they’re only valuable as long as they remain so for all parties involved.
How hard do you think it is to get out of a residential lease if your landlord starts letting himself in and stealing your underwear?
Can the Ellen Pao case be seen as an event with similar characteristics?
How hard do you think it is to get out of a residential lease if your landlord starts letting himself in and stealing your underwear?
1. Check “Right to enter clause”. If it’s not there, sue under a contract law.
2. If proven stealing, sue a criminal case