By Allen Smith
Ke$ha – JD Photography
At-will employment is sometimes held up as a heartless system, but in principle it at least allows either the employer or the employee to walk away from an employment relationship instantaneously.
Pop star Kesha is involved in a contractual relationship between a record producer and Sony Music Entertainment that requires her to stay for the length of the contract. Famous for the hit song “Tik Tok, Kesha is embroiled in litigation against producer Lukasz “Dr. Luke” Gottwald, trying to get out of a recording contract because of alleged sexual, physical, verbal and emotional abuse by the producer.
But even employment contracts can prove easier to get out of than recording contracts, employment law attorneys say.
Court Rules Against Kesha
A court ruled on Feb. 19 that Kesha could not be released from her recording contract. The singer, whose full name is Kesha Rose Sebert, had sought a preliminary injunction that would have blocked Sony and Dr. Luke from seeking damages if she released songs outside her contract, but the injunction was denied, The New York Times reported.
Christine Lepera, an attorney for Dr. Luke who practices with Mitchell, Silberberg & Knupp in New York City, released a statement saying that the New York County Supreme Court “found that Kesha is already ‘free’ to record and release music without working with Dr. Luke as a producer if she doesn’t want to. Any claim that she isn’t ‘free’ is a myth.” She said that the court’s decision “made it clear Kesha’s allegations of purported abuse were unconvincing and that she had no basis to void record contracts and copyrights.”
Lepera added, “The court also noted multiple times that her vague abuse allegations were devoid of factual detail, and that there was no evidence, whether from doctors or anyone else, to support them.”
Employment Contracts vs. Recording Contracts
While most employment relationships stateside are at-will (which is not true abroad), U.S. employers sometimes use employment contracts, which differ from recording contracts.
“Unlike employment contracts, contracts in the music industry, contracts for hire, are the equivalent of independent contractor agreements,” explained Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City. “In effect, they are production contracts. Artists may have to produce a certain amount of ‘product’ in specified periods of time. Depending on bargaining power, the agreements can be exclusive or nonexclusive from the artist’s perspective.”
Furthermore, Segal said, “The agreements vary in terms of the right to terminate. Some agreements provide the artist or production company with the rights to terminate. It depends on bargaining power. Looking at this case, I would think it would be hard to argue that an allegation of harassment alone is enough for the artist to get out. If that were the case, anyone who wanted out could just claim harassment.”
Instead, he said Kesha will have to win on the merits of the harassment claim. If she prevails on the claim, that should give her the right to get out of the agreement, he said.
“Kesha has a recording contract, which is different from an employment agreement,” agreed David Barron, an attorney with Cozen O’Connor in Houston. “As a personal services contract, it is difficult for Kesha to avoid performance of her commitment to make songs with Dr. Luke, whereas most employment contracts allow an employee to resign.”
Barron said, “Moreover, most states, as a matter of law, will not force an individual to work under a standard employment agreement, but will require performance of a personal services contract. Put another way, a teacher or executive will likely not be forced to continue employment, but a musician or star running back could be held to perform under a contract.”
Standard employment contracts are prevalent among executives, highly paid salespeople, doctors and other sought-after professionals, Barron noted.
Kesha’s attempts to get out of her recording contract have resulted in a groundswell of support on Twitter from other artists, including Taylor Swift and Lady Gaga.
Employees leading Twitter insurrections probably will not have such heavy-hitters coming to bat for them.
Still, Leonard Rubin, an attorney with LRubinLaw in Chicago, said that companies that can afford it “should, as soon as a social media problem surfaces, obtain a good public relations person to help deal with not only public reaction, but employee reaction as well.” He added, “A legal answer to a situation is usually not enough to salvage what the public sees as derogatory.”
Sony Music declined to comment for this article.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.