Free Kesha, and other contractual thoughts

If you’re a writer, I think you should be paying attention to the story surrounding Kesha and her contract.

I think it’s a big deal, and I want to take a few moments to discuss it. However, since I am a male, and since this has to do with sexual abuse, I think have to address that aspect first. And, since I assume that not all folks who wander over here will really understand the context, I feel the need to summarize the basic situation briefly (and probably way too simply) by stating these things:

1. Kesha is the pop singer who was known as Ke$ha some time back.
2. She sings stuff that a lot of folks like, but I admit I am not really one of those people. This is fine. You don’t need to be a big fan to discuss the situation. I am not going to pretend to be all pop-culturally savvy here. I am not.
3. She hasn’t put much music out lately, because she’s been too busy suing Sony, her record company, in an attempt to get out of her contract because she says her manager, and not coincidentally, the owner of the record company’s label she works with, has been sexually abusing her for … well … a lot of years. She’s also made it understood that he has not given her the reins to make the kinds of music she wants to make, and has body shamed her into eating disorders. Predictably, it just gets uglier and uglier from there.
4. Late last week, an injunction on her case was not granted, meaning she has to either work for SONY, or not work.
5. This has created a huge flurry of social media from many people in and around the industry.

Bottom line: Google “Kesha” and you’ll find a gazillion better summaries than I just gave you.

I don’t really want to talk about the sexual harassment element of this case, because these things are beyond my ability to adequately comprehend. But I feel like in order to talk about the rest of it—purely the contractual stuff going on (which no one else seems to be focusing on)—I need to address an opinion on the nature of her allegations.

So, let me say that I believe her manager almost certainly took horrifying advantage of her, and that in a just world she would be out of her contract with him. That phrasing “out of her contract with him” is actually more important than it may seem at first glance, but I want to start there.

Yes, there is a (very small) chance that Kesha has made it all up, a small chance that she’s merely playing with the situation in hopes of squeezing a bigger payday out of her contract. But (1) based purely on numbers it is massively more likely that she’s telling the truth and that her manager is a complete scum ball, (2) if that’s the case, there is no way our legal system should force her to fulfill a contract with an abusive client, and (3) it goes almost without saying that the risk/gamble of faking such a situation isn’t particularly wise. After all, SHE’S GOT A DEAL, you know? If she’s not telling the truth, she’s taking a huge risk in fighting against someone who has a helluva lot of power to use against her.

So, yes, I believe that in a fair world, Kesha would be free to make a new deal today because I believe her when she says she was abused. I believe that in the end, she will be found to be justified and that she will eventually win. That is my opinion. It completely sucks, and as a male I find it outright embarrassing, that women are still finding themselves in this position in 2016.

But what I want to focus on right now is that contract itself, and how that contract should make us as writers pay attention to what’s going on around us.

Thing is, since everyone is so busy focusing on the abuse angle, it took me most of a day’s worth of scurrying around to determine what her contract problem really is. When you take this effort, though, a few things become more “clear.” Bottom line: it’s a mess. For example, did you know that her problem is actually an intersection of three separate contracts? One contract (signed when she was 18), is effectively with her manager, the second is between her manager and Sony, which is NOT actually a recording contract, but essentially a services deal, and the third is between Sony and Kemosabe, the Sony label that her manager runs.

All of these three deals together essentially put Kesha into a situation that, abuse or not, leave her at the whim of her manager. He can control what she does as a professional to a degree that few people truly understand, and (again, abuse aside) it appears to be completely legal. The fact that Kesha is suing to get out of that deal (again, abuse or none), suggests to me that it not only appears to be completely legal that her manager can control her, but that this most certainly is what her contract allows her manager to do. To make matters worse, this deal apparently puts her in a situation where she owes at least SIX albums to fulfill her obligations.

Six. I mean … holy shit. That’s a lot of music. And in the lifespan of the average female pop star in today’s world, that seems to me to be just about a lifetime deal.

First things first: this sucks.

Second things second: but still, she signed the deal.

Third things third: the judge in the case says these are fairly standard deals—meaning that a LOT of artists are tied into these kinds of contracts, and if true, every one of them runs the risk of being locked into doing whatever the owner of the contract wants them to do for a very long time.

Poe, another female singer, had contractual problems of a similar but not identical nature, but apparently without the sexual abuse elements. Her issues cost her a decade of her career, and us a decade of what could have been some remarkable work. I am, you might garner, a bigger fan of Poe’s work than Kesha’s … but that fact has nothing to do with the fact that both of them got themselves into contractual binds that threaten to kill their careers.

So, I hear you…what does this have to do with writers? Recording deals are different than writing contracts.

Well, maybe. But maybe not so much.

Let’s pretend for a minute that the abuse did not happen. All right? For just a moment, let’s assume that Kesha’s accusations fall into the 2% (give or take) of such things, and that her accusations of abuse are falsely made. That means that she’s either doing it for the potential of more money (which assumes her future deal would pay her a heck of a lot more), or she’s doing it because she can’t stomach the crap her manger is telling her to sing. Or both, I suppose. Just as important, if her record company decided to not put out the albums, I suppose she’s still required to present the material in order to fulfill the contract.

And until that time, she’s landlocked.

To be blunt, this is, effectively, what traditional publishing companies have worked hard to do with writers for a long time. It is their business to squeeze as much out of writers as they can (why wouldn’t they, I suppose). They want to lock the writer into situations where they have to write what the publishing company wants them to write. And when you add in the idea of the agent, you have the same basic dynamic that Kesha finds herself in—except that Kesha is triple screwed because her “agent” also runs the “imprint” that she records for under the contract she has with the parent company.

Her career is in the clutches of her agent/producer/record company, and if they want her to play the pop ingénue forever, or whatever, she pretty much needs to do it. They decide. Poe, for example, was able to skirt her issues to a small degree by recording a few things under different names, but for all intents and purposes, she could not record under her stage name. She had signed away the ability to decide what her art was going to be. Kesha is in a similar situation.

I’ve been around the business for a couple decades now. I’ve signed a lot of contracts for short stories (which are considerably less complicated than novels). I’ve dealt with film options (which are more complicated than short stories, but generally less complicated than novels). I’ve been unlucky enough, however, to not deal with big publishers on novel contracts. I’ve done all my novel length work as an indie/small press publisher. But, yes, know several writers who have been in such ugly situations where they’ve lost control of their careers due to deals they’ve fully agreed to with publishers/agents, and due to a lack of knowledge about how the business worked (or worse, back in the day, due to the fact that they knew how the business worked, but that there was no other way that they could see to keep their careers going).

When your agent/publishing company/record company owns you, you’re at their whim.

That’s just the fact.

To my ability to understand, this thing with Kesha is exhibit A of what can happen when you sign a particularly crappy contract—and it’s also exhibit A of what the publishing world (and music world for that matter) operated like prior to the existence of independent publishing. Her deal is, once again, apparently a fairly standard deal for the traditional music industry.

And that’s why writers should pay attention to the situation Kesha finds herself in.

Even if one discounts the sensational allegations (which one should not), this is one truly smelly situation.

Now, I fully admit that I would love to make a deal with a bigger publisher sometime because they bring things to the table that are a lot of work for me. But I don’t feel any great need to do that, and I won’t do it unless the situation is favorable. I want to own my stuff, so if it screws up, it’s my fault.

And, luckily, we have options today.

Very good options. Options where we can control everything that happens to us (within the limits of anyone’s ability to determine what happens to us in anything that resembles an artistic endeavor, anyway). We do not need to sign a deal that puts our creative control in someone else’s hands. And, to be blunt, any deal that stops a person from in good faith making the art they want to make is a dangerous deal, indeed.

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  1. The terms I’ve seen bite my fellow authors are:

    1. Right of refusal on next book.
    2. Ability to recoup advances across books

    Put those two together and here’s what has happened to more than one person I know:

    1. First book doesn’t sell well.
    2. Author leaves the industry rather than write a second book for what amounts to negative money.

    If the second book might have actually done well, everyone loses.

  2. Hi, Elliot.

    yes, that’s a big one. There are some others–and lately if you add in the agents who have stepped into the publishing business you have a clear conflict of interest that mirrors Kesha’s situation fairly well (again, discounting the abuse bit … but realizing that the structure of these kinds of contracts enable that kind of ugliness).

  3. Well, you know I could not agree more strongly, Ron. The recording industry often gets more attention than the writing industry, because their abuses are often thought to be more flagrant. In the early days of rock n roll, there were contracts taking the rights to some of the biggest hits in history from their original artists for amounts of $10 and $20. Then there’s the film industry. My BFF Cathy just reminded me that the studio starved, drugged and abused Judy Garland to make the beloved Wizard of Oz.

    In class last week, we just reviewed the Forbes Billionaires list, and then the top celebrity earners list. Most class members immediately understood the difference between LeBron James’ $350 MILLION earnings and the top billionaires’ $50-70 BILLION net worth.

    I do hope Kesha gets out of this and can have some opportunity to live her life and make her music on her own terms.

    That said: I know people in our industry (women) – who wrote the books of some very well known male writers. To this day, those male writers are reaping the financial rewards and attention for being so smart, wise, influential, etc. These women were promised their own contracts and their own opportunities for their work “at some later date.” And that date never came. No one should ever, ever sign a contract or do someone else’s work unless they know what they are doing backward and forward. Above all, never believe “future promises.” They are 100% of the time, lies.

  4. Females have it worse than males sue to the age-old power struggle of gender roles and the patriarchal structure of the western world. That is true. But the base dynamic of the corporation is the same for all people, which is why I wanted to separate the gender issues in this post. The world is full of male artists fighting to get control of their work, too.

    At the root of the problem is that the capital site of the creative/capital equation works very hard to always keep hold of the capital side of the equation. This is (to be a bit snarkish) Monopoly 101. And when that happens, people get hurt–in a lot of ways.

  5. I think there’s value in discussing the two separately (gender pressures and corporate/creative pressures), because they are two separate crimes that act as multipliers.

    Kesha is suffering the full spectrum of soul crushingness, whereas Poe (apparently) had to deal only with the corporate/creative side. Pick your favorite male star who fought the hierarchy (can you say Tom Petty, maybe?) and you see they had to deal only with the corporate/creative side also.

    The simplistic first lesson is to only make deals you can live with if things go horribly wrong. But that’s almost impossible if the only deals on the table are horrible ones–which is apparently what the “standard” music deals are these days.

  6. In its papers, besides arguing that her claims provide no basis for corporate liability and would be time-barred nonetheless, Sony points to Kesha s admission that Dr. Luke allegedly bullied her into silence.

  7. I strongly suspect we have not heard the last on that aspect of the case.

    That said, her contract is still a total mess. And worse, it appears to be fairly industry standard. I have great sympathy/empathy for the abuse she’s gone through…but even if she hadn’t gone through that, these kinds of deals are the kinds of things that make me shiver. Fans and other entertainers should be _almost_ as upset over these kinds of things as they are over the more sensational aspects of the situation. IMHO, and all that.

  8. Pingback: Sunday Surprise | creative barbwire (or the many lives of a creator)

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