A lot of ink has been spilled today reacting to the New York Supreme Court, New York County’s (Manhattan trial court) ruling against Kesha’s motion for a preliminary injunction. While it’s always great to see a rape victim receive so much support, much of what’s been written today is wrong. For starters, very few publications (I’ve found one) have even correctly reported that the ruling was on a request for a preliminary injunction. This is an important fact. Preliminary injunctions are meant to be used incredibly sparingly.
Kesha is asking the Court to release her from her contract with Sony. Her reason is based on her claim that Dr. Luke, her producer, raped her. She claims that she cannot possibly perform under her contract because she cannot work with Dr. Luke, her alleged rapist. Under her contract, she is not allowed to release music with any other labels (this is normal). So, she argues, if she cannot work with Dr. Luke and she cannot work with other labels, she is effectively unable to release any music.
There has not been a trial yet. Kesha was seeking a preliminary injunction to stop Sony from going after her for breach of contract if she released music with another label. Basically, she’s asking the Court to free her from her contract (the underlying claims in her case) and with this preliminary injunction she’s asking the Court to free her from the contract now, preliminarily, so that she can produce and release music before the trial is complete. A preliminary injunction is an extraordinary departure from the normal court process.
According to the New York procedure rules, a preliminary injunction is only appropriate where there is:
- a likelihood of ultimate success on the merits;
- the prospect of irreparable injury if the provisional relief is withheld; and
- a balance of equities tipping in the moving party’s favor.”
The purpose of a preliminary injunction is to maintain the status quo pending the outcome of the litigation. E.g., Jamie B. v. Hernandez, 274 A.D.2d 335 (N.Y.A.D. 1st Dept. 2000). The “status quo,” in this case, would be for the contract to continue in effect until a full trial (or settlement, or ruling on summary judgment) can be had on the full merits of the case.
The Judge did not rule that Kesha had not been raped. The Judge did not rule that Kesha’s rape did not matter. Kesha is not enslaved to a contract with her rapist. The Judge simply ruled that Kesha did not meet the extraordinary showing necessary to grant a preliminary injunction. Kesha’s case is still pending. She still gets her day in court.
Finally, it’s important to note that even if the judge does not release Kesha from her contract after a full trial on the merits, that does not mean Kesha is forced to perform under the contract or never make music again. The American legal system is not based on forcing performance under contracts. It’s a ‘play or pay’ system. Kesha would be free to break her contract and produce music with other labels. And then Sony would sue her and her new label for breach. Kesha would get to make her music (not with her rapist) and Sony would get compensated for the breach of contract. Obviously this isn’t the best situation and having to pay for a breach can have a chilling effect on Kesha’s music but this is still an important point that many people today seemed to not understand. Also, again, this is a hypothetical. We are far from the Judge ruling on the merits of the case.
It was great to see so many people support Kesha so strongly today. But a great disservice was done when no one bothered to understand what actually happened before reporting on it.