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Why can't Kesha just release a mixtape?

The pop star's legal fight is complicated, heartbreaking, and instructive

Jamie McCarthy/Getty Images

It’s hard to think of a more heartbreaking music industry story than Kesha’s ongoing legal fight with former producer Dr. Luke. The bratty party-pop pioneer behind "Tik Tok," "Die Young," and "Timber" sued Dr. Luke (aka Lukasz Gottwald) for sexual assault in October of last year, detailing a pattern of alleged mental and emotional abuse that persisted over their decade-long working relationship; Dr. Luke countersued, asserting that Kesha was extorting him and breaching their contract. She added her record label Sony Music Entertainment — Dr. Luke’s Kemosabe Records is a subsidiary — as a defendant in June, claiming they knew about and ignored Luke’s abusive behavior. (Sony has since described itself as being "caught in the crossfire," effectively siding with Dr. Luke.)

The newest development in Kesha’s case became apparent last week when the singer and attorney Mark Geragos continued to seek an injunction, one that would allow her to record and release music without Dr. Luke’s involvement. Her appeals to Sony and Dr. Luke were rejected — the label won’t work with her unless she’s working with Dr. Luke, and she’s secured affidavits from external industry professionals that state the lawsuit has rendered her too risky for distribution by other parties. Her last full-length album was Warrior, released in December 2012; she hasn’t released any music in an official capacity since appearing on Pitbull’s "Timber" in October 2013.

It’s a sad, messy, and complicated situation, and has prompted many music fans to reevaluate their assumptions about creative freedom in the digital music era. Platforms like SoundCloud and Bandcamp appear to give independent artists distribution vehicles that can be just as effective as a major label’s machinery, and streaming services like Spotify and Apple Music help to create an illusion of one-click accessibility. Some artists have worked out what are effectively contract sabbaticals: when Miley Cyrus released Miley Cyrus & her Dead Petz earlier this year, it didn’t count against her contract with Sony subsidiary RCA, and the label issued a statement supporting her passion project. (It’s worth noting that Cyrus has severed her own creative ties with Dr. Luke.)

Even fictional musicians are leaking their music to get around label drama

Even artists who are embroiled in their own label drama have found ways to work around red tape and release music on an independent basis. Rising star Young Thug was caught in a tangled web of contracts, agreements, and advances, one so complicated it meant his debut studio album didn’t come out until earlier this year; he kept releasing mixtapes and advancing his career all the while, and retained momentum because of it. (He just released another one on Halloween, Slime Season 2.) It’s even crept into popular fiction: when Hakeem Lyon ran head-first into his father and brother’s trickery on hip-hop soap opera Empire, he leaked his album in response.

What’s stopping Kesha from trying something similar? She may not be able to make an album for Sony without Dr. Luke’s involvement, but it hasn’t been explained why she can’t dump material she’s prepared in the near-three years since Warrior onto some independent online portal — to pursue a mixtape strategy, if you will. It might not generate any revenue or help from a distribution perspective, but it would give fans something to rally around, and it’d demand that people look at her as a working musician rather than a living tragedy.

"An artist who is very popular can negotiate terms someone getting their break can't."

The answer to that question is just as complicated as the lawsuit that surrounds it. "Music contracts can have drastically different provisions depending on… the prior success and fame of the artist," said Brad Newberg, an intellectual property specialist and partner at law firm McGuireWoods, in an email. "An artist who is very popular going into a contract deal can negotiate various terms (such as ownership of works, ability to do side projects, ability to terminate the deal) that someone who is 18 and getting their break can’t." This is relevant in Kesha’s case: her career began in the mid-2000s when she sent Dr. Luke and pop godhead Max Martin a demo she made with her songwriter mother and a musical director at BMI. She was 18 years old.

The New Yorker writer John Seabrook details this early phase of Kesha and Dr. Luke’s working relationship in his new book The Song Machine: "Dr. Luke wanted Kesha Rose to come out to LA immediately … [he] persuaded the teenager to drop out of high school and move to LA, where she signed with his production company, Kasz Money." Seabrook later quotes manager David Sonenberg regarding that initial contract with Kasz Money. "Sonenberg … reportedly told her and her mother, ‘This contract is worse than the one Lou Pearlman made with the Backstreet Boys.’" Kesha ended up remaining Dr. Luke’s client, and she was Kemosabe Records’ first artist when Dr. Luke partnered with Sony for his sublabel. When it comes to Kesha’s musical career, there’s no escaping the doctor.

There’s an insane degree of difficulty associated with any sort of hypothetical independent release, too — if Kesha’s going to put out any music right now, it’s something she’ll have to do without any industry help. Sony has equity stakes in Spotify and Vevo, and SoundCloud is trying to work out a partnership with the label; by effectively siding with Dr. Luke and framing Kesha’s suit as a contractual maneuver, Sony renders her radioactive to these services. No less an authority than former Universal Music Group president / CEO Jim Urie said as much in an affidavit included in Kesha’s bid for an injunction. "No mainstream distribution company will invest the money necessary to distribute songs for an artist who has fallen from the public eye," wrote Urie. "If Kesha cannot immediately resume recording and having her music promoted, marketed, and distributed by a major label, her career is effectively over."

Dr. Luke allegedly called her "a fat fucking refrigerator."

And if the legal and commercial complexity of Kesha’s situation wasn’t enough, it’s rendered even more challenging by the power dynamic present between her and her alleged long-time abuser. Kesha and Dr. Luke have had a creative relationship for a decade at this point, and based on Kesha’s claims it’s one that’s been sour since the very beginning. In her own recent affidavit, she wrote that Dr. Luke drugged her with a "sober pill" and raped her just a few months after she joined him in Los Angeles; her early 2014 stint in a rehab clinic for treatment of an eating disorder was in part pushed forward by Dr. Luke allegedly calling her a "a fat fucking refrigerator." "I know I cannot work with Dr. Luke," wrote Kesha in her affidavit. "I physically cannot. I don’t feel safe in any way."

Kesha’s virtual imprisonment is more than just a personal tragedy — it’s a musical one, too. It may be hard to remember — it was a half-decade ago, after all — but Kesha was one of the biggest pop stars in the world at her commercial zenith. She earned seven Billboard top 10 hits across 2009 and 2010 alone, a charge led by the immortal "Tik Tok," and her work in that period captured a hedonistic, bratty spirit, one that lingers in pop today. Miley Cyrus can’t record Bangerz without the trail Kesha blazed, and there’s probably no "Bad Blood," "Cool for the Summer," or "The Night Is Still Young" without her either.

But no matter what you think of Kesha’s artistic merit, her case is still important, because it pierces the veil of assumed digital democracy in the music industry. It’s tempting to think of onerous contracts as a relic out of the Golden Age of labels, a time when CDs reigned supreme and Mariah Carey was getting $80 million to make Glitter; Kesha’s ordeal is proof that they’re not just pieces of paper that can be freely circumvented. "There are extreme situations which could negate a deal," writes Newberg, "but unless a court orders rescission or termination of a contract, an artist would take a big risk to just consider the contract terminated and go do something that the terms would prohibit."