Would UK contract law have helped to free Kesha?

Avatar photo

By Alex Aldridge on

World is reeling from New York court’s ruling — prompting queries about how Britain would handle the case


Music fans are up in arms about the New York Supreme Court’s recent ruling against singer Kesha, with Adele coming out in support of the troubled pop star at yesterday’s Brit Awards — but UK lawyers aren’t so sure the court came to the wrong decision.

The headline-grabbing case was brought to the courtroom by world famous pop star Kesha. Dr Luke — full name Lukasz Sebastian Gottwald — was the executive producer for both of the singer-songwriter’s best selling albums, and the defendant in the controversial claim.

Speculation about the professional nature of their relationship has been bobbing along for years, but came to a head in October 2014 when Kesha started legal proceedings against Dr Luke. She claimed that Dr Luke “induced” her to drop out of school and “pursue a glamorous career in the music industry”, and that for 10 years he has “sexually, physically, verbally, and emotionally abused” the singer to the point where she “nearly lost her life.”

Dr Luke vehemently denied the allegations from the get go, and countersued for defamation and breach of contract.

And, on Friday, the court sided with him. New York Supreme Court Justice Kornreich denied Kesha the injunction that she had claimed, and now it is time for both sides to gather more evidence so she can decide whether or not to dismiss the case outright.

Fans are furious about the ruling. Twitter users have been using the hashtag #FreeKesha in support of the pop singer, and a number of high profile women — including not only Adele, but also Lady Gaga and Taylor Swift — have jumped to her defence.

Kornreich’s decision has no doubt riled the public — but would a UK court have subjected Kesha to the same fate?

It’s impossible to say. As all lawyers soon learn, every case turns on its own facts — and in this one, those facts are pretty murky. But what is clear is that under domestic law, employment contracts have an implied term of mutual trust and confidence, which means, essentially, that both the parties have to behave honourably to each other. If the employer breaches this term, the employee can walk out and later bring proceedings for constructive unfair dismissal, as former Chelsea football club doctor Eva Carneiro did.

So could this have helped Kesha? Legal Cheek spoke to Mark Stephens, a top media solicitor at Howard Kennedy, about the case, and he told us:

The problem with contracts is that people want to get out of them in order to make more money. That’s why judges are so reluctant to let people slip out of them.

Another London-based media lawyer, who wished to remain anonymous, told us this:

This is a case in which outlandish claims have been made, which, if true, would give grounds for termination of the contract between Kesha and her producer, whether in a UK or US court — not because it’s an employment contract, as such, but because, analogously, American contract law presumes an implied covenant of good faith and fair dealing.

He continued:

The facts are unclear but it seems, at this stage, that the New York court isn’t persuaded by the claims. As such, the contract remains intact. A UK court would likely come to the same conclusion.

That being said, both agreed that it’s not really in anyone’s best interests to allow the contract to continue.

Will Kesha’s next albums be any good if she’s essentially being forced to record them? Not so, according to Stephens:

Ultimately, the contract is one for personal services. Pushing on with it doesn’t do anyone any favours. Often the best thing to do in situations like this is to negotiate a release on proper commercial terms.