Tuesday, February 23, 2016

special comment: #freekesha - a response

I hoped that I would never have to make this.

In 2013, I made an extended Special Comment video surrounding the mismanagement of pop star Kesha's career, culminating in the cancellation of the collaboration project she made with the Flaming Lips, Lip$ha. In said Special Comment, I outlined all of the reasons why this was an asinine decision that ultimately cost them a considerable profit and the opportunity to market a more versatile and bankable star instead of doubling down on club boom trends that were nearing their final moments. Granted, the entire Warrior rollout and promotion had been a catastrophe where the labels had repeatedly shot themselves in the foot, to the point where you could argue it was intentional sabotage.

Turns out it very well might have been, because in the following months, Kesha sued longtime collaborating producer Dr. Luke for some pretty horrific charges, including sexual assault and battery, sexual harassment, and violation of California business practices that trace back over a decade, including emotional and verbal abuse that partially triggered her eating disorder for which she went to rehab in early 2014. Now the legal nightmare of this case will only develop further as the lawsuits see court, but to try to make sense out of the suits and countersuits, Kesha was looking to get at least a release from her exclusive contract with Dr. Luke's label Kemosabe, for which she's required to release several more records before her contract terminates. So in 2015, Kesha added an additional suit to the parent label Sony Music, seeking a preliminary injunction that would allow her to work while the court system hammers this out, especially as her brand's value suffers with more time out of the spotlight. 

Now if you were a Sony record executive, you're a terrible position right now: on the one hand you have a very bankable star making some very serious allegations, who has been trying on multiple occasions to get away from her main producer even before she was signed to you, and the other hand you have a producer who has brought disgusting amounts of money to your company, but over the past few years has been responsible for fewer and fewer hits, with 2015 only netting him a single top ten hit with other Kemosabe signee Rock City. It doesn't help matters that Kesha's legal representation has been subpar at best, specifically with regards to the injunction itself. Reportedly Sony executives offered Kesha the opportunity to work with other producers, but her lawyer said these promises were 'illusionary' and made in bad faith, because Sony would not promote the album if it was not supported by Dr. Luke, a business relationship that they value more. Now as I outlined in my previous Special Comment, this is most likely true - Kesha's promotion and marketing by Sony has been lousy - and the fact that Kesha's lawyer could not expand upon this further was kind of alarming, because it appears speculative. Sadly, it's also probably the reason why the New York Supreme Court judge ruled against Kesha's injunction yesterday, which means that Kesha either has to record several albums under Dr. Luke or she has to wait until the lawsuits are over - and you can bet Dr. Luke will drag this out if only because of sheer spite at this point, which will probably do irreparable damage to her career. Also keep in mind that Dr. Luke has a history of dragging this nonsense out - from the time she was first signed in 2005, it wouldn't be until late 2008 where she would record backing vocals for 'Right Round' for Flo Rida. In between, she and Dr. Luke reportedly barely spoke, and Kesha's previous management DAS - who reportedly had been told by Kesha about the assault mentioned in the lawsuits - were trying to get her out of that contract which they described as worse than the one between Lou Pearlman and the Backstreet Boys!

Now on the topic of DAS - because I know someone is going to bring this up - when Kesha went to court in 2011 on contract terms defending Dr. Luke in order to fight management contract disputes here, she reportedly made the statements under oath that he had never drugged or initiated sexual contact with her. Her mother corroborated those statements, and to some, that's a giant red flag that Kesha could indeed be pushing something that isn't true.... except the more you think about it, the less sense that makes. For one, Kesha is not a stupid woman, so putting herself through the living hell of a tabloid legal sexual case is something that one does not engage in lightly, especially if this is a contract dispute that could easily be raised without such allegations! Furthermore, when your opponent has a reported net worth of $100 million dollars and who has threatened to destroy and your entire family if you rat them out, there's justifiable cause that this testimony could have been coerced, especially considering that Dr. Luke could easily bribe or blackmail anyone from ever working for Kesha in the mainstream music industry. 

But that's the point, there are no 'winners' here. If I was Kesha, I would have fired her lawyer months ago for trying to pull up such painfully flimsy arguments that he can't convince a judge of a record label's corruption, and I expect that's just a matter of time. The infuriating thing is that it's not like he doesn't have a point - record labels shelve or refuse to promote releases all the time, and considering this was already done with Kesha's collaboration with The Flaming Lips, there's ample evidence they'd do it again even if it was a commercial-leaning project and have a desire to keep a working relationship with Dr. Luke. Of course, if I was a Sony executive, seeing the social media firestorm and the mountain of bad press associated with this story - which could very well turn into a tabloid nightmare when the lawsuits actually hit the court - I'd be trying to figure out the best way to keep my hands clean of assets that are rapidly proving to be toxic. And even assuming the worst - that Sony would hold Kesha's career hostage to work for Dr. Luke and not just drop her from the label because her making no music is preferable to her making music for someone else - at the end of the day perpetuating the status quo makes everything worse, especially considering the expanding line of artists and celebrities refusing to work with Dr. Luke. From a pure business perspective, he's rapidly becoming just as toxic of an asset - because even if he's found to be innocent, he's not going to come out of this unscathed in terms of relationships.

In fact, let's take a look at Kemosabe, Dr. Luke's boutique label: what success stories do we have here? Well, there's Becky G, who had a big hit with 'Shower' in 2014... and no debut album. We have Juicy J of Three 6 Mafia who dropped a record in 2013 that sold alright with one hit in 'Bandz A Make Her Dance'... and nothing since then. We have LunchMoney Lewis, who dropped the excellent Bills EP last year... and we haven't heard jack from him since, even despite some real buzz. We've got Lil Bibby, who seems to be content to drop mixtapes instead of releasing an album, but a debut is planned for March. Same for Swedish pop star Elliphant, who also has a debut set for March that was pushed back from September. And finally, we've got Rock City, who dropped their debut last year... and even despite a top ten single, it sold miserably. If I was a Sony record executive, I'd be looking at the track record of this label and its producer and questioning just how viable it is, even despite hiring some promising executives. Digging through the financials are even bleaker - Kemosabe has not cut a profit, and Sony is not going to let Dr. Luke blow millions on promotion for acts that can't return their investment. Now this is where things get interesting, because Sony gave Dr. Luke five years from November 2011 to get this label working, and with bad press and no positive financials piling up, it would make more sense to either absorb the label and its artists or cut their losses and drop everyone, with the former option being more likely.

Unfortunately, I don't think this helps Kesha all that much, because when Dr. Luke originally signed her, the stipulations in her contract likely keep her bound in an exclusive situation, and if Sony can't/won't put pressure on Dr. Luke to step away, even the dissolution of Kemosabe won't help her. And that's assuming that Sony doesn't let Dr. Luke keep his unprofitable fiefdom - if he really does have that good of a business relationship that he's allowed to keep a label that hasn't turned a profit in years... well, frankly, that's a conversation for Sony Music's shareholders to have, especially when Sony has other labels that can turn a profit. And regardless of that, if Kesha's getting bad legal advice and doesn't feel she can trust Sony, there's little they can do here for at least the next several months.

So in this case, I have three distinct messages to articulate: one to Sony, one to Dr. Luke, and one for Kesha herself. Let's deal with Sony Music executives first, because arguably you have the most control and power. Keep in mind you guys spent around $60 million dollars in promotion turning Kesha into a star, and the longer this drags on, you're only going to lose money. If you're seriously questioning the viability of both Dr. Luke and Kesha tied to your organization, you should be, and if you think that association will hurt the brand further, dump them both. Yeah, not an easy thing to do when you have poured so much money into this, but sometimes you need to cut your losses. Of course, if you're not willing to do that, I'd lean on Dr. Luke hard to either give Kesha space to make her music - if she's so convinced that she can make hits without him, have her prove it - or to produce financial statements to explain why Kemosabe's not cutting a profit even with real talent. I'd be seriously questioning his value, especially as his number of hits has dropped into the single digits over the past two years. If Kesha or her legal representation isn't willing to negotiate, it's really the only thing you can do to salvage any sort of profit!

Of course, there are other options. If you still have Lip$ha in some form, you can give Kesha permission to release it. Don't have it count towards her contract with Dr. Luke, throw the most cursory of promotion behind it, and ensure it's released for sale, not for free. After all, what do you have to lose here - Kesha's brand is losing money with every month there's no music, so give the diehard fans who won't shut up the album that might as well be the parallel with Miley Cyrus And Her Dead Petz. If it sells - and it'll do okay at best, if it's as uncommercial as I expect - you've satiated the fans blasting you and bought yourself a favourable media cycle, you've made a profit essentially off of effort paid for years ago, and you've bought yourself a measure of good faith with Kesha that might get her to trust your organization. Sure, Dr. Luke will be pissed, but right now you're in damage control, and if he wants any hope of getting any more money or work out of Kesha, this is about the only way he has a hope of getting it. If it doesn't sell or is critically panned, the fan blowback will be on her and Wayne Coyne, not you! Or what about those songs that Kesha wrote when she was in rehab? Have her record them independently of Dr. Luke, then pull him in for mastering or final touch-ups so contractual obligations are met - hell, this might become necessary later anyway depending on his contract with her - and then release it just like you'd release Lip$ha. At this point, if you don't have the ability to break her contract and want to kill the press quickly, burning off her contract is better than limbo and legal hell. 

So now we come to Dr. Luke... and I'm going to give you the biggest benefit of the doubt. As by the law you are innocent until proven guilty, I'm going to make the assumption that everything you have said is true and you are the wronged party, that Kesha's agents and lawyers and mother have turned her against you wrongly. And if that was all the case, I'd be pissed too: I'd want to run her career into the ground so that it'd never recover - I would almost believe you made those threats to destroy Kesha and her family if she ever told anyone that her lawyer is alleging - but at this point you have bigger problems. While you might have a net worth of around $100 million dollars and you can afford to treat Kesha like dirt and you run these lawsuits on your own dime for spite, why waste your time? Even if you don't care an ounce that your label is bleeding money and Sony's probably pissed that you let Kesha get this far and drag this into the spotlight for too long, is it worth the hassle? Was the Twitter episode where you sprayed every defense of you even though your lawyers advised against it - which is very much out-of-character as one of the most private people in Hollywood? Let her fend for herself if she's so convinced she can do it on her own - it's not like you need her anymore to get to the top, you're already there. But dragging this out hurts something that actually matters for music executives, and that is relationships - there's already a slew of pop stars who won't work with you anymore, and the best way to rehabilitate your reputation is getting away from this as quickly as possible. Giving you the benefit of the doubt - which by all accounts you don't deserve - the only thing you gain by keeping Kesha tied to you is the possibility of a profit that'll come with far more headaches than it's worth, especially considering you've been in the industry long enough to know you can make anyone a star. Unless, of course, you get off on this, and in that case enjoy a few very uncomfortable shareholder meetings as Sony takes your boutique label away and hits you like a ton of bricks for wasting tens of millions of dollars of their money.

And finally... Kesha. You probably don't remember me when we met in 2013 - it was before your concert in Toronto, I gave you a copy of one of my anthologies, I dunno if you ever read it. Watching all of this play out has been heartbreaking, because nobody deserves the living hell you've been through in order to pursue your dreams. The courage it took to go public about this and face them in court is undeniable - and yet with the decision on Friday it might seem like there's no options, that there's no way out. Thankfully, believe it or not, you have options. The first should be a given: fire your legal representation. Mark Geragos might be one of the biggest faces in entertainment law - this is the guy who got Chris Brown off - but his own star has faded and you have to wonder how much of it is playing this for his own publicity, especially as he should have been able to win this injunction. Beyond that, the one thing going in your favour is that time is on your side more than it's not: yes, your brand is hurting and these guys have enough money to make this last for decades, but Dr. Luke still hasn't made Kemosabe profitable, and if the releases this year don't pull in anything solid, Sony will hit him hard. Hell, they probably already have, given the nightmare of bad publicity this will continue to become. That said, if Sony comes and offers to let you work with another producer, you need to agree here: the more unreasonable you seem the worse this looks for you, especially considering most of the public is disinclined to take you seriously, given the music from you they know. Yes, I know that's unfair and it doesn't alleviate the Dr. Luke situation, but at this point it's playing ball on a different field, and it'll let you get music released - and yeah, they aren't going to bother to promote you, but we live in the era of the Internet, and you have one of the most diehard fanbases I've ever seen: I'm confident if the quality is there, you'll do well.

Of course, if we assume the worst and Sony committed perjury and didn't ever make the producer offer - for which they'd never be called to account, let's get real here - you still have options. You have friends in the industry and you've worked as a songwriter before - keep those relationships alive and your name attached to prominent credits. Reach out to all of those artists who supported you and offer to contribute songs or guest appearances to their next album. Pull a Ludacris and run up the featuring credits - hell, you know Ludacris from Rising Star, get the networking advice and any connections you can! You also know Brad Paisley from that show: he's currently more creatively frustrated than he's ever been in his career, he could use the help, and you've always been comfortable in Nashville! Or better yet, what about the other artists on Kemosabe? Reach out to LunchMoney Lewis or Becky G, the other Kemosabe artists who are locked in contracts or stalled out, see if you can help or collaborate - Lord knows LunchMoney Lewis would like better work than a guest verse with Thomas Rhett! Then there's mixtapes - yeah, it's free and it won't help you get out of the contract, but it'll give you and your fans buzz and momentum, proving to Sony your brand and career is still worth their investment. And at the very worst... well, you still have your YouTube channel. You have brand deals and fashion connections and Hollywood and ways of reaching out to your fans: it won't be the same level of success, but while the legal nightmare unfolds, it's a way to stay engaged.

Kesha, at the end of the day you've shown more strength than should ever be demanded. But this battle is far from over, and while you might be barred from a conventional path to your art, it's only a matter of time before that changes, if only for the sake of good business. And while it's sick and wrong that you've been put through this living hell, right now the world is in your corner, and if you're as smart, driven, and committed as I know you are, you'll stick the landing. We don't just believe in you, Kesha, we believe you - and right now, I'd love to see that belief realized.

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