This week, to the dismay of many fans who have initiated boycotts and begun to hold #FreeKesha vigils in her honor, pop singer Kesha was denied a preliminary injunction to permit her to create music outside the terms of her contract with Sony-affiliated producer Dr. Luke, on the grounds that he had sexually and mentally abused her for years.
Various media outlets have reported that the ruling means that Kesha is being “forced to work with [a] producer she says raped her.” These reports are somewhat imprecise. The preliminary injunction would have applied only during the pendency of her sexual assault suit against Dr. Luke and, as famed judge Justice Story noted in a case seeking to force a singer to perform in a specific opera house, it has been the law of the land since colonial times that “a court of equity will not compel a singer to perform a contract to sing.” (Massachusetts Suffolk Equity Session, Reported in Boston Transcript Sept. 29, 1894. Case is noted in 8 Harv. L. Rev. 172, which is the only accessible report of the case.)
However, while courts will not force a singer to sing, courts will enforce contractual provisions that singers not sing for competing producers (or opera houses, as the case may be) — or face a suit for breach of contract. As such, the law appears to have put Kesha in the intolerable position of either working with an alleged abuser or facing a lawsuit for breach of contract by working elsewhere, which raises the question: Is there nothing in the corpus of contract law that would permit Kesha a defense to performance?
A possible defense
In such a situation, recourse to the Restatement of Contracts is never ill-advised and, indeed, in this case, it does outline a few possible legal defenses that Kesha might creatively pursue should she seek to record the next “Tik Tok” or “Timber” outside of her contract with Sony. The first is outlined in section 261, entitled, “Discharge by Supervening Impracticability” and provides:
Where, after a contract is made, a party’s performance is made impracticable without his fault…his duty to render that performance is discharged…
–Restatement (Second) of Contracts § 261 (1981)
Restatement (Second) of Contracts § 261 (1981). While the doctrine of impracticability is generally reserved for cases in which a party to a contract dies or is rendered incapable or performing, the comments to the section provide that if a “basic assumption” that both parties shared when entering into the contract is no longer present, performance may be excused. As such, in Kesha’s case, it would be a novel, but perhaps not unjustified application of the doctrine to argue that Kesha’s contract with Dr. Luke assumed that their work be in a non-abusive environment, or more directly, that a victim of abuse lacks any real capacity to work in such an environment.
A second potential defense to performance included in the Restatement is outlined in section 178, entitled “When a Term is Unenforceable on Grounds of Public Policy”:
A promise …is unenforceable on grounds of public policy if … its enforcement is clearly outweighed in the circumstances by a public policy against the…terms.
–Id. § 178
The term “public policy” in the context of invalidating a contract is not easily defined, but courts and legislatures have long recognized the societal interest in avoiding sexual abuse in the work-place, even in the face of lost profits on the part of an employer or producer.
Of course, neither of these theories are assured to be successful in Kesha’s case and, at the end of the day, she may be forced to perform her contract as agreed. But, these provisions of the Restatement should, at least, provide some hope to Kesha fans who have lost faith in the justice system as a result of the court’s recent ruling.