Singer/songwriter Kesha made headlines recently as she attempted, unsuccessfully, to have her music contract with Sony nullified. She sought this on the basis of rape allegations she’d made against her producer, Dr. Luke.
If you’re unfamiliar with the case, there’s a good breakdown here.
As I often do, I’d like to use this particular case as a springboard to talk about broader issues.
Many think pieces were written in response to Kesha being forced to uphold her contract. Carl Beijer offers a helpful summary of the major perspectives:
If you are a feminist, the liberal capitalist contract fetish confronts you with three options.
Historically, the left’s response has been to realize that capitalism is deeply implicated in the oppression of women, and to tie the feminist agenda to the broader fight for socialism. When a radical feminist encounters a case like Kesha’s, her answer is straightforward: we cannot privilege the sanctity of contract at the expense of women. Judges and juries should be empowered to simply nullify contracts in cases like this, and if capitalists don’t like it, they should stop raping women and giving the courts reasons to nullify contracts.
Alternatively, if you don’t want to challenge capitalism, you can leave women at the mercy of wishful thinking, as Kickman does:
Sony should have…offered her a new, better producer and assured her that she was still going to receive the same publicity and promotion throughout her career despite the producer shift…Sony, we’re watching. And, for women everywhere, we hope you do the right thing.
Or third, like Davies, you can resign yourself to empty fatalism:
It’s likely that “commercially reasonable” will almost always beat or “ethically reasonable” and is certain to beat “morally reasonable”…When a woman as powerful and high status as Kesha can’t win, the rest of us stand even less of a chance.
The tension between feminism and capitalism is obvious here, as Beijer notes:
For example, so-called “right-to-work” laws – which justify themselves as a defense of the freedom to contract – drive down women’s wages by 4.4%, compared with 1.7% for men. Incidentally, these same laws are also a serious barrier to workplace discrimination and harassment claims, a problem that also, of course, disproportionately affects women.
Feminism and the women’s liberation movement in the US have often been reduced to simple questions of economics: how do women gain access to the same employment opportunities and incomes as men?
Consider the extent to which work traditionally done by women has long been undervalued or devalued. Even as paid professions, housework and childcare are poorly compensated, despite being essential roles. It goes without saying that, when women did (and do) this work as housewives, it wasn’t (and isn’t) financially compensated at all. The gender pay gap remains real and substantial, even now, and this is without taking into account the dynamics involved in Kesha’s case. This is an industry, after all, with a long history of male musicians, producers, and other stuff being physically and sexually abusive toward women on numerous occasions, while rarely suffering any negative repercussions at all, much less career damage. Contrast this with Kesha, whose career has essentially been killed by the fact that she is contractually bound to work with a man she alleges raped and abused her repeatedly. It’s not that there is no precedent for this, but that the typical course of such a drama is that the woman in question is marginalized, pushed into the background, and forgotten about. Either that, or she sticks it out and hopes she does well enough in the near future that she can make it on her own and write her own ticket someday.
In Kesha’s case, a remaining obligation of four albums makes just grinning and bearing it an untenable option, and Sony’s promises that she is free to record with a different producer remain hopelessly vague. Sony can afford to do this: as the vastly more powerful party to the contract involved, it has far less to lose than Kesha by holding her to the terms. They may lose out on some album sales they can make up elsewhere; Kesha, for her part, ends up without a career.
That this contractual dispute was decided on a purely commercial basis provides an excellent example of the limitations of such legal frameworks. If one is the victim of unethical, even criminal behavior that nevertheless falls outside the governing language of a contract, there is no legal basis on which to terminate it. Whether Dr. Luke raped Kesha ends up completely immaterial to the question of whether she must abide by her contract. Couple this with our legal system’s absolutely abysmal record in dealing with rape complaints, and it’s easy to see how these circumstances create a closed loop of logic that both preserves the integrity of the legal system while depriving a wronged individual of both justice and agency. Had Dr. Luke actually been convicted of crime, this may have been egregious enough to force a revision of the contract terms. But without that, it may as well not have happened at all–Kesha’s word is next to worthless when put against the language of her contract.
If it sounds wrong and vile, that’s because it is. Why should a recording contract be worth more than a person’s dignity? Why is legal language privileged over human rights? Courts do have the power–and judges have the discretion–to vacate a contract if the implications of it terms are unconscionable. Given Sony’s conduct and the allegations against Dr. Luke, it’s peculiar (but not unusual) that such an approach was not taken.
Although this one case would be tragic enough in and of itself, it’s all the more disturbing for how typical it is. Women are underrepresented at higher levels in the music industry–same as pretty much every other industry, really. This means that the top-down culture of such firms is established by men for the needs and desires of men. What women want is of secondary concern, if it’s prioritized at all. While women have, to a great extent, been given access to the capitalist system–a system built primarily for the purposes of men–this does not mean that it is in any way designed to serve the needs of women, or that its functions may easily be interpreted in such a way that they benefit women as readily as they do men.
This is why–and it’s something that took me a while to understand, as a man who does not face these sorts of problems–feminist movements are often bound up with socialist movements, because a system designed to serve the economic demands of men cannot, by design, treat women fairly by virtue of mere equality. The system itself must be redesigned, if not torn apart altogether, to reflect the needs of everyone it is intended to serve.
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