INDEX NO.

653118/2014

FILED: NEW YORK COUNTY CLERK 09/18/2015 09:15 PM

NYSCEF DOC. NO. 330

RECEIVED NYSCEF: 09/18/2015

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
----------------------------------LUKASZ GOTTWALD p/k/a DR. LUKE, KASZ
MONEY, INC., and PRESCRIPTION SONGS,
LLC,

x
: Index No 653118/2014
:
: Justice Shirley Kornreich
: Part 54.
Plaintiffs,
:
: Motion Sequence No. __
-against:
: (ORAL ARGUMENT REQUESTED)
KESHA ROSE SEBERT p/k/a KESHA, PEBE
:
SEBERT, VECTOR MANAGEMENT, LLC, and :
JACK ROVNER,
:
:
Defendants
:
KESHA ROSE SEBERT p/k/a KESHA,
:
:
Counterclaim Plaintiff,
:
:
-against:
:
LUKASZ GOTTWALD p/k/a DR. LUKE, KASZ :
MONEY, INC., PRESCRIPTION SONGS, LLC, :
KEMOSABE ENTERTAINMENT, LLC,
:
KEMOSABE RECORDS, LLC, and SONY
:
MUSIC ENTERTAINMENT,
:
:
Counterclaim Defendants
:
:
----------------------------------- x
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT KESHA ROSE SEBERTS
MOTION FOR A PRELIMINARY INJUNCTION
Dated: New York, New York
September 18, 2015

GERAGOS & GERAGOS, APC

Mark J. Geragos, Esq. (pro hac vice)
Tina Glandian, Esq.
Tyler M. Ross, Esq.
c/o 7 W 24th Street, Suite 2
New York, New York 10010
geragos@geragos.com
Phone: (213) 625-3900
Attorneys for Defendant and Counterclaim Plaintiff
Kesha Rose Sebert

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... ii

PRELIMINARY STATEMENT ................................................................................................... 1
BACKGROUND ........................................................................................................................... 5
ARGUMENT ................................................................................................................................. 9
I. THE COURT SHOULD ENTER A PRELIMINARY INJUNCTION ENJOINING
KMI, DR. LUKE, AND ALL RELATED INDIVIDUALS AND ENTITIES FROM
INTERFERING WITH KESHAS CAREER AND FURTHER DIRECTING
PRESCRIPTION SONGS TO COOPERATE WITH KESHA, AS NEEDED, UNTIL
THE COURT HAS RULED ON HER DECLARATORY JUDGMENT CAUSE OF
ACTION. .......................................................................................................................... 9
A.

Kesha Is Likely to Succeed on the Merits of Her

Declaratory Judgment Cause of Action. .................................................. 11

B.

Kesha Will Suffer Irreparable Harm if the Preliminary

Injunction Is Not Granted. ....................................................................... 12

C.

The Balance of Equities Favors a Preliminary Injunction. ...................... 14

CONCLUSION ............................................................................................................................ 16

TABLE OF AUTHORITIES

CASES
Bashein v. Landau,
96 A.D.2d 479, 479 (1st Dept. 1983) ...................................................................................... 9
Destiny USA Holdings, LLC v. Citigroup Global Mkts. Realty Corp.,
69 A.D.3d 212, 223 (4th Dept 2009) .................................................................................... 14
InterPower of New York, Inc. v. Niagara Mohawk Power Corp.,
259 A.D.2d 932, 934 (3d Dept 1999) ................................................................................... 11
Leiman v. 310 W. 56th St. Corp.,
270 A.D.2d 211, 211 (1st Dept. 2000) .................................................................................... 9
Machen v. Johansson,
174 F. Supp. 522, 531 (S.D.N.Y. 1959)................................................................................ 14
Milstead v. O Records & Visuals, Ltd.,
1984 WL 433, at *3 (S.D.N.Y. June 5, 1984)........................................................... 10, 13, 14
Star Boxing v. Tarver,
2002 WL 31867729 .............................................................................................................. 15
Then v. Navarro,
2015 WL 1878624, at *3 (N.Y. Sup. Ct. Apr. 17, 2015) .......................................... 10, 12, 14

ii

Viacom Outdoor, Inc. v. Wixon Jewelers, Inc.,

25 Misc. 3d 1230(A) (1st Dept 2009) ................................................................................... 11
W. T. Grant Co. v. Srogi, 52 N.Y.2d 496, 517 (1981) .................................................................. 9

STATUTES
New York Civil Practice Law 3001 ......................................................................................... 11

iii

PRELIMINARY STATEMENT
Kesha Rose Sebert (Kesha) is an international star whose career, health, and entire
future is at risk unless this Court takes immediate action that allows Kesha to pursue her passion
and her livelihoodmaking musicwithout interference from the man who has so badly
damaged her body, mind, and spirit.1
For the past ten years, Counterclaim Defendant Lukasz Gottwald, p/k/a Dr. Luke (Dr.
Luke), who is Keshas music producer and overlord to her career, has sexually, physically,
verbally, and emotionally abused Ms. Sebert to the point where she nearly lost her life. Sebert
Aff. at 5. Keshas doctors have found that she suffers from psychological effects caused by Dr.
Lukes abuse, and Kesha is constantly reminded of this pain and abuse every time she is
compelled to be around Dr. Luke in order to pursue her career and passion: writing and recording
music. Instead of providing a safe environment for Keshas music to flourish, Dr. Luke has
issued an ultimatum to Kesha that she either work with him or see him destroy her career. Kesha
is trapped unable to personally confront her abuser and unable to record and write music for
anyone else out of fear of Dr. Lukes threats of physical and career-ending harm.
Counterclaim Defendants Dr. Luke, Kasz Money, Inc. (KMI), Prescription Songs, LLC
(Prescription Songs), Kemosabe Entertainment, LLC (Kemosabe Entertainment), Kemosabe
Records, LLC (Kemosabe Records), and Sony Music Entertainment (SME) have made a
conscious and collective decision to end Keshas songwriting, recording, and performing career.
However, perhaps unwittingly, Dr. Luke has, by his own election of remedies (i.e. damages) and
as explained below, voided all of his contracts with Kesha. As such, it is clear that Kesha will
1

Kesha is an artist. She writes songs when shes driving, when shes in the shower, and
while she sleeps. Her whole being and her whole life have been dedicated to making her life
experiences into art. To make her art, she must feel safe. Affidavit of Kesha Rose Sebert
(hereafter Sebert Aff.) at 1-2.

prevail on her claim for declaratory relief wherein she seeks a declaration by this Court that the
contracts with Dr. Luke and his related entities are void. However, as set forth herein, Kesha
cannot wait until this litigation is concluded.
It bears noting that the Court need not resolve the merits or the facts of this dispute at this
time. Kesha seeks only an order that will allow her career to resume. She seeks a declaration
that the Agreements are invalid as a matter of law and no longer bind her to Dr. Luke, KMI, or
Prescription Songs because Dr. Luke, KMI, and Prescription Songs have terminated the
Agreements by electing damages as a remedy, rather than specific performance. Under clear and
binding New York appellate court authority, such an election terminates the Agreements. There
is no discovery needed to resolve this issue.
Until this Court rules on the declaratory judgment claim, Kesha is at an impasse. She
cannot work with music producers, publishers, or record labels to release new music. With no
new music to perform, Kesha cannot tour. Off the radio and stage and out of the spotlight,
Kesha cannot sell merchandise, receive sponsorships, or get media attention. Her brand value
has fallen, and unless the Court issues this injunction, Kesha will suffer irreparable harm,
plummeting her career past the point of no return. Other New York courts have recognized just
this sort of irreparable harm to young artists and talent whose careers are fleeting and in danger
of destruction if not actively pursued, and this Court should do the same. On the flip side, Dr.
Luke and the other parties to the Agreements can easily be compensated with damages if they
were to prevail in this suit.
Dr. Luke and the other Counterclaim Defendants exercise total control over every aspect
of Keshas young career as a songwriter, recording artist, and performer. Without the full
support of Dr. Luke and the other Counterclaim Defendants, and without funding by SME,

Kesha has no career. Specifically, Dr. Luke, in his role as the head of Kemosabe Records, has
total control over all aspects of Keshas relationship with Sony, including, but not limited to the
creative process, sale, distribution, release, promotion, and marketing. Since Dr. Luke has made
the decision to stifle Keshas career, her career will be destroyed if she cannot resume her work
immediately.
On the other hand, Dr. Luke, Sony, and the other Counterclaim Defendants continue to
create, produce, and release music, a fact easily confirmed by a simple review of popular songs
today on billboard.com or similar sites. To summarize:

Kesha cannot work with Dr. Luke further out of fear for her own physical safety
because of Dr. Lukes heinous acts of abuse. Sebert Aff. at 12.

Dr. Luke and the related entities exercise total control over every aspect of
Keshas career as a recording artist and songwriter.

Affidavit of Bob Ezrin

(hereafter Ezrin Aff.) at 8.

Keshas previously blossoming career is currently being stymied by the litigation

with Dr. Luke and the other Counterclaim Defendants. Affidavit of Jim Urie
(hereafter Urie Aff.) at 4.

The litigation precludes Kesha from engaging in any of the activities to further
her career including the recording of and the promoting, marketing, sales, and
distribution of records -- all of which are controlled by Dr. Luke and those
involved in this litigation. Urie Aff. at 4.

Dr. Luke must know that if he keeps Kesha mired in litigation, he can out fund
her and ultimately destroy her, regardless of whether they prevail in the litigation.
Ezrin Aff. at 8.

Kesha is unable to record, write, publish, and perform music as long as Dr. Luke
and the other Counterclaim Defendants refuse to walk away from the exclusivity
provisions of the contracts that control every facet of her career. Affidavit of
Shep Gordon (hereafter Gordon Aff.) at 4.

No mainstream distribution company will invest the money necessary to distribute

songs for an artist who has fallen from the public eye, as is happening to Kesha at
this very moment. Urie Aff. at 6.

Dr. Luke continues to flourish while Kesha flounders. Ezrin Aff. at 8.

If Kesha cannot resume her career immediately without the backing of a major
recording label in the immediate future, her career is over. Urie Aff. at 7; Ezrin
Aff. at 9; Gordon Aff. at 5.

Accordingly, this Court should issue a preliminary injunction enjoining Dr. Luke, KMI,
and Prescription from hampering Keshas career until the Court rules on the declaratory
judgment cause of action. Such an injunction would not harm Dr. Luke, who is free to continue
making music with other artists. But more importantly, this is the only course of action that
keeps Kesha safe and allows her star to rise once again.
Alternatively, if this Court does not enter an injunction permitting Kesha to work with
other producers, production companies, and record companies, she will be irreparably harmed
while Dr. Luke and the other Counterclaim defendants will suffer no harm in the face of such an
injunction given that they continue to flourish. As such, Kesha respectfully requests that the
Court enter an order enjoining the Counterclaim Defendants from interfering with Keshas
working with other producers and production companies and ordering Prescription Songs, LLC
to issue all customary and necessary publishing licenses in connection with the release of the

Kesha music, including but not limited to the mechanical and synchronization licenses required
with respect to the sales, promotion, and marketing of the songs to the consumer.2
BACKGROUND
Kesha first met Dr. Luke over ten years ago while she was an aspiring artist in Nashville,
Tennessee. Immediately recognizing her talents, Dr. Luke showed her with promises of fame
and fortune, ultimately convincing her to drop out of high school, to leave her life behind, and to
move to Los Angeles to write and record music with him as her producer and mentor. In 2005,
Dr. Luke signed Kesha to his music production company.
Upon arriving in Los Angeles, Kesha soon learned that Dr. Luke was not the mentor he
represented himself to be. A far cry from a mentor, Dr. Luke began to violently abuse the young
Kesha, who was now uprooted from her hometown, isolated from her family and friends, and
alone in Los Angeles. He made numerous sexual advances towards her. He forced her to take
drugs and alcohol in order to take advantage of her sexually while she was intoxicated. Dr. Luke
raped Kesha in a hotel room after giving her the date rape drug, which he told her were sober
pills. He would tell her she was unattractive, and that her songwriting, vocals, clothing, body,
and appearance were below his standards and Hollywood standards. He would call her a fat
fucking refrigerator and tell her You are not that pretty, you are not that talented, you are just
lucky to have me.
Kesha endured years of unrelenting abuse at the hands of Dr. Luke. As Keshas success
grew, Dr. Luke recognized that he could continue to use her not only for his sexual interests but
also for substantial financial gain. Whenever Kesha attempted to confront Dr. Luke regarding
his abuse, he wielded the exclusivity provisions in the recording agreement between Kesha and
2

It should be noted that Kesha could work with Sony, so long as Dr. Luke and his entities
are not involved.

Dr. Lukes production company, KMI (the KMI Agreement) as a weapon to further torment
her. He threatened to ruin her career if she did not obey his orders. The continuous and ongoing
years of sexual, physical, verbal, and emotional abuse and harassment at the hands of Dr. Luke
took their toll on Kesha, who was forced to seek emergency medical help.
The other Counterclaim Defendants have chosen to turn a blind eye towards Dr. Lukes
conduct and, instead of terminating Dr. Lukes services, have fueled his career and abuse. SME
invested $60 million into Dr. Luke and his related business entities (KMI, Prescription Songs,
Kemosabe Entertainment, and Kemosabe Records) and transformed him into a music industry
executive with complete and unbridled discretion over the production, recording, publishing,
releasing, and marketing of Keshas music. Collectively, Counterclaim Defendants hold all of
the keys to Keshas career. Ezrin Aff. at 8.
Kesha endured Dr. Lukes unrelenting exploitation and mistreatment for as long as
possible, but ultimately, it was too much to handle. Kesha stopped releasing music in November
2013 because she feared for her physical safety and could not work with Dr. Luke. The other
Counterclaim Defendants refused to take any action against Dr. Luke, clearly favoring their $60
million investment in Dr. Luke over Keshas safety, wellbeing, and career. In January 2014,
Kesha entered a rehabilitation treatment center in Illinois to save her life. Ultimately, the doctors
concluded that Dr. Luke had physically and psychologically damaged Kesha to the point where
continuing such contact would be life threatening. She has had no meaningful contact with Dr.
Luke since.
But Dr. Luke is not out of Keshas life. No longer able to control and abuse Kesha
physically, Dr. Luke, his business entities, and his business partner SME are currently destroying
her career by preventing her from making music or money. To date, Dr. Luke and the other

Counterclaim Defendants have claimed an exclusive right to Keshas services due to the
exclusivity provision in the KMI Agreement. Gordon Aff. at 4. Dr. Luke and the other
Counterclaim Defendants refuse to allow Kesha to record music with anyone else or release and
market music to the public. Id. SME refuses to market Keshas albums and cast aside its verypublic commitment to Dr. Luke. Besides SME, there are only two other major players in the
music industry: Universal Music Group and Warner Music Group. Ezrin Aff. at 5. No record
company will enter into an agreement with Kesha to market, promote, record, or release her
music as long as Dr. Luke and the Counterclaim Defendants threaten to enforce the exclusivity
provision and claim ownership to the recordings, and the profits, done for other companies. Dr.
Luke admits in his First Amended Complaint that he refused (and refuses) to walk away from
his contractual rights First Amended Complaint (hereafter FAC) at 7 (emphasis added),
and that [n]o record company would or could sign [Kesha] to a deal because she was
already signed to KMI. Id. at 29 (emphasis added).
Keshas rise to success coincided with a transition phase in the music industry. While
Counterclaim Defendants were originally engaged to help Kesha record, produce, and market her
music, they now would rather watch her career fade out of existence than adapt to the new
music industry dominated by digital downloads and streaming music. It is obvious that SME is
favoring its multi-million dollar investment in Dr. Luke over its platinum-selling artist, Kesha.
A cursory glance at the most recent Billboard music charts shows that SME and Dr. Luke are
cashing in on other artists while they litigate this matter until Keshas career dies.
Indeed, Dr. Luke has threatened to tie Kesha and her career up in litigation forever. As a
record producer, and now as a record executive, Dr. Luke is keenly aware of the limited shelflife for young female artists and that a young pop stars fame will fade quickly, and permanently,

due to loss of momentum. Urie Aff. at 6-7; Ezrin Aff. at 9. Instead of promoting Keshas
career, Dr. Luke has initiated the instant litigation in retaliation for Kesha asserting her claims
for physical injuries and Dr. Lukes tortious conduct in California. Dr. Luke, SME, and the other
Counterclaim Defendants would rather see Keshas career free-fall as a result of their
coordinated litigation tactics than launch higher with another recording company.
However, the KMI Agreement has been terminated as a matter of law, for reasons stated
herein, and in this litigation Kesha seeks a declaratory judgment that the KMI Agreement is
invalid, freeing her from Dr. Luke. Accordingly, because the KMI Agreement is invalid, Dr.
Luke and KMI have no right to enforce the exclusivity provision, or any other provision thereof.
To summarize: If Kesha is embroiled in the unseemly world of litigation with Dr. Luke
and the other Counterclaim Defendants for too long, there will be no career to resume once this
battle is over. Ezrin Aff. at 9; Gordon Aff. at 5; Urie Aff. at 7.
As set forth below, courts have recognized the importance of allowing young artists to
pursue their careers, particularly where those careers are fleeting and in danger of destruction if
not timely pursued. Therefore, this Court should issue an injunction enjoining KMI and Dr.
Luke from interfering with Keshas career until the declaratory judgment cause of action is
resolved.
///
///
///

ARGUMENT
I.

THE COURT SHOULD ENTER A PRELIMINARY INJUNCTION ENJOINING

KMI, DR. LUKE, AND ALL RELATED INDIVIDUALS AND ENTITIES FROM
INTERFERING WITH KESHAS CAREER AND FURTHER DIRECTING
PRESCRIPTION SONGS TO COOPERATE WITH KESHA, AS NEEDED,
UNTIL THE COURT HAS RULED ON HER DECLARATORY JUDGMENT
CAUSE OF ACTION.
Due to their election of remediesdamages as opposed to specific performanceDr.

Luke, KMI, and Prescription Songs have, as a matter of law, terminated the KMI Agreement and
the agreement between Kesha and Prescription Songs (the Prescription Publishing Agreement)
(collectively the Agreements). As a result, the exclusivity provisions are no longer in force.
However, until this Court issues a declaratory judgment to that effect, Dr. Luke, KMI, and
Prescription Songs will continue preventing Kesha from working with other music producers
based on the exclusivity provisions. Their actions will cause irreparable harm to Keshas career,
and the Court should not allow this to occur. As such, Kesha seeks an order from this Court
enjoining Dr. Luke, KMI, and Prescription Songs from doing the following: (1) hindering Kesha
from producing, promoting, or distributing music; (2) taking any steps to enforce the exclusivity
provisions, including asserting to third parties any claim of exclusive rights in and to Keshas
services as a recording artist or threatening with legal action any third parties who may deal or
contract with Kesha for her services; and (3) otherwise interfering with Keshas career.
This Court should grant the preliminary injunction because: (1) Kesha is likely to succeed
on the merits of her declaratory judgment cause of action; (2) Kesha will suffer irreparable injury
absent an injunction; and (3) the balance of the equities is in Keshas favor. See W. T. Grant Co.
v. Srogi, 52 N.Y.2d 496, 517 (1981); Leiman v. 310 W. 56th St. Corp., 270 A.D.2d 211, 211 (1st
Dept. 2000). Courts apply these factors flexibly. See Bashein v. Landau, 96 A.D.2d 479, 479
(1st Dept. 1983) ([I]t has become increasingly accepted that these principles must be applied

flexibly in terms of the underlying realities of the individual situation.).

New York courts have issued preliminary injunctions in cases involving young musicians
who, like Kesha, face irreparable damage to their careers. For instance, in Milstead v. O Records
& Visuals, Ltd., 1984 WL 433, at *3 (S.D.N.Y. June 5, 1984), the court granted a preliminary
injunction enjoining the record company, its president, and all affiliated parties from, during the
pendency of the declaratory judgment action as to validity of a recording agreement, asserting
to third parties any claim of exclusive rights in [the] plaintiffs services as a recording artist, or
from threatening with legal action any third party who may deal or contract with [the] plaintiff
for such services, or from otherwise interfering with [the] plaintiffs dealings with third parties
with regard to such services. Similarly, in Then v. Navarro, 2015 WL 1878624, at *3 (N.Y.
Sup. Ct. Apr. 17, 2015), the court issued a preliminary injunction enjoining the defendants and
all affiliated parties from: (a) taking any steps to enforce any exclusivity provisions, terms,
clauses, or features of the . . . Management Agreement and Exclusive Artist recording
Agreement . . . ; (b) taking any steps to interfere with or in any way hinder any attempt or effort
on the part of plaintiffs or by any person or entity on behalf of plaintiffs to produce or promote
any record or record album . . . ; (c) taking any steps to interfere with or in any way hinder any
attempt or effort on the part of plaintiffs or by any person or entity on behalf of plaintiffs to
manufacture, distribute or otherwise commercially exploit or use the name and/or likeness of
plaintiffs . . . ; [and] (d) taking any steps to interfere with or in any way hinder the negotiation,
execution and performance of any contract plaintiffs may enter into with a record label. This
Court should similarly prohibit Dr. Luke, KMI, and Prescription Songs from interfering in
Keshas career while Keshas claim for declaratory relief is pending.

10

A.

Kesha Is Likely to Succeed on the Merits of Her Declaratory Judgment

Cause of Action.

The first cause of action in Keshas Answer and Counterclaims is a request for
declaratory relief pursuant to New York Civil Practice Law 3001. Section 3001 provides that
[t]he supreme court may render a declaratory judgment having the effect of a final judgment as
to the rights and other legal relations of the parties to a justiciable controversy whether or not
further relief is or could be claimed. Kesha seeks a declaratory judgment that the Agreements
are no longer in force. She will succeed on this cause of action as a matter of law because by
filing a complaint for damages rather than seeking specific performance, Dr. Luke, KMI, and
Prescription Songs have terminated the agreement.3 Under New York law, an anticipatory
breach, like any other breach, gives the non-breaching party two mutually exclusive options. It
may elect to treat the contract as terminated and exercise [its] remedies, or continue to treat the
contract as valid. Viacom Outdoor, Inc. v. Wixon Jewelers, Inc., 25 Misc. 3d 1230(A) (1st Dept
2009) (emphasis added); see also InterPower of New York, Inc. v. Niagara Mohawk Power
Corp., 259 A.D.2d 932, 934 (3d Dept 1999) (although a party can either treat the entire contract
as broken and sue immediately for the breach or reject the proposed breach and continue to treat
the contract as valid, the party must make an election and cannot at the same time treat the
contract as broken and subsisting because [o]ne course of action excludes the other)
(emphasis added) (internal quotation marks omitted).
Dr. Luke, KMI, and Prescription Songs FAC repeatedly alleges that Kesha has
repudiated the Agreements. See FAC at 8, 45-46, 49, 75. It also alleges that Kesha has
already breached at least three material terms of the Agreements. FAC at 46. For this
alleged complete repudiation and breach of the Agreements, the FAC seeks only damages, and
3

The Counterclaim Defendants have filed a motion to dismiss all of Keshas claims
except the declaratory relief cause of action.

11

does not seek specific performance.

FAC at 76.

Accordingly, Dr. Luke, KMI, and

Prescription Songs have elected to treat the Agreements as terminated, rather than seek specific
performance, and the Agreements are terminated as a matter of law.
B.

Kesha Will Suffer Irreparable Harm if the Preliminary Injunction Is Not

Granted.

Because Kesha is likely to succeed on the merits of her declaratory judgment cause of
action, the Court should issue a preliminary injunction enjoining enforcement of the Agreements
and enjoining Dr. Luke, KMI, Prescription Songs, and all affiliated parties and entities from
otherwise interfering with Keshas business.

Without injunctive relief, Kesha will suffer

irreparable harm. In the pop music industry, youth and freshness are essential to an artists
success. One who disappears from the spotlight, even for a short time, risks losing relevance
forever. Absent this Courts entering of an injunction against Dr. Luke and his businesses,
Keshas career will be irreparably harmed. Urie Aff. at 7; Ezrin Aff. at 9; Gordon Aff. at 5.
Courts have recognized that young artists face irreparable harm when their careers are
sidelined in this manner. For example, in Then v. Navarro, 2015 WL 1878624, young vocal
musicians in the urban bachata band Grupo 24 Horas sought a preliminary injunction to bar its
manager and production company from enforcing an exclusive management and recording
agreement.

The court held that irreparable harm was established by the damage to the

goodwill of the band within the music industry and among their fans as they were prevent[ed]
from exploiting their current youth in a market that particularly values such fleeting commodity.
Id. at *2. The court stated that as the band was forced to sit on their hands . . . the urban bachata
music market ask[ed], Where is Grupo 24 Horas? What happened to those guys? Werent they
supposed to be the next big thing? Indeed, moment by moment . . . results in lost opportunity

12

for status and fame for [the band], which cannot be recouped, and which cannot adequately be
compensated by money. Id.
Similarly, in Milstead v. O Records & Visuals, Ltd., 1984 WL 433, the court determined
that a recording artist would be irreparably harmed if the record company was not restrained
from interfering with the recording artists negotiations and contractual relations with others
during the pendency of the lawsuit. The artist entered into an exclusive recording contract with
O Records, under which the artist could not make records with any other parties. After O
Records breached its contractual obligation to render an accounting, the artist informed O
Records and its president that it was a material breach. At the same time, the artist negotiated a
new recording contract with a third party. O Records informed the third party that it still had an
exclusive contract with the plaintiff and, unless the third party withdrew, the third party would be
liable for damages. The artist filed suit seeking damages, a declaration that he was not obligated
to O Records, and an injunction preventing O Records and its president from interfering with his
negotiations or contracts with others in the music industry. The court granted the preliminary
injunction, finding irreparable harm because injury to [the artists] career that will follow from
his inability to produce new records during this litigation and the resultant decline in his public
exposure clearly goes beyond any quantifiable lost earnings. Where, as here, the harm that may
be inflicted during the pendency of an action cannot be calculated with certainty that would
make damages an adequate remedy, the irreparable injury aspect of the preliminary injunction
standard is satisfied. Id. at *2.
Kesha experienced great success early in her career. Kesha currently has music ready to
record, but she cannot do so because Dr. Luke, KMI, and Prescription Songs will threaten to sue
any music producer or record company that becomes involved. Unless the Court enjoins them

13

from doing so, Kesha will be forced to sit on [her] hands while the pop music market asks,
Where is Kesha? What happened to her? Wasnt she supposed to be the next big thing? See
Then, 2015 WL 1878624, at *2. As was the case in Then, moment by moment results in lost
opportunity for Kesha. This is her one chance for fame and success, and she should be permitted
to freely record now without the baseless interference of Dr. Luke, KMI, and Prescription Songs.
If the injunction is denied, and Kesha must wait for a resolution of her declaratory judgment
cause of action on the merits (and she will win as a matter of law), there will be no career to
resume once the litigation ends. This injury to [her] career that will follow from [her] inability
to produce new records during this litigation and the resultant decline in [her] public exposure
clearly goes beyond any quantifiable lost earnings, and constitutes irreparable harm. Milstead,
1984 WL 433, at *2.
C.

The Balance of Equities Favors a Preliminary Injunction.

Balancing the equities requires that the irreparable injury to be sustained . . . is more
burdensome [to the moving party] than the harm caused to the [opposing party] through
imposition of the injunction. Destiny USA Holdings, LLC v. Citigroup Global Mkts. Realty
Corp., 69 A.D.3d 212, 223 (4th Dept 2009) (internal quotations omitted).

Denial of the

preliminary injunction would impose extraordinary prejudice on Kesha. Notably, in Then, the
court determined that the equities surely weigh in favor of young musicians being enabled to
use their talents to their fullest extent. 2015 WL 1878624, at *2. Cf. Machen v. Johansson, 174
F. Supp. 522, 531 (S.D.N.Y. 1959) (refusing to enforce exclusivity agreement because boxer in
prime of career would have been unable to advance his position . . . during a period that might
well represent a relatively large portion of his effective career and damage would have been
very great). Similarly, Kesha, who is young and was in the prime of her career, will suffer
irreparable harm if she cannot take advantage of this important time in her life.

14

In contrast, imposing the preliminary injunction on Dr. Luke, KMI, and Prescription
Songs would not cause any prejudice since they themselves made the election of remedies that,
as a matter of law, voided the Agreements. Further, each is free to make music (and money)
with other young talent. In fact, Dr. Luke and his businesses have continued to release hit songs
with other artists. Finally, even if the court were to rule for Dr. Luke, KMI, and Prescription
Songs on the declaratory judgment action (which it should not), any harm they suffered could be
adequately compensated by money. See Star Boxing v. Tarver, 2002 WL 31867729, at *6
(S.D.N.Y. Dec. 20, 2002) (enforcing exclusivity agreement of boxer, whose career is measured
in years, not . . . in decades would cause irreparable harm, while boxers promoter could be
compensated by money).
In sum, since the Agreements have been terminated, Dr. Luke, KMI, and Prescription
Songs are not entitled to Keshas services as a matter of law, so any claim of prejudice should
fall upon deaf ears. Moreover, as Dr. Luke and his businesses are not impacted by the litigation
and will not be impacted by the issuance of an injunction, the equities weigh heavily in Keshas
favor.
///
///
///

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CONCLUSION
For the foregoing reasons, this Court should grant Keshas motion for a preliminary
injunction and enter orders: (1) enjoining all defendants from interfering with Keshas recording
career; and, (2) ordering Prescription Songs, LLC to issue all customary and necessary
publishing licenses in connection with the release of the Kesha music, including but not limited
to the mechanical and synchronization licenses required with respect to the sales, promotion, and
marketing of the songs to the consumer.

Respectfully submitted
Dated: New York, New York
September 18, 2015

GERAGOS & GERAGOS, APC

By: /s/ Tina Glandian
_
Mark J. Geragos, Esq. (pro hac vice)
Tina Glandian, Esq.
Tyler M. Ross, Esq.
c/o 7 W 24th Street, Suite 2
New York, New York 10010
geragos@geragos.com
Phone: (213) 625-3900
Attorneys for Defendant and Counterclaim
Plaintiff Kesha Rose Sebert

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