Kesha Amended Counterclaims

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653118/2014
FILED: NEW YORK COUNTY CLERK 01/30/2017 11:20 PM

NYSCEF DOC. NO. 629
SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
--------------------------------------------------------------- x
:
LUKASZ GOTTWALD p/k/a DR. LUKE; KASZ :
MONEY, INC.; and PRESCRIPTION SONGS,
:
LLC,
:
:
Plaintiffs,
:
:
-against:
:
KESHA ROSE SEBERT p/k/a KESHA,
:
:
Defendant.
:
_________________________________________
:
KESHA ROSE SEBERT p/k/a KESHA,
:
:
Counterclaim-Plaintiff,
:
:
-against:
:
LUKASZ GOTTWALD p/k/a DR. LUKE; KASZ :
MONEY, INC.; and PRESCRIPTION SONGS,
:
LLC,
:
:
Counterclaim-Defendants.
:
:
:
--------------------------------------------------------------- X
RECEIVED NYSCEF: 01/30/2017
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COUNTERCLAIM-PLAINTIFF
KESHA ROSE SEBERTS
SECOND AMENDED
COUNTERCLAIMS
Jury Trial Demanded

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Counterclaim-Plaintiff Kesha Rose Sebert, by and through her undersigned attorneys, as

and for her Second Amended Counterclaims against Lukasz Gottwald (Dr. Luke); Kasz
Money, Inc. (KMI); and Prescription Songs, LLC (Prescription) (collectively, the Dr. Luke
Parties), upon knowledge as to her own actions, and information and belief as to others actions,
alleges the following:
I.
NATURE OF THE CASE

1.
You can get a divorce from an abusive spouse. You can dissolve a partnership if
the relationship becomes irreconcilable. The same opportunityto be liberated from the
physical, emotional, and financial bondage of a destructive relationshipshould be available to a
recording artist. After a February 19, 2016 preliminary injunction hearing, Kesha Rose Sebert is,
for the time being, no longer forced to record in the same room with Lukasz Dr. Luke
Gottwald, the abusive music producer who has had her under contract for the past eleven years.
But allowing Kesha to make music outside Dr. Lukes presence does not free her from her
abusers control.
2.
Since that hearing, over Keshas continued objection, Dr. Luke has insisted that
he has yielded no power whatsoever in his ability to make decisions controlling Keshas music,
life, and career. While Kesha moved quickly after the hearing to begin recording a new album,
the process was met with intransigence that only abated because of proceedings in the litigation.
While the parties are finally recording, to date, not one song has been approved, no release date
has been set, and there has been no agreement on the critical issue of whether the album will be
promoted commensurate with an artist of Keshas stature and historical success. Kesha cannot
be left indefinitely in the hands of Dr. Luke without the protection of the Court or the
intervention of Sony as a buffer between Dr. Luke and Kesha. Such a situation is completely
untenable.
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3.
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In the eleven months since the preliminary injunction hearing, Dr. Luke has
deployed other methods of punishment and coercion. As with many abusers, he first cut off
Keshas finances. Between 2014 and December 2016, he refused to provide Kesha the
paymentsor even the accounting statementsfor hundreds of thousands of dollars owed under
their music publishing contract. It was not until Keshas counsel recently threatened further
legal action that Dr. Luke released certain funds owed to Kesha in December 2016, two years
after they were due. Still, he has not paid her all of the amounts owed. Dr. Luke has similarly
worked to deprive Kesha of royalties from Timber, the multimillion-unit hit that she recorded
and co-wrote with Pitbull. Until the issue was raised with the Court, Kesha had received none of
the recording royalties or publishing royalties on Timber she was owed.
4.
Dr. Luke has aggressively sought to financially destroy Kesha by keeping her
under his control while simultaneously waging a nuclear litigation campaign against her. Dr.
Luke has refused repeated requests to release Kesha from her contract, even if he is paid every
dollar he would otherwise make, and even if the record were released on his record label. This
is not about money or business. It is a vendetta against Kesha. To be clear, Kesha does not seek
the renegotiation of contractual terms. She is not demanding more money. Kesha asks for
something far more basic: the freedom to make music without being bound indefinitely to the
very producer who subjected her to years of abuse and continues that abuse to this day. Dr. Luke
seeks tens of millions of dollars in punitive damages from Kesha and her mother. If successful,
Kesha and her mother would be penniless. Kesha cannot be expected to work for Dr. Luke
under these circumstances, nor can Dr. Luke be expected to make objective decisions and act in
good faith under the contracts at issue. Kesha has offered to allow Sony to control all decision-

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making and authority currently exercised by Dr. Luke. Dr. Luke has refused without any reason
other than to exact control and retribution.
5.
As a victim of abuse, Kesha is entitled to protection under both New York and
California law and public policy. Under New York law, no one is expected to endure at home or
work verbal abuse and physical threats, and a victim can obtain, for instance, a divorce, legal
separation, protective order, or damages to ensure her physical and emotional safety. Dr. Lukes
abuse in the context of Keshas three contracts is no different. His delay in paying royalties, in
releasing new music, and in living up to the promises he made to the Court at the preliminary
injunction hearing constitute breaches of the contracts and breaches of the covenant of good faith
and fair dealing. Under Californias Labor Code, quasi-lifetime contracts are unenforceable as a
matter of public policy in the entertainment industry. Californias Seven Year Rule requires that
these contractsbetween two California residents, performed almost entirely in California
shall be terminated because they have been enforced for up to eleven years.
6.
While Kesha is hopeful a new album will be released sometime in the future, the
only progress that has been made on the album has been after hearings in this Court. But this
case will not continue forever. Dr. Lukes continued and ongoing misconduct entitles Kesha to
both damages and termination of the contracts.
II.
THE PARTIES
7.
Kesha Rose Sebert is an individual and a resident of Los Angeles, California. She
is a recording artist and songwriter known professionally as Kesha.

8.
Lukasz Gottwald is an individual and a resident of California. He is a music
producer known professionally as Dr. Luke.

9.
KMI is a New York corporation founded, owned, and controlled by Dr. Luke.
KMI is a music production company. KMIs principal place of business is California.

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10.
Prescription is a California limited-liability company founded, owned, and
controlled by Dr. Luke. Prescription is a music publishing company. Prescriptions principal

place of business is California.
11.
Dr. Luke, as a principal of KMI and Prescription, acted on behalf of these entities,
in furtherance of their businesses, and within the scope of his agency or employment at all
relevant times described herein.
III.
JURISDICTION AND VENUE

12.
This Court has personal jurisdiction over the Dr. Luke Parties pursuant to New
York Civil Practice Law and Rules (CPLR) Section 301 and 302.
13.
Venue in this county is proper under the three contracts at issue because each
provides that New York County shall be the venue for any controversies relating to the contract.
Venue is also proper in this county under CPLR Section 503.
IV.
STATEMENT OF FACTS
14.
Kesha was still in high school when she was discovered by Dr. Luke, who was by
then established as an industry heavyweight. To agree to help Kesha make it in the music
industry, Dr. Luke required Kesha to enter into three contractswith no termination datesthat
granted him and his companies exclusive rights to the lyrics Kesha writes and the songs she
sings. The three contracts cover music production, publishing, and recording. Under these
contracts, Kesha is bound to Dr. Luke with no temporal limitation. Rather, she is bound until Dr.
Luke, in his unilateral discretion, releases five of her albums. As of the filing of these Second
Amended Counterclaims, the oldest of the three contracts has been in effect for nearly eleven
yearsand Dr. Luke is still demanding that Kesha deliver three more albums.
15.
Shortly after the first contract was executed, Dr. Luke began verbally and
emotionally abusing Kesha. This abuse later escalated to physical threats. Like many women in
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abusive relationships (especially with abusers who retain complete economic control), Kesha
feared the consequences of speaking out. She stayed silent for years, afraid that if she exposed
Dr. Lukes conduct, he would ruin her career.
16.
When Kesha did speak out, Dr. Luke filed this lawsuit against her. Kesha then
filed a motion for a preliminary injunction requesting that the Court enjoin Dr. Luke and his
companies from interfering with her recording career such that Kesha could write, record, and
release music without any involvement from Dr. Luke. The Court denied her motion based
primarily on promises by Dr. Luke and Sony that Kesha could record her next albumher
thirdwithout Dr. Lukes involvement. Despite these promises to the Court, Dr. Luke remains
in controla fact repeatedly conceded by his counsel both to the Court and to Kesha. Until a
hearing in late August 2016, there was no progress on Keshas third album: there were no
producers approved, no creative meetings with anyone but Dr. Lukes representatives, no songs
approved, no release date set, no budgets put in place, no checks written, and no meeting even
between the artist and the record label.
17.
Dr. Luke insists that the contracts remain unchanged and in full force, and that he,
as CEO of Kemosabe RecordsKeshas record labelmaintains veto power over every

important decision regarding Keshas third album including approval of songs, approval of any
promotional plan, and whether and when the album will be released. Dr. Luke has stated he has
only allowed Sony to participate as an accommodation, making clear Sony has no right to do
anything without his approval.
18.
The current situation is untenable and will only get worse. Dr. Luke is poised to
acquire even greater control over Kesha and her career in March 2017, when Sonys contract
with Dr. Luke and his companies purportedly ends. The end of this contract means that Sony

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may no longer have any role in the creation of Keshas music, leaving Keshas livelihood in the
hands of a person aiming to bankrupt her and her family through litigation, cutting off her
legitimately earned income, and personally humiliating her as he has done for years. Without the
Courts intervention and Sonys facilitation, Kesha will remain contractually bound to Dr. Luke
until she releases three additional albums, each containing six songs produced individually by
Dr. Luke, no matter how many years that takes.
A.
Three Contracts Bind Kesha Indefinitely to Dr. Luke and His Companies.
19.
When Dr. Luke met Kesha in early 2005, she was a 17-year-old aspiring singer-
songwriter in Nashville, Tennessee. After hearing Keshas demo tape and recognizing her
musical talents, Dr. Luke encouraged Kesha to drop out of high school and move to Los Angeles
to pursue a career as a recording artist under his direction. Kesha dropped out of high school and
moved to Los Angeles in mid-2005.
20.
Between December 2005 and mid-2009, Dr. Luke required that Kesha enter into a
series of exclusive music contracts involving companies that Dr. Luke owns or operates,
including a production and furnishing contract, a publishing contract, and a recording contract
(together, the Three Contracts).
The KMI Contract (Music Production and Furnishing)
21.
On September 26, 2005, at the age of 18, Kesha entered into a music production
and furnishing contract with KMI, the music production company that Dr. Luke founded, owns,
and operates (the KMI Contract).
22.
The contract grants KMI exclusive rights to produce Keshas music and requires
Kesha to engage Dr. Luke individually to render production services in connection with at least
six songs on every album produced under the contract. Under the contract, KMI is required to
pay Kesha royalties.
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23.
The contract is a personal service contract.
24.
The contract has no termination date.
25.
By granting KMI exclusive music production rights, Kesha believed that she
would receive in return a music production partner that would perform under the contract in
good faith and in furtherance of her reasonable interests in writing, recording, producing, and
marketing her music.
26.
Rather than bind Kesha to KMI for a specific period of time, the KMI Contract, as
amended, binds Kesha to KMI until Kesha records up to five albums produced exclusively by
KMI. The contract, as amended, is divided into a first contract period and four separate contract
period options, each of which KMI may exercise at its sole discretion. A contract period ends
only when Kesha releases an album.
27.
KMI has thus far exercised each available contract period option, binding Kesha
to KMI and Dr. Luke until she records her third album. If and when Keshas third album is
complete, KMI may exercise the options for fourth and fifth albums.
28.
Kesha has recorded and released two albums under the KMI Contract: Animal
(2010) and Warrior (2012). Since Warriors release, the KMI Contract has remained in the
second option period, which will not end until Kesha releases a third album produced by KMI.
29.
The KMI Contract has been in effect for over 11 years.
The Prescription Contract (Music Publishing)

30.
On November 26, 2008, Kesha entered into an exclusive music publishing
contract with Prescription (the Prescription Contract).

31.
Under the Prescription Contract, Prescription secured a 50% interest in all
compositions that Kesha writes, and the exclusive right to administer her compositions. Under
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the contract, Prescription is required to pay Kesha royalties and send Kesha semiannual
statements of royalties she is owed.
32.
The contract is a personal service contract.
33.
The contract has no termination date.
34.
By granting Prescription exclusive music publishing rights, Kesha believed that
she would receive in return a music publication partner that would perform under the contract in
good faith and in furtherance of her reasonable interests in writing, recording, producing, and
marketing her music.
35.
Rather than bind Kesha to Prescription for a specific period of time, the
Prescription Contract binds Kesha to Prescription until Kesha records three albums published
exclusively by Prescription. The contract is divided into an initial period and two separate option
periods, each of which Prescription may exercise at its discretion. A contract period ends only
when Kesha releases an album.
36.
Prescription has exercised both of the available option periods, binding Kesha to
Prescription until she releases three albums.

37.
Kesha has recorded and released two albums under the contract: Animal and
Warrior. Since Warriors release, the contract has remained in the second option period, which
will not end until Kesha releases a third album published by Prescription.
38.
The Prescription Contract has been in effect for over eight years.
The KMI-Kemosabe Records Contract (Recording)

39.
On January 27, 2009, KMI entered into a recording contract with RCA, a record
label of Sony. The contract includes an Assent and Guarantee executed by Kesha, pursuant to
which she assented to the execution of the contract. On March 1, 2012, RCA assigned its rights
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and obligations under the contract to Kemosabe Records, of which Dr. Luke is the CEO and
Sony is a joint venture partner. Because of RCAs assignment, the contract is now in force
between two Dr. Luke-controlled companies, KMI and Kemosabe Records (the KMI-Kemosabe
Records Contract).
40.
Under the KMI-Kemosabe Records Contract, KMI and Kemosabe Records agreed
that Kesha would exclusively record and release albums for Kemosabe Records, with Dr. Luke
individually producing at least six songs on every album.
41.
The KMI-Kemosabe Records Contract is a personal service contract.
42.
The KMI-Kemosabe Records Contract has no termination date.
43.
By executing the Assent and Guarantee, Kesha believed that she would receive in
return music recording partners that would perform under the contract in good faith and in
furtherance of her reasonable interests in writing, recording, producing, publishing, and
promoting her music.
44.
Rather than bind Kesha to KMI and Kemosabe Records for a specific period of
time, the KMI-Kemosabe Records Contract binds Kesha to KMI and Kemosabe Records until
Kesha records five albums. The contract is divided into a first contract period and four separate
contract period options, each of which Kemosabe Records may exercise at its sole discretion. A
contract period ends only when Kesha releases an album.
45.
Kesha has recorded and released two albums under the contract: Animal and
Warrior. Since Warriors release, the contract has remained in the second contract period,
which will not end until Kesha releases a third album.
46.
RCA and/or Kemosabe Records has exercised each available contract period
option, binding Kesha to KMI and Kemosabe Records until she releases her third album. If and
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when Keshas third album is released, Kemosabe Records may exercise its options for fourth and
fifth albums.
B.
Dr. Luke Verbally Abuses and Physically Threatens Kesha.
47.
Throughout their decade-long contractual relationship, Dr. Luke has verbally
abused and physically threatened Kesha. Dr. Lukes verbal abuse and physical threats caused
Kesha to fear for her physical safety and psychological wellbeing.
48.
Dr. Luke has aimed his verbal abuse at Keshas body, weight, appearance, and
singing ability to ruin her self-worth. For example:

a) During 2012 and early 2013, Kesha filmed music videos with Dr. Luke for two
Warrior singles, Die Young and Cmon. Although Kesha was of a healthy body weight, Dr.
Luke made comments about her size and appearance. Dr. Luke compared her body to those of
other female singers and told Kesha that those singers were prettier than she because they ate less
and exercised more. Dr. Luke ordered Kesha not to eat and berated her when he caught her
eating. Dr. Luke told Kesha (i) You cant eat; youre going to work out while everyone else
eats; and (ii) Why dont you just not eat? Youre disgusting. Dr. Luke instructed his
employee to monitor Kesha and report to him if Kesha ate when she was not supposed to or
complained about being hungry. In June 2012, Kesha subsisted primarily on juice at Dr. Lukes
directive. When Kesha requested a Diet Coke or even some turkey, Dr. Luke criticized her to
others and ordered them not to allow her to deviate from her juice cleanse. Kesha overheard Dr.
Lukes comments, causing her to leave a recording session in tears. Later that same night, Dr.
Luke, unprompted, emailed Keshas day-to-day assistant an article about how global weight gain
is a greater threat to the planet than a rapidly increasing population. Dr. Luke also held a
conference call with Keshas family members and manager to criticize Keshas appearance and
assert that she was overweight for a female artist. Dr. Lukes comments were communicated to
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Kesha.
b) In or around mid-2012, when Kesha and Dr. Luke were in the process of writing
and recording Warrior in Dr. Lukes Malibu home, Dr. Luke referred to Kesha as his property:
I own you bitch, go write me a song so I can buy a yacht. When Kesha complied with Dr.
Lukes demands and wrote songs, he demeaned by her by telling her, You cant write. You
cant sing. You sound like shit compared to other contemporary female artists.
c) In or around late 2012, while reviewing footage of Kesha in her Die Young
music video, Dr. Luke compared Keshas physical appearance to a refrigerator, and mocked that
a refrigerator would look better in Keshas outfit than she did.
49.
Dr. Luke has also threatened Kesha, including with physical violence, on many
occasions. For example:

a) In late 2005 or early 2006 at a Los Angeles restaurant, Dr. Luke threatened Kesha
in front of a prominent record producer that if she disobeyed his musical decisionsor ever
tried to get away from [him]he would keep her tied up in litigation until she went bankrupt
and no one cared about her. As evidence of the credibility of his threats, Dr. Luke explained to
Kesha that he had employed the same tactics to ruin the career of another female artist who
disobeyed him, and that he could just as easily do the same to Kesha. After this threat, two years
passed before Kesha meaningfully interacted with Dr. Luke again. During that time, Kesha
secured an offer for a record deal from Warner Bros. Dr. Luke reacted to this news by
threatening Warner Bros. with a lawsuit that ultimately caused it to rescind its offer to Kesha. In
early 2008, Kesha was present for the recording of Katy Perrys music video for I Kissed a
Girl. There, Dr. Luke threatened Kesha by saying that her attempts to secure a record deal or
management without him were the first strike, and that she did not want to find out what
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happened if she hit three strikes.

b) In or around May 2010, Keshas former management company sued Dr. Luke and
Kesha on the ground that Dr. Luke had forced Kesha to fire the company and replace it with a
management company of which he approved. In June 2011, shortly before Kesha was scheduled
to be deposed in the lawsuit, Dr. Luke took Kesha for a walk on a Los Angeles beach, where he
threatened to harm her if she testified negatively against him or incriminated him in any way.
You know what to do, he told Kesha. You know how to be a good girl. You know what to
say. I have your life and your familys lives in my hands. I can do with you whatever I want. I
own you. If you incriminate me at all, consider your life over. Kesha believed Dr. Lukes
words to be a threat on her safety and life.
c) In or around January or February 2012, following her breakout album, Animal,
Kesha attempted to renegotiate certain terms of the KMI Contract. Such renegotiations are
common when a recording artist achieves commercial success, but Dr. Luke refused to
renegotiate. During that period, Kesha declined to appear at Dr. Lukes Hollywood home for
certain writing and recording sessions for her follow-up album, Warrior. When Kesha returned
to Dr. Lukes home, he became enraged with Kesha and locked Kesha, her mother, and another
woman in a basement near his home. Dr. Luke yelled and screamed at the women in a manner
so hostile and violent that Kesha feared for her physical safety. Dr. Luke threatened Kesha,
You dont know what Im capable of. You are almost at strike three, and you dont want to
know what happens when you get to strike three.
d) In or around mid-2012 during the Warrior writing and recording process at Dr.
Lukes Malibu home, Kesha objected to lyrics he had written for Crazy Kids. When Kesha
said she did not want to include those lyrics, Dr. Luke flew into a rage. He told Kesha that she
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would sing whatever he wanted her to sing, and that if she did not, he would digitally manipulate
her previous recordings to make you say whatever the fuck I want. Dr. Luke then physically
threatened Kesha by moving his body within inches of hers, backing her into a corner, and
raising his arms belligerently. He threatened, If you know whats good for you, youll sing
those words. Kesha believed that Dr. Luke would have struck her had a witness not been
present. Kesha was so fearful that she fled Dr. Lukes house and walked over broken glass along
Pacific Coast Highway to escape him. Around this time, Kesha began recording in a third-party
studio without Dr. Luke present because she feared that he would emotionally or physically harm
her if they had another disagreement. Kesha required her assistant to be present during recording
sessions that had to involve Dr. Luke. Kesha told her assistant that Kesha feared for her physical
safety if left alone with Dr. Luke.
e) Finally, throughout their relationship and continuing through and until 2014, Dr.
Luke repeatedly referred to Kesha in misogynistic terms, including bitch, cunt, whore, and
fat fucking girl.
C.
Kesha Files a California Lawsuit and Dr. Luke Retaliates by Refusing to Pay
Kesha Royalties That She Earned.
50.
In 2014, Kesha filed a complaint in California state court against the Dr. Luke
51.
Kesha did not bring her lawsuit sooner because Dr. Luke had threatened on
Parties.
multiple occasions to harm her, ruin her career, deplete her finances, and take away her recording
and publishing rights if she ever crossed him. Because of these threats, Kesha was afraid to
pursue legal action against Dr. Luke and his companies despite suffering from his abuse for
years.
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52.
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Dr. Luke and his entities took two actions in response. First, he and KMI
(Prescription was later added as a plaintiff) immediately filed this action against Kesha, her
mother, and her manager alleging (among other things) defamation and breach of contract. The
suits against her mother and manager were dismissed. The purpose of Dr. Lukes lawsuit is to
exact revenge on and humiliate Kesha. In depositions, Dr. Lukes team has questioned Keshas
sexual aggressiveness (despite maintaining that he has never had sex with Kesha), questioning
that would be barred by most states rape-shield laws. His counsel has even questioned a witness
for hours as to the identity of Keshas biological father, including repeated questions about
Christmas cards sent between her father and Kesha that have absolutely nothing whatsoever to
do with the allegations in this case.
53.
Second, Prescription stopped issuing accounting statements and royalty payments
to Kesha in violation of the Prescription Contract. From the first quarter of 2014 to December
2016, Kesha did not receive from Prescription any statement of the royalties owed to her under
the Prescription Contract. From the second quarter of 2014 to December 2016, Kesha did not
receive from Prescription any royalties owed to her under the Prescription Contract. It was not
until Keshas counsel threatened further legal action in 2016 that Dr. Luke released certain funds
owed to Kesha in December 2016. Prescription has still not paid Kesha all of the amounts owed.
Kesha is also still owed royalties from Timber that Dr. Luke has previously sought to block.
D.
The Dr. Luke Parties Represent to This Court That Kesha Can Create New
Music Without Dr. Lukes Involvement.
54.
On July 7, 2015, in this Court, Kesha answered the Dr. Luke Parties complaint
and asserted counterclaims against them, Kemosabe Entertainment, Kemosabe Records, and
Sony.
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55.
On September 18, 2015, Kesha filed a motion for a preliminary injunction
requesting that the Court enjoin the Dr. Luke Parties from interfering with her recording career
such that Kesha could write, record, and release music without any involvement from Dr. Luke.
56.
On February 19, 2016, this Court held a hearing on Keshas preliminary
injunction motion. At the hearing, the Dr. Luke Parties, Sony, and Kemosabe Records
represented that Dr. Luke would have no involvement in Keshas next album.
57.
Based on these representations, the Court observed that:

a) Sony, Kemosabe Records, and Dr. Luke had filed papers showing that they are
willing to allow [Kesha] to record without any involvement of Dr. Luke. Dkt. 499 at 7:9-20
(emphasis added).
b) Kesha does not have to have any interface at all with Dr. Luke in recording and
producing, and there is no irreparable harm to her if she does record without [Dr. Luke]s
involvement. Id. at 40:9-13 (emphasis added).
58.
The Court denied Keshas motion for a preliminary injunction. Id. at 40:3-9. The
Court subsequently stated that it did not grant [Keshas motion for an] injunction, largely
because [Kesha] was free to record without any contact with Dr. Luke. Dkt. 504 at 9 n.6.
59.
On February 19, 2016, shortly after the preliminary injunction hearing, Sony
reiterated publicly the promises that it made at the hearing, representing to the New York Times
that Sony has made it possible for [Kesha] to record without any connection, involvement, or
interaction with [Dr. Luke] whatsoever.
60.
In reliance on the Dr. Luke Parties, Sonys, and Kemosabe Records
representations to the Court and the public, Kesha declined a seven-figure opportunity to serve as
a judge on Australias The Voice. Kesha also declined multiple opportunities to appear on
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Broadway. Kesha declined these opportunities so that she would be able to focus her time and
effort on recording her new album.
E.
The Dr. Luke Parties Do Nothing to Support the Release of Keshas Third
Album.
61.
The Dr. Luke Parties led the Court and the public to believe that Dr. Luke would
have no involvement in the creation of Keshas next album. But in the months following the
February 19, 2016 preliminary injunction hearing, Keshas efforts to advance her album have
been met with unreasonable resistance and delay. As of the date of this filing, Kesha still does
not have crucial approvals of songs, a release date for a single or an album, or a promotional
plan.
62.
On April 11, 2016, Keshas representative provided the Dr. Luke Parties, Sony,
and Kemosabe Records (i) a list of 40 producers with whom Kesha could work other than Dr.
Luke, and (ii) a proposed budget for Keshas next album. It took over four months for the Dr.
Luke Parties, Sony, and Kemosabe Records to approve a single producer. To date, no
promotional budget has been finalized. The only promotional plan offered was releasing
Keshas first song in three years with a simple press release for promotional support unless
unnamed metrics supported greater promotion. A press release is wholly inadequate promotion
for an artist of Keshas stature, especially one who has not released new music in three years.
63.
On April 27, 2016, Keshas representative requested that Sonyand, in
particular, RCAs CEO Peter Edgecontrol the creative process with respect to her new album.
Sony provided no response. Kesha reiterated her request on May 10, 2016. Only then did Sony
inform Kesha that Kemosabe Recordsnot Sonywas appointing an A&R consultant, Joshua
Berkman, to head the creative process. In the months that followed, including on June 2, 2016,
Kesha continually pressed Sony to undertake a meaningful role in her new album.
16

NYSCEF DOC. NO. 629
64.
INDEX NO. 653118/2014

On June 22, 2016, Keshas representative provided six songs to Mr. Berkman for
consideration as part of her new album. On July 15, 2016, Keshas representative provided
sixteen additional songs to Mr. Berkman for consideration as part of her new album. On July 25,
2016, Keshas representative flew across the country for what was supposed to be a substantive
and in-depth discussion about the direction of the album. Instead, the meeting lasted just fifteen
minutes, during which Mr. Berkman admitted that no one from Kemosabe Records had listened
to any of the songs and that he himself had only listened to a few. When Mr. Berkman did
provide feedback, it was not until August 9, 2016, nearly two months after Mr. Berkman
received Keshas first set of songs.
65.
On August 12, 2016, Keshas representative requested that Mr. Berkman focus on
a handful of songs and begin putting the album together. Mr. Berkman denied the request,
stating that he could not do so without further detailed discussions.
66.
Despite Sonys recent involvement in the recording process, Dr. Luke has
represented to Kesha that he remains in control of every single decision regarding her music and
career. Indeed, on September 21, 2016, in a joint letter from Dr. Luke and Sony, they informed
Kesha that Sony has been involved in this process solely as an accommodation and that the
terms of the KMI-Kemosabe Records Contract remain in full force. Kesha has continually
objected to Dr. Lukes involvement and maintains it is absolutely contrary to what was
represented to the Court, what was understood by the Court, and what was represented to the
public.
17
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NYSCEF DOC. NO. 629
V.
CAUSES OF ACTION
FIRST CLAIM FOR RELIEF
Breach of the Implied Covenant of Good Faith and Fair Dealing
(Against Dr. Luke, KMI, and Prescription)
67.
Kesha realleges and incorporates each and every allegation contained in
paragraphs 1 through 66 as if stated fully herein.

68.
The Dr. Luke Parties materially breached the implied covenant of good faith and
fair dealing inherent in the valid written KMI Contract and Prescription Contract based on:
a) Dr. Lukes years-long verbal abuse of and physical threats against Kesha as set
forth in paragraphs 47 through 49. Dr. Luke was and is a principal of KMI and Prescription, and
at all relevant times, he acted on behalf of these entities, in furtherance of their business, and
within the scope of his agency or employment.
b) The Dr. Luke Parties failure since the February 24, 2016 preliminary injunction
hearing to act in good faith to facilitate the production and promotion of Keshas third album as
soon as practicable, consistent with their representations at the February 19, 2016 preliminary
injunction hearing.
69.
Kesha has performed and is currently performing under the KMI Contract and the
Prescription Contract.
70.
As a direct and proximate result of the Dr. Luke Parties material breaches of the
implied covenant of good faith and fair dealing, which are continuing as of the date of these
Second Amended Counterclaims, the Dr. Luke Parties have deprived Kesha of the benefits of the
KMI Contract and the Prescription Contract.
71.
As a direct and proximate result of the Dr. Luke Parties material breaches of the
implied covenant of good faith and fair dealing, Kesha has sustained and is continuing to sustain
18
INDEX NO. 653118/2014

NYSCEF DOC. NO. 629
damages, in an amount to be determined at trial, including but not limited to all sums lost
because of her inability to timely complete additional albums.
SECOND CLAIM FOR RELIEF
Breach of Contract
(Against Prescription)
72.

73.
The Prescription Contract is a valid written contract between Kesha and
Prescription.
74.
The Prescription Contract requires Prescription to send Kesha semiannual
statements reflecting royalties owed to Kesha under the contract.

75.
The Prescription Contract requires Prescription to pay royalties owed to Kesha
under the contract.

76.
Kesha has performed and is currently performing under the Prescription Contract.
77.
Prescription materially breached the contract by (i) failing, between the first
quarter of 2014 to December 2016, to send Kesha on a semiannual basis statements for royalties
payable under the contract; and (ii) failing, between the second quarter of 2014 to December
2016, to pay Kesha the royalties she earned under the contract. Kesha provided notice to
Prescription of the failure to pay royalties in 2016 and that breach was never fully cured.
78.
As a direct and proximate result of Prescriptions material breach of the
Prescription Contract, which is continuing as of the date of these Second Amended

Counterclaims, Prescription has deprived Kesha of the benefits of the Prescription Contract.
19

NYSCEF DOC. NO. 629
79.
INDEX NO. 653118/2014

Prescription Contract, Kesha has sustained and is continuing to sustain damages, in an amount to
be determined at trial.
THIRD CAUSE OF ACTION
Breach of Contract (Against KMI)
80.
The KMI Contract is a valid written contract between Kesha and KMI.
81.
The KMI Contract requires KMI to pay royalties owed to Kesha under the
contract.
82.
Kesha has performed and is currently performing under the KMI Contract.
83.
KMI materially breached the contract by failing to fully and accurately account to
and pay Kesha royalties due and owing under the KMI Contract.
84.
As a direct and proximate result of KMIs material breach of the KMI Contract,
which is continuing as of the date of these Second Amended Counterclaims, KMI has deprived
Kesha of the benefits of the KMI Contract.
85.
Prescription Contract, Kesha has sustained and is continuing to sustain damages, in an amount to
FOURTH CAUSE OF ACTION
Declaratory Relief Under CPLR 3001 Terminating the KMI Contract and the
Prescription Contract
(Against KMI and Prescription)
86.
20

NYSCEF DOC. NO. 629
87.
INDEX NO. 653118/2014

Kesha seeks a declaratory judgment that the KMI Contract and the Prescription
Contract are terminated after the release of Keshas third album because it is impracticable or
impossible for Kesha to record without the long-term supervision of the Court or the assistance
of Sony, whose contract with Dr. Luke purportedly ends in March 2017. A declaration of
invalidity before the release of Keshas third album is not necessary should the Court continue to
supervise and Sony continue to facilitate the album to completion, promotion, and release.
88.
Due to Dr. Lukes verbal abuse of and physical threats against Kesha, Kesha fears
for her physical safety and psychological wellbeing. As a result, it is impracticable or impossible
for Kesha to perform long-term under the KMI Contract and the Prescription Contract.
Moreover, it is impracticable or impossible for Dr. Luke to exercise good faith in the
performance of the contracts while a highly acrimonious, scorched earth litigation between the
parties proceeds in parallel.
89.
Dr. Lukes verbal abuse of and physical threats against Kesha were not
foreseeable at the time the KMI Contract and the Prescription Contract were executed, and could
not have been guarded against.
90.
In executing the KMI Contract and the Prescription Contract, Kesha could not
have contracted around Dr. Lukes verbal abuse and physical threats.
91.
An actual and justiciable controversy currently exists between Kesha, on the one
hand, and KMI and Prescription, on the other hand, over the impracticability or impossibility of
Keshas long-term performance under the KMI Contract and the Prescription Contract.
21
INDEX NO. 653118/2014

NYSCEF DOC. NO. 629
FIFTH CAUSE OF ACTION

Declaratory Relief Under California Labor Code 2855(a)
(Against KMI and Prescription)
92.

93.
Kesha seeks a declaratory judgment that the KMI Contract and the Prescription
Contract are terminated after the release of Keshas third album because they violate California
Labor Code 2855(a), otherwise known as the Seven Year Rule.
94.
To protect young, newly discovered recording artists from this precise manner of
exploitation in quasi-lifetime un-severable professional relationships, California labor law

requires all music contracts to end within seven years of execution. See Cal. Labor Code
2855(a).
95.
California Labor Code 2855(a) provides that no agreement for personal service
shall be enforced for more than seven years from its commencement date. The KMI Contract
and the Prescription Contract are personal service contracts. The KMI Contract has been
enforced for over eleven years. It was amended on December 1, 2008 and May 18, 2009, but
neither amendment provided Kesha with the ability to consider competitive offers from other
music production companies or gave her the ability to negotiate the value of her services in the
marketplace. The Prescription Contract has been enforced for over eight years.
96.
The Court dismissed certain of Keshas First Amended Counterclaims on the
grounds that Kesha could not avail herself of New York laws that protect against abuses in the
employment context because the alleged events did not occur in the state or city of New
York. To also deny Kesha the protection of California labor lawbecause of choice-of-law
provisions in the KMI and Prescription Contracts designed to rob Kesha of her rights under the
22
INDEX NO. 653118/2014

NYSCEF DOC. NO. 629
California Labor Codewould leave Kesha without labor protections and be fundamentally
unjust. The Court should thus apply basic choice-of-law principles and apply Californias Seven
Year Rule.
97.
Because the KMI Contract and the Prescription Contract contain no termination
dates, Kesha will continue to remain bound to KMI and Prescription until she releases the
required number of albums under each contract. Over the course of Keshas eleven-year
relationship with Dr. Luke, she has released just two albums, Animal and Warrior. Due to the
acrimonious relationship among the parties, it will take many more years to release these
additional albums, if they are released at all.
98.
The State of California has the strongest interest in this dispute. For example:
a) Kesha and Dr. Luke are residents of California;
b) Prescription is a California limited-liability company with its principal place of
business in California;
c) Kesha and Prescription executed the Prescription Contract in California;
d) Kesha wrote and recorded 13 of the 14 songs on Animal in California;
e) Kesha wrote and recorded all 16 songs on Warrior in California;
f) Kesha wrote and recorded all of the songs for her third album in California;
g) All of Keshas creative meetings have been in California at the insistence of Dr.
Luke; and,
h) Dr. Luke exercised complete control over Keshas performance under the KMI
Contract and the Prescription Contract in California, including by: dictating the genre of Keshas
songs; having final say as to lyrics; exercising authority over songwriting credits; denying Kesha
the ability to work with songwriters of her choosing; selecting where Kesha recorded (which was
23

NYSCEF DOC. NO. 629
INDEX NO. 653118/2014

often in his Malibu or Hollywood homes); providing Kesha with a recording studio and
recording equipment; bearing the costs of recording; choosing who could and could not be
present during recording sessions; setting the dates and times of recording sessions; and
controlling the song selection and release process for singles and albums without seeking
Keshas input.
99.
Kesha is an employee under the KMI Contract and the Prescription Contract.
100.
An actual and justiciable controversy currently exists between Kesha, on the one
hand, and KMI and Prescription, on the other hand, over whether the KMI Contract and the
Prescription Contract are unenforceable under California Labor Code 2855(a) after the release
of Keshas third album.
PRAYER FOR RELIEF
WHEREFORE, Kesha requests for judgment against the Counterclaim-Defendants as
follows:
A.
On the First Cause of Action, for damages against Dr. Luke, KMI, and
Prescription in an amount to be determined at trial, and a judgment terminating the KMI Contract
and the Prescription Contract after the release of Keshas third album.
B.
On the Second Cause of Action, for damages against Prescription in an amount to
C.
On the Third Cause of Action, for damages against KMI in an amount to be
determined at trial.
D.
On the Fourth Cause of Action, that this Court determine and declare that Keshas
continued performance under the KMI Contract and the Prescription Contract is impracticable or
impossible due to Dr. Lukes verbal abuse and physical threats. The KMI Contract and the
24
INDEX NO. 653118/2014

NYSCEF DOC. NO. 629
Prescription Contract shall be terminated after the release of Keshas third album.
E.
On the Fifth Cause of Action, that this Court determine and declare that the KMI
Contract and the Prescription Contract are unenforceable under California Labor Code 2855(a),
and the contracts are terminated after the release of Keshas third album.
F.
On all Causes of Action, for Keshas reasonable attorneys fees, interest, costs,
and the expenses of this action.

G.
For all other and further relief that this Court deems just and proper.
DEMAND FOR JURY TRIAL
Kesha hereby requests a jury trial on all issues so triable.
Dated: January 30, 2017

New York, New York
By: /s/
James M. Pearl
James M. Pearl
OMELVENY & MYERS LLP

Daniel M. Petrocelli (admitted pro hac vice)
James M. Pearl (admitted pro hac vice)
Jason Lueddeke (admitted pro hac vice)
Stephen Volpe (admitted pro hac vice)
1999 Avenue of the Stars, 8th Floor
Los Angeles, California 90067
Phone: (310) 553-6700
Leah Godesky
Times Square Tower
7 Times Square
New York, New York 10036
Phone: (212) 326-2000
BONE MCALLESTER NORTON PLLC
J. Alex Little (admitted pro hac vice)
Nashville City Center, Suite 1600
511 Union Street
Nashville, Tennessee 37219
Phone: (615) 238-6301
Attorneys for Kesha Rose Sebert
25

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INDEX NO.

FILED: NEW YORK COUNTY CLERK 01/30/2017 11:20 PM

SUPREME COURT OF THE STATE OF NEW YORK

RECEIVED NYSCEF: 01/30/2017

Index No. 653118/2014

FILED: NEW YORK COUNTY CLERK 01/30/2017 11:20 PM

INDEX NO. 653118/2014

Counterclaim-Plaintiff Kesha Rose Sebert, by and through her undersigned attorneys, as

NATURE OF THE CASE

FILED: NEW YORK COUNTY CLERK 01/30/2017 11:20 PM

INDEX NO. 653118/2014

FILED: NEW YORK COUNTY CLERK 01/30/2017 11:20 PM

INDEX NO. 653118/2014

is a recording artist and songwriter known professionally as Kesha.

Lukasz Gottwald is an individual and a resident of California. He is a music

producer known professionally as Dr. Luke.

KMI is a music production company. KMIs principal place of business is California.

INDEX NO. 653118/2014

FILED: NEW YORK COUNTY CLERK 01/30/2017 11:20 PM

RECEIVED NYSCEF: 01/30/2017

Prescription is a California limited-liability company founded, owned, and

controlled by Dr. Luke. Prescription is a music publishing company. Prescriptions principal

JURISDICTION AND VENUE

FILED: NEW YORK COUNTY CLERK 01/30/2017 11:20 PM

INDEX NO. 653118/2014

as CEO of Kemosabe RecordsKeshas record labelmaintains veto power over every

FILED: NEW YORK COUNTY CLERK 01/30/2017 11:20 PM

INDEX NO. 653118/2014

FILED: NEW YORK COUNTY CLERK 01/30/2017 11:20 PM

INDEX NO. 653118/2014

The contract is a personal service contract.

The contract has no termination date.

The KMI Contract has been in effect for over 11 years.

The Prescription Contract (Music Publishing)

On November 26, 2008, Kesha entered into an exclusive music publishing

contract with Prescription (the Prescription Contract).

Under the Prescription Contract, Prescription secured a 50% interest in all

INDEX NO. 653118/2014

FILED: NEW YORK COUNTY CLERK 01/30/2017 11:20 PM

RECEIVED NYSCEF: 01/30/2017

The contract is a personal service contract.

The contract has no termination date.

By granting Prescription exclusive music publishing rights, Kesha believed that

Prescription until she releases three albums.

The KMI-Kemosabe Records Contract (Recording)

INDEX NO. 653118/2014

FILED: NEW YORK COUNTY CLERK 01/30/2017 11:20 PM

RECEIVED NYSCEF: 01/30/2017

The KMI-Kemosabe Records Contract is a personal service contract.

The KMI-Kemosabe Records Contract has no termination date.

INDEX NO. 653118/2014

FILED: NEW YORK COUNTY CLERK 01/30/2017 11:20 PM

RECEIVED NYSCEF: 01/30/2017

Dr. Luke Verbally Abuses and Physically Threatens Kesha.

Throughout their decade-long contractual relationship, Dr. Luke has verbally

singing ability to ruin her self-worth. For example:

INDEX NO. 653118/2014

FILED: NEW YORK COUNTY CLERK 01/30/2017 11:20 PM

RECEIVED NYSCEF: 01/30/2017

occasions. For example:

FILED: NEW YORK COUNTY CLERK 01/30/2017 11:20 PM

INDEX NO. 653118/2014

happened if she hit three strikes.

FILED: NEW YORK COUNTY CLERK 01/30/2017 11:20 PM