The Volokh Conspiracy
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Dr. Luke Isn't a Public Figure for Purposes of His Libel Lawsuit Against Ke$ha
So the New York intermediate appellate court held yesterday, by a 3-2 vote.
From the majority opinion, signed by Presiding Justice Rolando Acosta and Justices Tanya Kennedy and Manuel Mendez:
The … complaint alleges that in 2005, plaintiff [Lukasz Gottwald, known as Dr. Luke], an established music producer at the time—known for his music, business acumen and the artists he represents—[began to work] with Kesha who was then unknown…. The complaint further alleges that shortly after entering into the … agreement, Kesha was frustrated that her recording career was not progressing quickly…. The complaint alleges that in 2012 and 2013 Kesha and her agents ([her mother Pebe Sebert], nonparties Mark Geragos and Kenneth Meiselas—her then attorneys—and Sunshine Sachs, her newly retained public relations firm) sought to end her agreement with Gottwald so she could derive a larger share of profits from any future records….
[The complaint alleges that] Kesha's agents orchestrated a "press plan," that included a campaign of publishing "false and shocking" accusations against Gottwald in order to pressure him to release Kesha from the agreements and "blacklist" Gottwald from the music industry. The complaint cites several emails and letters published by Pebe and Kesha in 2013 and 2014 referring to Gottwald's abuse, which, plaintiffs allege were knowingly false. It is also alleged that they also forwarded false information to a social media blogger, Michael Eisele (with whom Kesha was in direct communication), who ran a campaign entitled "Free Kesha," to spread false allegations against Gottwald—insinuating he abused Kesha—across social media to garner support.
The complaint further alleges that on February 26, 2016, after this action was commenced, Kesha initiated a text message conversation with the recording artist professionally known as "Lady Gaga" in which Kesha falsely asserted that she had been raped by Gottwald and that another famous female recording artist (which Kesha named) "was raped by the same man." After the text message conversation, Lady Gaga also spread negative messages about Gottwald in the press. {That famous female recording artist testified unequivocally that Gottwald never raped her.}
The key issue on appeal was whether Dr. Luke is a public figure, so that he could "only recover for defamation if the statements asserting that he drugged, raped and sexually assaulted her were made" with knowledge that they were false or likely false. And the lead opinion said that Gottwald was not a public figure:
[W]hile Gottwald is an acclaimed and influential music producer, he does not occupy a position of "such pervasive fame or notoriety that he [has] become[ ] a public figure for all purposes and in all contexts" and that he did not "become[ ] a public figure for a limited range of issues" by "voluntarily inject[ing] himself" into the public debate about sexual assault, or abuse of artists in the entertainment industry.
A person can only be a general-purpose public figure if "he [or she] is a 'celebrity'; his [or her] name a 'household word' whose ideas and actions the public in fact follows with great interest "and 'invite[s] attention and comment.'"
"Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life." Contrary to the dissent, Gottwald's success in the music business is not enough to bring him into the realm of a general-purpose public figure, even if the music he produces is known to the general public or he is associated with famous or household word musicians, especially where he has used his efforts as a producer to obtain publicity not for himself, but for the artists that he represents.
Although he is an acclaimed music producer and well known in the entertainment industry, he is not a household name. {Gottwald was named one of a hundred most creative people in business but was not selected as a judge in American Idol and did not receive a star in Hollywood's walk of fame.} His success in a high-profile career, without more, does not warrant a finding that he is a general-purpose public figure.
A limited-purpose public figure, more commonly, is an individual who has voluntarily injected himself or is drawn into a particular public controversy with a view toward influencing it. "[T]he [individual becomes] a public figure by virtue of his purposeful activity amounting to a thrusting of his personality into the 'vortex' of an important public controversy." The individual must attempt to have, or can be expected to have, a major impact on the resolution of a specific public dispute that has foreseeable and substantial ramifications for persons beyond its immediate participants. Here, contrary to the dissent's view, the specific public dispute as framed by Kesha is sexual assault and the abuse of artists in the entertainment industry….
To be considered a limited purpose public figure Gottwald must have: (1) successfully invited public attention to his views in an effort to influence others prior to the incident in question, (2) voluntarily injected himself into a public controversy related to the subject of the current litigation, (3) assumed a position of prominence in the public controversy, and (4) maintained a regular and continuing access to the media to influence the outcome of the public controversy.
Gottwald cannot be found to be a limited-purpose public figure because he has not done any of these things.
Although Gottwald has sought publicity for his label, his music and his artists—none of which are subject of the defamation here—he never injected himself into the public debate about sexual assault or abuse of artists in the entertainment industry. Gottwald has only spoken out once regarding this litigation, on Twitter in 2016, and has limited his involvement to what was necessary to defend himself.
The dissent argues that "[t]he definition of limited purpose public figure is not so cramped as to only include individuals and entities that purposefully speak about the specific, narrow topic (in this case a protégé's sexual assault) upon which the defamation action is based," but fails to acknowledge that a limited purpose public figure only holds that status with regards to the particular public controversy they thrust themselves into.
Gottwald, a successful music producer, has not attracted media attention for his relationship with his clients or his treatment of artists in the entertainment industry but for his work as a music producer on behalf of, and the fame of, the artists he represents. Unlike the cases cited by the dissent, where the plaintiffs sought publicity regarding the public controversies which were the subject of their litigation (Winklevoss v. Steinberg, 170 AD3d 618, 619 [1st Dept 2019], appeal dismissed 33 NY3d 1043 [2019] [the plaintiffs attracted public attention to themselves as investors in start-ups, voluntarily injected themselves into the world of investing through conferences, interviews and a radio broadcast, and sought to establish their reputation as authorities in the field]; Maule v. NYM Corp., 54 N.Y.2d 880, 883 [1981] [where the plaintiff's books, articles and personal appearances were designed to project his name and personality to establish his reputation as a leading authority on professional football, and actively sought publicity for his views and professional writings, which were the subject of the litigation]; Park v Capital Cities Communications, 181 A.D.2d 192, 197 [4th Dept 1992], appeal dismissed 80 N.Y.2d 1022 [1992], lv dismissed in part, denied in part 81 N.Y.2d 879 [1993] [where Dr. Park stepped outside the private realm of his practice, actively sought publicity regarding his performance of eye surgery by appearing on television shows, found to be a public figure for purposes of the "Park Probe," an expose on unnecessary eye surgery]), Gottwald has not.
Gottwald has appeared in articles in mainstream media for his contributions to pop music, his discovery and development of talent, his rise in the music industry and his talent as both a businessman and music producer. However, he has not injected himself into the debate about sexual assault or abuse of artists in the entertainment industry, which is the subject of the defamation. That fact distinguishes this case from those cited by the dissent.
Justice Saliann Scarpulla, joined by Justice Jeffrey Oing, dissented on this point:
The record here amply demonstrates that Dr. Luke was, at the relevant time, a "public figure" for purposes of reviewing Kesha's allegedly defamatory statements that he sexually assaulted her. Dr. Luke was (and is) a widely acclaimed and influential music producer who actively sought publicity for himself, his label, his music, and the artists that he represents.
Throughout his career, Dr. Luke has promoted and publicized his contributions to the success of the recording artists contractually attached to his label, and, in particular, up and coming female artists. Dr. Luke has co-written and/or co-produced numerous hit songs for various prominent female artists, for which he is also well known.
Dr. Luke has received numerous accolades: he was named one of the top music producers of the 2000's by Billboard; the American Society of Composers, Authors, and Publishers named him Producer of the Year from 2009–2011; he has been nominated for the Grammy award, Producer of the Year; and, in 2010, he was named # 33 in Fast Company's "100 Most Creative People in Business" list. In 2010, Dr. Luke was selected by the Grammy and Recording Academy, and participated in, in a congressional roundtable. In 2013, Dr. Luke was selected to be an American Idol judge, and in 2014, Dr. Luke was selected to receive a star on the Hollywood Walk of Fame.
Moreover, Dr. Luke has actively sought out publicity. He has hired public relations agents, and he has been interviewed, profiled, photographed, and mentioned by numerous periodicals, including the New Yorker, New York Magazine, The Guardian, Rolling Stone, and Billboard. He participated in interviews on prime-time television and on the red carpet at several awards shows. Dr. Luke has also been active on social media. For example, he has more than 200,000 followers on his verified Twitter account, which he uses to talk about his professional and personal life to his followers, including his relationships with the artists whom he represents.
In sum, over many years Dr. Luke has received broad and extensive press coverage as a music producer and, in particular, as a discoverer and developer of female music talent. He has pervasively sought out this publicity. Dr. Luke's protestations that he was not well known at the time of the alleged defamatory statements is thoroughly belied by the record. Under these circumstances, Dr. Luke must prove actual malice in order to prevail on his defamation and defamation-dependent claims.
The majority acknowledges that Dr. Luke is an acclaimed music producer but posits that he is not a general purpose public figure because he is not a "household name." Dr. Luke, however, has achieved a level of fame and notoriety sufficient to be considered a general purpose public figure. He is a household name to those that matter. For this reason, he should be considered a general purpose public figure in connection with analyzing the alleged defamatory statements at issue (see Winklevoss v. Steinberg, 170 AD3d 618, 619 [1st Dept 2019], appeal dismissed, 33 NY3d 1043 [2019] ["The individual plaintiffs are also general purpose public figures, famous by virtue of their participation in the Olympics, their portrayal in [a] film …, and routine coverage in popular media coverage in which they willingly participate"]). The majority's assertion—that Dr. Luke "used his efforts as a producer to obtain publicity not for himself, but for the artists that he represents"—is belied by the record….
Even assuming that Dr. Luke is not a general purpose public figure, at a minimum, Dr. Luke should be treated as a limited purpose public figure in connection with the dynamics of his relationship to the artists with whom he works and upon which he has built his well-known professional reputation. Limited purpose public figures are "those who 'have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.'"
Dr. Luke argues, and the majority accepts, that Dr. Luke is not a limited purpose public figure because he never sought out publicity or spoke publicity about Kesha's allegations of sexual assault or on the issue of sexual assault. That Dr. Luke has not spoken publicly about Kesha's allegations of sexual assault is not surprising, is not relevant, and does not preclude a finding that he is a limited purpose public figure. The definition of limited purpose public figure is not so cramped as to only include individuals and entities that purposefully speak about the specific, narrow topic (in this case a protégé's sexual assault) upon which the defamation claim is based.
The public controversy at issue here is a self-promoting, powerful music industry person's use of his financial leverage over a person whose career he controls to allegedly commit an unpunished sexual assault. Dr. Luke is a limited purpose public figure because he has purposefully and continuously publicized and promoted his business relationships with young, female music artists, like Kesha, to continue to attract publicity for himself and new talent for his label. The allegedly defamatory statements at issue—that Dr. Luke drugged and sexually assaulted Kesha when she was a teenage artist, who was signed to an exclusive contract with his record label—directly relate to Dr. Luke's self-publicized professional and personal relationships with his clients, his integrity in business practices, and in attracting new talent….
Note that, going forward in the case, Dr. Luke's status might be much less important, because a 2020 New York statute now apparently requires a showing of knowing or reckless falsehood in all public concern cases, whether or not the plaintiff is a public figure. Still, the decision will likely be cited as persuasive precedent in other cases outside New York.
My Amicus Brief Clinic students Rachel Levin, Avi Oved, and Aaron Schroeder and I—with the help of our local counsel Eileen Monaghan DeLucia (many thanks to her, and to Scott & Cyan Banister, for their continuing support of the Clinic)—filed an amicus brief in the case on behalf of the Reporters Committee for Freedom of the Press and various media organizations, arguing that Dr. Luke should be treated as a public figure (the position taken by the dissent).
