A Message To Lady Gaga
The New York Appellate Division for the First Judicial Department has sustained the viability of a defamation claim brought by a prominent music producer (“Dr. Luke”) against a former client
Kesha’s statements that Gottwald drugged her, that he raped her, and that he abused her do not constitute hyperbole or nonactionable opinions (see Thomas H. v Paul B., 18 NY3d 580, 585-586 [2012]). The determination whether a statement is opinion or objective fact is a question of law (Mann v Abel, 10 NY3d 271, 276 [2008], cert denied 555 US 1170 [2009]). An opinion cannot be proven false and therefore does not give rise to liability for defamation purposes (Thomas H. at 585-586). Kesha’s statements assert that Gottwald drugged and raped her. These statements are not opinion or hyperbole because they can be found to be factual as a matter of law. They are not exaggerations, assert a literal event that is alleged to have occurred, are not protected opinion or hyperbole and can be actionable for defamation.
Kesha’s text message to Lady Gaga, that Gottwald had raped another singer, was defamatory per se
There is a dissent in part
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 (see generally Daniel Goldreyer, Ltd., 259 AD2d at 353). 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 (see generally James, 40 NY2d at 421-422). 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 (Winklevoss, 170 AD3d at 619; see also Maule v NYM Corp., 54 NY2d 880, 883 [1981] [“plaintiff not only welcomed but actively sought publicity for his views and professional writing and by his own purposeful activities thrust himself into the public eye”]; Park v Capital Cities Communications, Inc., 181 AD2d 192, 197 [4th Dept 1992], appeal dismissed 80 NY2d 1022 [1992], lv dismissed in part, denied in part 81 NY2d 879 [1993] [plaintiff “was not involuntarily thrust into an unwanted limelight, but rather, invited favorable publicity for his practice”]).
Because Dr. Luke is, at a minimum, a limited purpose public figure, Dr. Luke was “required to show by clear and convincing evidence that defendant[] published the statements at issue with actual malice”
(Mike Frisch)