Kesha v. Dr. Luke

A decision issued today by the New York Court of Appeals

Plaintiff in this defamation suit, Lukasz Gottwald (“Gottwald”), is a music producer known as “Dr. Luke.” Defendant Kesha Rose Sebert (“Sebert”) is a singer and songwriter known as “Kesha.” Sebert signed a recording contract with one of Gottwald’s companies in 2005 and the arrangement produced several successful albums. However, in 2014, Sebert sought to void her contractual arrangement with Gottwald by filing an action in California, alleging that Gottwald raped her shortly after she signed the original recording deal. In response, Gottwald brought this action in New York alleging that statements made by Sebert and her agents with respect to the alleged sexual assault were defamatory. We hold that Gottwald is a limited public figure who must prove by clear and convincing evidence that Sebert acted with actual malice; that five of the allegedly defamatory statements are privileged as a matter of law while the issue of privilege as to the remaining 20 statements must be resolved by a jury; and that certain provisions of the 2020 amendments to Civil Rights Law §§ 76-a and 70-a apply to this action.

Below

The Appellate Division, in two separate opinions, reversed on the application of the anti-SLAPP statute, holding that the amendments were not retroactive and so did not apply to this litigation, and affirmed Supreme Court’s holding that Gottwald was not a public figure and that issues of fact precluded the grant of summary judgment on certain defamatory statements (203 AD3d 488 [1st Dept 2022]; 193 AD3d 573 [1st Dept 2021]). The respective panels granted Sebert leave to appeal, certifying in each case the question of whether the orders were properly made. We answer each question in the negative.

Limited-purpose public figure

By 2014, when Gottwald initiated this defamation action, he was, by his own account, a celebrity—an acclaimed music producer who had achieved enormous success in a high-profile career. As self-described in the complaint, he “has written the most Number One songs of any songwriter ever” and “was named by Billboard as one of the top ten producers of the decade in 2009.” Gottwald’s engagement with the media was “obviously designed to project his name and personality” before a wide audience to establish his reputation in this field (see Maule, 54 NY2d at 882). He purposefully sought media attention for himself, his businesses, and for the artists he represented, including Sebert, to advance those business interests (see James, 40 NY2d at 423). He had been featured in various publications, as well as on radio and television, highlighting the nature of his relationships with those artists and his development of their talent and careers. Sebert alleged that, shortly after establishing a professional relationship as her producer, Gottwald
sexually assaulted her. Therefore, Gottwald is appropriately considered a limited-purpose public figure, and as a result he must prove that Sebert’s allegedly defamatory statements were made with actual malice.

Justice Rivera dissented

I agree with several of the majority’s conclusions but my analysis differs in certain important respects. First, I agree that respondents must establish malice to succeed on their defamation claims. For all but one claim, this is their statutory burden of proof under New York’s Civil Rights Law—specifically the amended anti-SLAPP law—and, as the majority correctly holds, malice is also the standard applied to all the claims under established principles of defamation law. I also agree that the anti-SLAPP law’s remedies apply to this pending action, but not as temporally limited by the majority. Lastly, I agree the alleged defamatory statements in a previously-filed complaint are privileged, but I cannot agree that there are outstanding factual issues regarding the remaining challenged statements. Based on our precedent and the intended purpose of the privileges asserted, I would hold that the pre-litigation privilege applies to an embargoed draft of the complaint sent to counsel for settlement purposes and to a tabloid the day before filing. Further, the statutory fair report privilege applies to all but two of the allegedly defamatory statements to the media.

(Mike Frisch)