Gottwald v. Sebert

• Decision Date: 22 April 2021
• Docket Number: 12716-12716A,Index No. 653118/14,Case No. 2020-01908, 2020-01910
• Citation: 148 N.Y.S.3d 37,193 A.D.3d 573
• Parties: Lukasz GOTTWALD professionally known as Dr. Luke et al., Plaintiffs–Respondents, v. Kesha Rose SEBERT professionally known as Kesha, Defendant–Appellant, Pebe Sebert et al., Defendants. Kesha Rose Sebert professionally known as Kesha, Counterclaim–Plaintiff–Appellant, v. Lukasz Gottwald professionally known as Dr. Luke, et al., Counterclaim-Defendants–Respondents. Samuel D. Isaly, Amicus Curiae. The Reporters Committee for Freedom of the Press and 16 Media Organizations, Buzzfeed, the Daily Beast Co. LLC, Daily News, LP, Dow Jones & Co., Inc., the E.W. Scripps Co., Gannett Co., Inc., New York Public Radio, Newsday LLC, the Media Institute, MPA-the Association of Magazine Media, National Press Photographers Association, the News Leaders Association, Radio Television Digital News Association, Society of Environmental Journalists, Society of Professional Journalists and Tully Center for Free Speech, Amici Curiae.
• Court: New York Supreme Court — Appellate Division

193 A.D.3d 573

148 N.Y.S.3d 37

Lukasz GOTTWALD professionally known as Dr. Luke et al., Plaintiffs–Respondents,

v.Kesha Rose SEBERT professionally known as Kesha, Defendant–Appellant,Pebe Sebert et al., Defendants.

Kesha Rose Sebert professionally known as Kesha, Counterclaim–Plaintiff–Appellant,

v.Lukasz Gottwald professionally known as Dr. Luke, et al., Counterclaim-Defendants–Respondents.

Samuel D. Isaly, Amicus Curiae.

The Reporters Committee for Freedom of the Press and 16 Media Organizations, Buzzfeed, the Daily Beast Co. LLC, Daily News, LP, Dow Jones & Co., Inc., the E.W. Scripps Co., Gannett Co., Inc., New York Public Radio, Newsday LLC, the Media Institute, MPA-the Association of Magazine Media, National Press Photographers Association, the News Leaders Association, Radio Television Digital News Association, Society of Environmental Journalists, Society of Professional Journalists and Tully Center for Free Speech, Amici Curiae.

12716-12716A

Index No. 653118/14

Case No. 2020-01908, 2020-01910

Supreme Court, Appellate Division, First Department, New York.

ENTERED April 22, 2021

O'Melveny & Myers LLP, New York, (Anton Metlitsky, Leah Godesky, Yaira Dubin and Daniel M. Petrocelli and James M. Pearl of the bar of the State of California, admitted pro hac vice, of counsel), for appellant.

Mitchell Silberberg & Knupp LLP, New York (Jeffrey M. Movit and Christine Lepera and David A. Steinberg of the bar of the State of California, admitted pro hac vice, of counsel), for respondents.

Carter Ledyard & Milburn LLP, New York (Alan S. Lewis and John J. Walsh of counsel), for Samuel D. Isaly, amicus curiae.

Holwell Shuster & Goldberg LLP, New York (Eileen Monaghan DeLucia, Brian T. Goldman and Prishika Raj and Eugene Volokh of the bar of the State of California, admitted pro hac vice of counsel), for The Reporters Committee for Freedom of the Press and 16 Media Organizations, amici curiae.

Acosta, P.J., Oing, Kennedy, Scarpulla, Mendez, JJ.

Orders, Supreme Court, New York County (Jennifer G. Schecter, J.), entered February 6, 2020, which, to the extent appealed from, upon plaintiffs’ and defendant Kesha Rose Sebert's (Kesha) motions for partial summary judgment, determined, in connection with the defamation claims, that plaintiff Gottwald is not a general or limited public figure and that plaintiffs need not prove by clear and convincing evidence actual malice or "gross irresponsibility" on Kesha's part, that Kesha's lawyer and press agent acted as her agents for the purposes of this action, that none of the alleged defamatory statements constitutes hyperbole or nonactionable opinion, and that Kesha's text message to Lady Gaga was defamatory per se, and, upon a search of the record, dismissed Kesha's breach-of-contract affirmative defense based on the implied covenant of good faith and fair dealing, affirmed, without costs.

The third amended complaint alleges that in 2005, plaintiff Gottwald, an established music producer at the time -known for his music, business acumen and the artists he represents- expressed interest in working with Kesha who was then unknown. Kesha agreed to work with Gottwald, and in September 2005, she entered into an exclusive recording agreement with Gottwald's music production company KMI. The KMI agreement obligated Kesha to provide exclusive recording services to KMI, that could be extended by KMI through the release of her sixth album and gave Gottwald the right to produce and receive royalties on at least six songs per album.

The complaint further alleges that shortly after entering into the KMI agreement, Kesha was frustrated that her recording career was not progressing quickly. In late 2005 she retained representatives who, in order to pressure plaintiffs to release her from the KMI agreement, "threatened" to make public a false story that in October 2005, after attending a party together where Kesha had too much to drink, Gottwald had drugged her, took her back to his hotel room and sexually abused her. Gottwald would not accede to the demands or compromise his contractual rights. Subsequently, Kesha and KMI executed multiple amendments to the KMI agreement. In November 2008 Kesha entered into a separate agreement with Prescription, agreeing to be bound by an agreement KMI entered into in 2009 with the RCA/JIVE record label to release and promote her recordings.¹ Plaintiffs produced and promoted Kesha's very successful 2010 debut and follow-up albums, which featured songwriting and production contributions from Gottwald.

The complaint alleges that in a 2010 action brought by Kesha's former managers against her and Gottwald, Kesha and her mother Pebe Sebert testified at their depositions that, contrary to their earlier accusations about Gottwald in 2005, he had never drugged Kesha, never made any sexual advances towards her and never had a sexual relationship with her.

The complaint alleges that in 2012 and 2013 Kesha and her agents (Pebe, 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. She stopped delivering sound recordings to Gottwald and refused to allow him to produce her work. Pebe and the rest of 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.²

After completion of discovery and filing of a note of issue, plaintiffs’ moved for partial summary judgment arguing that: (1) Kesha's text to Lady Gaga was defamation per se, (2) the statements made by Pebe, Geragos, Meiselas, Sunshine Sachs and Eisele were made in their capacity as Kesha's agents, and (3) Kesha's affirmative defenses to the defamation claims fail as a matter of law. Kesha opposed plaintiffs’ motion and moved for partial summary judgment arguing that: (1) Gottwald is a public figure and can only recover for defamation if the statements asserting that he drugged, raped and sexually assaulted her were made with actual malice, (2) 27 of the statements were made either during settlement discussions as pertinent to good-faith anticipated litigation (by Kesha in litigation filings, or by her or her attorneys to contextualize litigation developments), (3) 18 of the statements constituted protected opinion or hyperbole that cannot be actionable, and (4) Gottwald breached the KMI agreement's implied covenant of good faith and fair dealing.

Supreme Court granted, in part, Gottwald's motion for partial summary judgment and denied Kesha's motion for partial summary judgment. On this record, we now affirm.

The record demonstrates that, while 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 ( Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 2997, 41 L.Ed.2d 789 [1974] ).

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’ " ( Waldbaum v. Fairchild Publs, Inc., 627 F.2d 1287,1292 [D.C. Cir. 1980], cert denied 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 [1980], quoting Gertz at 345, 94 S.Ct. 2997 ).

"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" ( Gertz at 352, 94 S.Ct. 2997 ). 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 ( Krauss v. Globe Intl., Inc., 251 A.D.2d 191, 674 N.Y.S.2d 662 [1st Dept. 1998] ). Although he is an acclaimed music producer and well known in the entertainment industry, he is not a household name.³ His success in a high-profile career, without more, does not warrant a finding that he is a general-purpose public figure (see Waldbaum at 1299 ).

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...