On Thursday, New York's appellate court affirmed Dr. Luke's summary judgment advantages including the determination that he wasn't a public figure.
That such a famous individual like Dr. Luke doesn't qualify as a public figure became concerning tor the Reporters Committee for Freedom of the Press along with news organizations like The Daily Beast, Dow Jones, New York Public Radio, and others filing an amicus brief in Kesha's favor. That's because public figures need to show actual malice to prevail while a private figure only need to show the speaker's negligence. (The libel standards in New York have recently shifted, but more on that in a moment.)
Why isn't Dr. Luke a public figure even if he is acknowledged to be an "acclaimed and influential" figure in the entertainment industry? According to three of the five judges on this appellate panel, it's because he hasn't injected himself into a public debate about the controversy that is the subject of his lawsuit.
According to the ruling, "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, 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," continues the decision.
In a dissent, Justice Saliann Scarpulla takes issue with this formulation and points out that Dr. Luke has spent time as an American Idol judge, given many interviews in his career, and has 200,000 followers on Twitter.
"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," writes Scarpulla. "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."
"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,'" continues Scarpulla. "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."
The majority side and minority side disagree on how to read past cases, especially those involving plaintiffs who don't seek publicity for their controversies.
"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," opines Scarpulla in a sharp dissent.
Elsewhere, the appeals court upholds some of the other conclusions of the trial judge including how a text message that Katy Perry was also raped was defamatory per se; the triable issue existing as to whether Kesha is shielded by litigation privilege; how Kesha can be held liable for any defamatory statements made by her lawyer and her press agent; and so forth.
Here's the full ruling.
The decision's impact may be somewhat blunted by New York's recent passage of an anti-SLAPP law that makes even private figures show a speaker's actual malice (knowledge of falsity or reckless disregard of truth) on issues of public concern.
Already, in advance of a trial softly scheduled for this autumn, Kesha's attorneys are looking to leverage the standards of the new law and have it applied retroactively. The trial judge has yet to rule there.
This story was originally published by The Hollywood Reporter.