Throughout the controversy, Sony Music Entertainment has declined to comment on the status of its ongoing relationship with Kelly. His last RCA studio release was the original music holiday set 12 Nights of Christmas, which came out in October 2016 and debuted at No. 177 on the Billboard 200. Kelly has talked about a potential sequel to his 33-chapter video opus, 2005’s Trapped in the Closet, but so far, no word on that release or on a new “R&B hip-hop album” Kelly told the Atlanta-Journal Constitution was coming in a December 2016 interview.
Billboard interviewed a number of top entertainment lawyers -- none of whom work directly with Kelly -- and the consensus was that Sony’s path with Kelly is not a clear one and that the company is smart to keep quiet for now.
Unlike executive contracts, artist contracts with labels do not include a morals clause -- or if they do, the bar is very high for dismissing an artist. “Most recording agreements say that the artist has defaulted on his or her obligations under the agreement if they are convicted of a crime, or of a heinous crime, so the noise around R. Kelly wouldn’t be enough to trigger that normal mechanism,” said Laurie Soriano of King, Holmes, Paterno & Soriano. Though allegations of sexual misconduct have dogged Kelly for two decades and he has settled lawsuits, he has never been convicted of a crime: In 2008, he was acquitted of child pornography charges.
“[Sony] is a company that has a contract with this artist, and how the artist behaves is not an issue until if affects its commerce or reputation,” added Ken Abdo, Fox Rothschild. “It appears [the Kelly allegations] are affecting his live performance more than the sale of his recordings.” (#MuteRKelly has also called for Live Nation and Ticketmaster to stop working with Kelly.)
Should Sony, which declined to comment for this article, speak out, it has to proceed with caution or risk legal action. “The law has evolved to protect citizens from public lynchings without due process. In this instance, although the court of public opinion has convicted R. Kelly, our legal system has not,” says James E. McMillan, managing partner of James E. McMillan, P.C. "He hasn’t been convicted of a crime or found civilly liable in any court anywhere. Therefore, anyone caught persecuting him without legal justification could potentially be held liable. These companies are well aware of this. Anyone that is currently in business with R. Kelly is contractually obligated to fulfill their duties and responsibilities to him under their existing agreement or face legal consequences themselves.”
Fulfilling that duty does not necessarily mean releasing new music, it just means honoring the financial terms of the agreement. “Unless [Kelly’s] contract calls for guaranteed release, if [Sony] did not want to release an album, they could just pay the artist out and not release it,” Abdo says.
“Sony doesn’t necessarily need to drop Kelly,” agrees another attorney. “They can decide not to exercise an option or if they’ve exercised that already, they either release the album or say ‘we’ll give you X dollars to split.’” Regardless of how Sony proceeds with any new material, it retains Kelly's catalog.
If Sony parts ways with Kelly, “The label is allowed to publicly explain the reason for a decision to drop an artist or not to put out an artist’s record,” Soriano said, as long as it says nothing false about the artist. “The big issue, though, is that if a label starts sitting in judgment of artists and caving to pressure to drop artists, that can lead to artists and some fans condemning the label. Just to be clear, a label does have the right to drop one artist and not drop others without legal liability. It’s the PR blowback that they would be trying to avoid. So they’re to some extent damned if they do and damned if they don’t.”
Assistance in preparing this story provided by Gail Mitchell