17 Jan 19
Who still wants to be in business with R. Kelly?
A man whose career once seemed to rise with direct proportion to the volume of rumors about his off-stage sexual escapades is, in the wake of the blockbuster Lifetime series Surviving R. Kelly, quickly becoming a pop culture pariah.
On Wednesday of this week, protesters gathered outside Sony Music’s New York headquarters, where they chanted “RCA, take a stand, we won’t stop ‘til Kelly’s banned!” and delivered a petition with more than 217,000 signatures, imploring the label to drop the R&B star. Last week, a plane commissioned by national women’s organization UltraViolet flew above Sony’s Culver City, Ca., offices, trailing a banner that read “RCA/Sony: Drop Sexual Predator R. Kelly.”
Meanwhile, artists like Lady Gaga have fired up their Notes apps to issue awfully-late-but-okay apologies for their collaborations with the R&B star and express solidarity with the considerable, and growing, number of women who say they were victimized by Kelly.
According to years of credible reporting, Kelly has, for decades, been engaged in the sexual, physical, psychological, and emotional abuse of women and girls as young as 14-years-old. Through those years, his victims have reportedly been silenced by threats, blackmail, payouts, and — the choice legal document of serial sexual abusers the nation over — non-disclosure agreements. A BuzzFeed investigation published last July by Jim DeRogatis, who broke the Kelly story back in 2000 and has been reporting on it ever since, said that Kelly is currently keeping several young women in cult-like conditions against their will at his homes, women whose parents have been trying for years to see or at least contact their daughters, with no end to their torment in sight.
The docuseries reintroduced that harrowing testimony, gave faces and voices to the previously-anonymous or unseen women who say Kelly systematically destroyed their lives, and all but forced the average viewer to reckon with their complicity in Kelly’s fame and success. Within weeks of its premiere, the campaign to #MuteRKelly had grown in volume considerably, making the silence of Kelly’s longtime label all the more apparent — and, to Kelly’s detractors, damning.
RCA, whose parent company is Sony, did send an employee down to pick up that petition in New York. But the label has taken no formal action against Kelly, who has been at RCA for the entirety of his solo career. (Jive Records, to which Kelly was previously signed, merged with RCA in 2007.) His most recent RCA release was a 2016 Christmas album. As for his 18-minute rambling non-confession, “I Admit,” Kelly released it himself on SoundCloud last July.
Is RCA in a real legal bind, unable to dissolve a contract that — technically, legally — Kelly has not breached? Or is that just a convenient cover for a corporation unwilling to lose the back catalog of an artist whose biggest hits, like “I Believe I Can Fly” and “Ignition (Remix)” are still in heavy rotation?
‘The amazing, sacred nature of the contract’
“Is there a criminal indictment against this man? Because until that occurs, RCA has a problem,” said Deborah L. Wagnon, attorney and associate professor specializing in recording industry legal issues in the College of Media and Entertainment at Middle Tennessee State University. RCA is dealing with “a very strong, vocal, relatively mature — to the business — artist, in R. Kelly, with very strong counsel. They, I’m sure, have dug in, and taken a position of, ‘We have a viable recording agreement. We have no morals clause.’”
Current agreements likely have language to allow for a broader range of terminable offenses, given the ease with which a person can wreck a reputation via social media. But Kelly’s contract predates all of that. When Kelly got his start in the music industry back in the 1990s, it would have been “very difficult for any artist counsel to allow any language in that would suggest that, if you misbehave, we can cut you from the roster,” Wagnon said. “That was fought tooth and nail.”
All of this means that, until Kelly commits a crime — and is arrested for said crime, or is on trial, or is in prison — RCA may not have the grounds to terminate his contract.
The relevant question regarding Kelly’s behavior, for RCA, is simply this: Is it damaging his record sales? To break a contract requires “objective data,” Wagnon explained, which translates to something like: “Sales drop exponentially, no one will do business with you. I don’t know that boycotts or protests count” if they don’t actually diminish sales.
“This is about the amazing, sacred nature of the contract. This crazy range of the freedom of parties to agree to something that the courts will uphold, no matter how stupid the terms were, so long as they were legal and the people were of majority age,” Wagnon said. “That is what RCA and all their lawyers are stuck with. No matter how much they want him to go somewhere else, there has to be a basis in fact for them to take action. Because he’s not an ingenue. And he could sue them for breach.”
Sony was in this predicament before, though in reverse, when Kesha tried and failed to extricate herself from a recording contract with Lukasz “Dr. Luke” Gottwald, who the pop singer-songwriter accused of rape and abuse, Gottwald’s Kemosabe Records, and Sony. The judge ruled against Kesha over and over again, saying, “My instinct is to do the commercially reasonable thing” and uphold the existing contract.
“It is the inverse. Kesha just wanted out, and Sony was pushing her to deliver,” said Wagnon. In Kelly’s case, “He doesn’t want to go anywhere, [and] as long as he delivers in strict accordance with the agreement, they’re hard-pressed to get rid of him, unless he has violated some provision in the agreement.”
“RCA is not judge and jury,” Wagnon said. “They are party to a contract.”
Keeping Kelly on hold
Kelly’s camp claims he has been in the studio recording new music; he has two albums left on his contract. Sources familiar with Kelly’s contract and relationship with RCA told TMZ that the label has basically put Kelly on ice: “The label will not produce any of the singer’s new music, it will not put money behind any of his projects, and it will not release any additional music until the criminal investigations in Georgia and other fallout resolve one way or the other.” Criminal investigations into Kelly are underway in Atlanta and Chicago.
So while protesters are demanding RCA sever ties with Kelly immediately, “immediately” is not necessarily the savviest move for the label. What’s the rush? It’s not like they have to release any of his music.
“Nobody could compel them to put a record out if they didn’t want to,” said Laurie Soriano, a music attorney in Los Angeles.
“All recording agreements, even for superstar types, are going to be the same on this front: They’re basically set up in a one-sided way, where the record label gets to decide how long the term is,” Soriano said. And even if they picked up the options, “there are still mechanisms in the agreement, as every agreement has, about what happens if the label decides not to put the record out.”
Kelly could be standing outside RCA with a boombox over his head, playing the music he says comprises his next two albums. But “this concept of, ‘I made the record, I sent it to them, they have the digital files of all the masters,’ that is not delivery with a capital D,” Wagnon said. “Delivery has to be communicated as accepted by the label.” Which means another delaying mechanism available to RCA is to simply reject whatever Kelly sends their way by saying, “We’re not happy with it. Our approval of your record is pending. We’ve seen it, we’ve heard it, but we have not made our decision with whether it is commercially satisfactory — therefore, delivery has not occurred.”
“Buying time is to the label’s advantage,” said Wagnon.
‘Who wants to pay massive dollars to someone they might have issues with already?’
But let’s imagine a scenario in which RCA decides that they just can’t stomach keeping Kelly on the roster anymore. It is worth noting that RCA only recently announced a new deal with Chris Brown, who pled guilty to a 2009 assault of his then-girlfriend, Rihanna, and whose name has made headlines for his multitude of arrests, alleged violent misconduct in the years since. So it does not appear that this is the particular hill upon which RCA would choose to die.
Nevertheless, to continue this thought experiment, RCA has the option of simply settling it out with Kelly — just paying him to go away. The idea does have its appeal, but for Wagnon, it raises a question, “Who wants to pay massive dollars to someone they might have issues with already?”
And even if RCA kills this contract before Kelly can release new music, what do they do about the old music?
“They could decide to pull his back catalog,” said Soriano. “Or they could sever all ties for the future, but leave the status quo with regard to his back catalog” — an option that might appease the #MuteRKelly camp but keep those “Ignition (Remix)” royalties rolling in.
“His masters, no one wants because he’s a pariah,” said Wagnon. “But you can always re-record that master recording if you [own] the underlying composition, and there’s serious dollars in that market. We don’t know all of the assets that RCA is looking at. Particularly if it was Jive, because they were pretty good at owning compositions and master recordings.”
RCA’s radio silence
As it seems that the savviest strategy for RCA is the one they’re currently deploying — keeping Kelly on ice, waiting for the justice system to do its thing — why not address the public outrage with some kind of statement? Even something relatively benign to the effect of, “We are aware of the concerns regarding this artist. We take allegations of sexual violence very seriously. We also believe in due process. We have no further comment at this time.” Surely the company has a PR team at work crafting something very similar, no? Because if not, it took approximately eight seconds to write that. RCA can just have it!
“If they make a statement that has assumptions in it about behavior, that could be very problematic,” said Catherine Moore, adjunct professor of music technology at the University of Toronto. “Unless and until they have legal support for that statement, then a company would be very reluctant to make a statement.”
Considering the gravity of the allegations against Kelly, how long his abuse has allegedly been going on — and the fact that it is still reportedly ongoing — one would think this is an urgent matter. But for RCA, Moore said, “The time to make an announcement would be when they could announce, ‘We have made this business decision about R. Kelly,’ and say what that decision is.”
Though to all the world, it appears like RCA is doing nothing. “I’m sure they’re more busy than we could imagine trying to figure this out,” Moore said. “But they’re not doing it in public.”