In 2010, pop musician Kesha began an ultimately failed three-year legal fight with her two producers, Lukasz Gottwald and David Sonenberg, over exclusive rights to her singing services and song catalogue.
“The question that never comes up was, ‘What does she want?’ The court does not care. Her preferences, her desires had no role to play in this argument,” explained Matt Stahl, a Faculty of Information & Media Studies professor.
Norms of labour litigation suggest Kesha can be treated as a legal object, something – not someone – to be fought over like property.
These norms, also applicable in general cases of professional employment, can suppress wages, limit competition and prevent sellers of services from free access to other markets. They limit employee bargaining power by effectively giving employers property rights over their employees.
But these modern laws, as Stahl recently discovered, have more than six centuries of legal history behind them – traceable to 14th-Century Europe and The Great Plague.
Stahl’s research journey began when he stared examining labour laws surrounding Kesha’s case and took him through archives full of court cases related to exploited opera singers, black sharecroppers in the American South and possessive baseball managers.
He recently presented his research in a conference paper, We Are All Kesha: How Women’s Musical Labor Transformed Employment in the 19th Century, and How It Continually Rehearses Employment’s Servility. The paper traces the origins of how labour laws have historically been used to exploit the careers of numerous female musicians, His work helps scholars and students of music better understand the role of law in the music industry.
So far, a “lack of resources, energy or attention towards labour law in music” means most popular-music scholars are unaware of its ongoing importance in shaping the careers of professional musicians.
Kesha’s case is strikingly similar to another case more than 150 years ago.
In 1853, two opera producers, Benjamin Lumley and Frederick Gye, were in court fighting over the exclusive rights to the singing services of Prussian opera singer Johanna Wagner. “The court considered the claims of two opera promoters and did not care in the slightest about Wagner’s preferences,” Stahl said.
The court’s final decision prohibited Wagner from performing for any producer other than her original one, Lumley.
“The 1853 case created the very possibility for two employers to sue each other over another employee without employee’s intentions mattering,” Stahl said.
But the case had a legal precedent.
In the mid-14th Century, the Great Plague wiped away one-third of the working population, including labourers, farmers and servants. As labour became scarce, workers began to boost their prices and landowners would often poach labourers from other landowners by offering workers more money.
Eventually, the ruling classes passed laws that prevented landowners from luring workers away with the promise of better pay. If they failed to comply, landowners could sue each other over the ownership of workers, labourers and servants.
Nobody cared about workers’ opinions.
Four centuries later, in the Lumley case, the 14th-Century precedent would classify Wagner, a professional opera singer, as a servant.
Stahl is certain Wagner’s gender was also pivotal in the outcome of her case.
“Victorian male supremacy considered Wagner, a woman, more like a servant than a formally equal contracting individual and professional,” he said. “When the Lumley court defined Wagner as a servant, they cut the legal ground for equality and subjectivity out from under workers of all kinds.”
He believes this case “is an extraordinarily important moment in Anglo-American social relations.”
Soon after, American courts embraced the Lumley case.
“It was applied first to similar cases of women performers, through the end of the 19th Century, then to former slave sharecroppers, whose employers wanted to lock them in servitude and prevent other owners from poaching them,” Stahl said.
Finally, by the turn of the 20th Century, baseball team owners – rich moguls of a profitable sport – used it to prevent valuable players from being hired away with better offers from other teams. At that point, this norm of employers owning employees’ contracted labour went mainstream.
The Wagner case highlights the special symbolic role musicians have in our culture, he said, and represents an ironic contrast with their legal status.
“We have embraced this idea of musicians as some kind of representative of freedom and self-expression,” Stahl said. “If we see Kesha achieving the goal of singing her own songs in the ways she wants to without being subject to this kind of control, then we may see her experiencing the values our liberal society – relationships of choice, not domination.”