In an inventory of Music Industry Terms Every Artist Should Know, “One Sheet” is outlined as a “single-page document that highlights an artist’s new music and summarizes their bio, stats, and achievements. It’s given to media, promoters, or anyone else who can further the artist’s career in some way — for example, by hiring them for a gig, interviewing them, or playing their music.” The time period “rap sheet,” which suggests “a police arrest record especially for an individual,” is just not in that glossary. But, as we are going to focus on on this put up, these sheets will not be as disparate as one might imagine, since prison prosecutors have with rising frequency relied on rap lyrics and different artistic writing to show prison circumstances—and protection counsel and others try to struggle in opposition to such use within the title defending artistic freedoms and inventive liberties. As we now have right here incessantly mentioned the character of the artistic course of and what makes an artist an artist, it makes some sense to transcend the portrait of an artist as a young coder to, for instance, the portrait of an artist as Young Thug, who (as Jeffrey Lamar Williams) is himself now emersed in a prolonged prison trial by which the court allowed the prosecution to use his lyrics as proof that he dedicated or conspired to commit violent crimes.
In some sense, these points will not be new. We have beforehand explored here mental property legislation in prison issues, for example. Likewise, the New York Times wrote ten years in the past about dozens of prosecutions “in which rap lyrics have played prominent roles,” both as a result of “police say the lyrics represent confessions,” or “the lyrics are used to paint an unsavory picture of a defendant to help establish motive and intent,” or “increasingly, the act of writing the lyrics themselves is being prosecuted — not because they are viewed as corroborating an incident, but because prosecutors contend that the words themselves amount to a criminal threat.” Indeed, across the similar time in 2014, the New Jersey Supreme Court determined State v. Skinner, the place it reversed a conviction primarily based partly on the admission of the defendant’s rap lyrics, noting:
In this case, defendant’s graphically violent rap lyrics might be pretty considered as demonstrative of a propensity towards committing, or on the very least glorifying, violence and dying. That prejudicial impact overwhelms any probative worth that these lyrics might have. In reality, we detect little to no probative worth to the lyrics in any way. The problem in figuring out probative worth in fictional or different types of inventive self-expressive endeavors is that one can not presume that, just because an creator has chosen to write down about sure matters, she or he has acted in accordance with these views. One wouldn’t presume that Bob Marley, who wrote the well-known music “I Shot the Sheriff,” truly shot a sheriff, or that Edgar Allan Poe buried a person beneath his floorboards, as depicted in his quick story “The Tell-Tale Heart,” merely due to their respective inventive endeavors on these topics. Defendant’s lyrics ought to obtain no totally different therapy. In sum, we reject the proposition that probative proof a couple of charged offense might be present in a person’s inventive endeavors absent a powerful nexus between particular particulars of the inventive composition and the circumstances of the offense for which the proof is being adduced.
The New Yorker wrote about this problem 5 years in the past. Outside of the world of rap, different artistic writers have over time had their works cited in opposition to them as proof of a criminal offense, from Blake Liebel who was convicted of homicide that tracked considerably the crime described in his graphic novel Syndrome, to Krystian Bala, creator of Amok, who authorities convicted of homicide and torture like what he had described his e book, to the serial arsonist and killer John Leonard Orr, whose novel Points Of Origin grew to become proof in no less than one in all his trials. In People v. Novak, the creator of a fictional incest story had that work positioned in proof in opposition to him on molestation fees introduced in Michigan. And, way back to 2001, the defendant’s (non-rap) music lyrics have been utilized in State v. Kosovich to realize a homicide conviction.
In reality, the notion of such proofs has even made its approach into in style tradition. For occasion, in an episode (season 13, episode 17) referred to as Genius of Law and Order, defendant Clay Warner is an creator charged with homicide, partly due to the similarity of the stabbing to what he described in his novel. Perhaps extra to the purpose, in January 2005, in season 15, episode 13 (called Ain’t No Love), “Detectives Fontana and Green move to the beat of hip-hop when a legendary rapper is shot to death and evidence points to the victim’s young protege (as Shawn, Sean Nelson) who was known to be cutting his own music on bootlegged street CD’s, and more clues can be found in one song’s lyrics that describe a similar killing,” as one series’ guide notes, or that “Fontana and Green believe that the truth behind a rap legend’s murder may be found in some rap lyrics,” as one other fan website recaps. On the flip aspect, Sharon Stone’s character in Basic Instinct claims that the similarity between her e book and the crime being investigated introduced an alibi, noting that “I’d have to be pretty stupid to write a book about a killing and then kill somebody the way I described it in my book. I’d be announcing myself as the killer. I’m not stupid.” So clearly one might argue such proof each methods, and might accomplish that in fiction.
Though not new, this query is a recurring one. As just lately as March 2024, the Supreme Court of Iowa upheld the conviction of a defendant primarily based partly on admission of a rap music voiceover with a recorded music within the background. A lower appellate court had held the admission of such proof improper and prejudicial, noting that “we won’t imbue that means to Canady’s rapping alongside to a well-liked diss monitor that features a number of names, together with one which sounds just like the title of a decedent. Common sense tells us that folks usually sing and rap alongside to songs with out these songs being autobiographical. Cf. State v. Leslie, No. 12-1335, 2014 WL 70259, at *6 (Iowa Ct. App. Jan. 9, 2014) (discovering the presentation of a rap video would have been unduly prejudicial the place ‘there [was] certainly no evidence that everything [the decedent] mentioned in the rap videos reflected his personal life).” Likewise, in 2023, both the New Jersey State Bar Foundation and the American Bar Association published pieces on the use of rap lyrics as evidence in court, with each calling for the admission of such evidence to be “severely curtailed,” and others have gone even further that by calling for a total ban on the evidentiary use of such lyrics, while law enforcement personnel in Nevada were claiming the songs could amount to confessions. As commentators noted in April 2024, a study has shown that in the United States “almost 700 cases since the late 1980s where rap lyrics have been used as evidence, usually against criminal defendants,” has occurred for 240 defendants in the UK (an added reference since this is an ILN piece), and these same trends are the subject of a recent documentary film and are being tracked in a case compendium. Just last month a federal court made submission of lyrics before they are recorded or performed a condition of a rapper’s parole, and we’re awaiting a choice on a rap lyrics case from the Supreme Judicial Court of Massachusetts in Commonwealth v. Carlos Colina, SJC-13260, a case argued in April 2024.
This weblog is often extra about mental property slightly than admissibility of proof in prison circumstances or in regards to the politics of prosecutorial strategy/discretion or artistic cultural suppression. And we are going to flip shortly to the character of the creativity at stake, simply as we now have in discussing AI and different areas the place the character of the artistic contribution in some ways determines how (and to what extent) it’s afforded protectability. But first, we are going to be aware that rap appears to have the actual consideration of prosecutors, as famous in a number of locations together with no less than three legislation evaluate articles, which might be seen right here, right here, and right here, the final of those regarding UK slightly than US circumstances. [In fact, there is even a law review piece comparing the US/UK experience]. We will even be aware that some states, like California, have tried to deal with these questions of admissibility and bias by means of laws such because the Decriminalizing Artistic Expression Act, which permits for admission of such lyrics after judicial evaluate the place instantly related, not unduly prejudicial, and unlikely to interject racial bias into the proceedings.
In reality, the House Judiciary Committee is contemplating a federal version of that act, and it has drawn great attention and interest. Examining that proposed federal act is how we return to the mental property topics so usually the main target of this weblog. Though it’s proposed as Rule 416 of the Federal Rules of Evidence to be relevant in federal prison and civil circumstances, its utility would depend upon the nuanced utility of mental property ideas regarding “creative or artistic expression,” see proposed Rule 416(a) and (e), defining what’s “original,” see proposed Rule 416(b)(1)(A), and what’s “derivative,” see proposed Rule 416(b)(1)(B), and figuring out whether or not the creator of an “original” work “intended to adopt a literal rather than figurative or fictional meaning.” See proposed Rule 416(b)(1)(A). These are, from an inventive and mental property perspective, ideas not so simply lowered to binary decision-making.
First, allow us to have a look at the idea of “creative or artistic expressions.” The proposed rule would outline such expressions because the “application of creativity or imagination in the production or arrangement of forms, sounds, words, movements or symbols, including music, dance, performance art, visual art, poetry, literature, film, and other such objects or media.” Proposed Rule 416(e). While “imagination” might counsel the presence or chance of fiction, nothing in that proposed definition precludes autobiographical and factual content material, even when one makes use of creativity and creativeness in developing with the phrases and pictures by means of which to depict these info. That is, in giant measure, the entire level of Sidonie Smith and Julie Watson’s just lately revealed Reading Autobiography Now: An Updated Guide for Interpreting Life Narratives (2024), the place it’s famous that:
When life narrators write to chronicle an occasion, discover a sure time interval, or to enshrine a group, they’re making historical past in a way. But they’re additionally performing a number of rhetorical acts: justifying their very own perceptions, upholding their reputations, disputing the accounts of others, settling scores, conveying cultural info, and inventing fascinating futures, amongst others. The complexity of autobiographical texts requires studying practices that have interaction the narrative tropes, sociocultural contexts, rhetorical goals, and narrative shifts throughout the historic or chronological trajectory of the textual content.
Since one thing might be expressly autobiographical, correct, confessional, and creatively and imaginatively expressed all on the similar time, the evidentiary worth of such expressions will proceed to be appraised, as prosecutors search to make use of rap “to show evidence of confession, knowledge, motive, or intent,” and “[o]ccassionly, the lyrics themselves are the crime,” within the type of alleged threats or intimidation. But, as mentioned additional beneath, even the assertedly autobiographical will not be absolutely or unquestionably factual.
Second, defining what’s “original” and what’s “derivative” has taken nice quantities of time and a spotlight on this weblog, and extra usually within the US courts, together with the Supreme Court. For occasion, we now have mentioned here and repeatedly the methods by which newer works can have nice ranges of creativity and originality whereas (or with out) being by-product within the copyright sense, or no less than whereas being transformative within the copyright sense. Having evidentiary admissibility in a prison matter steadiness on the considerably summary questions of what’s “original” looks as if a difficult predicament for prosecutors and prison protection counsel not schooled in such IP evaluation. For occasion, Andy Warhol Foundation Visual Arts v. Goldsmith, 143 S.Ct. 1258, 1283-84 (2023), famous each that figuring out whether or not a piece is sufficiently authentic to be deemed a separate copyrightable work “cannot turn merely on the stated or perceived intent of the artist,” and that the “subjective intent of the user” can not legally “determine the purpose of the use.” Just these types of holdings within the mental property context have already led me to have famous elsewhere the problem courts have in both counting on or ignoring, “the subjective intent of the person creating the derivative work.”
Despite such difficulties, the proposed Rule 416 would place that subjective intent on the middle of the admissibility check. Further, the place a later artist intends a brand new work as an homage or pastiche to earlier artists or works, the query of originality is in no way clear, as I’ve mentioned earlier than. In reality, as Nicholas Booth has famous, these issues are compounded in music as a result of “Music is a strange art space…since it is possible for musical works to borrow from the same musical concepts while retaining their distinct uniqueness.” In different phrases, it may be, and in some sense at all times is, each by-product and authentic. [To further explore these notions, see the excellent and extended discussion in Rap Lyrics as Evidence: What Can Music Theory Tell Us? by Stoia, Adam, and Drakulich (discussing rap lyric formulas and placing them in musical and social context)]. That duality definitely complicates the assessments supplied within the proposed rule, and a court docket’s resort to mental property circumstances coping with such ideas might, sadly, cloud (slightly than make clear) the evaluation.
Similarly, the proposed rule has barely totally different assessments for assessing authentic and by-product statements. As to the previous, it asks whether or not “defendant intended a literal meaning, rather than figurative or fictional meaning” and, as to the latter, whether or not “the defendant intended to adopt the literal meaning of the expression as the defendant’s own thought or statement.” In rap, dependent as it’s on sampling and different types of repetition and echoing which have developed in mild of sampling challenges, the unique/by-product distinction is just not at all times clear, as even probably the most authentic compositions nonetheless should conform to the style’s lyric formulation. Further, within the by-product context, asking whether or not one meant to undertake “the literal meaning” of one other’s assertion assumes that there’s a singular literal that means assigned to the sooner work separable from related fictional or figurative meanings. That is just not an excellent assumption, as rappers “use slang ..and that slang evades precise, static definitions,” making “this complex wordplay …especially ripe for misinterpretation; as an art form that is meant to be heard, not read, those layered meanings can get lost during a literal analysis,” in keeping with Lucy Litt (at 136). Further, rappers will not be essentially conveying private data, however slightly are perpetuating shared and accrued cultural expertise:
Indeed, rap artists have been likened to griots, West African oral historians, who function ‘the keepers and purveyors of knowledge’ by spreading tales of tradition and custom by means of poetry and spoken phrase.
[Araibi, “Every Rhyme I Write”: Rap Music As Evidence In Criminal Trials, 62 Ariz. Law Review 805, 813 (2020)]
Rappers created from what they noticed and understood, and that isn’t the identical as saying that they themselves did all such issues, even when, for artistic causes and emotional influence, they deployed “first-person street reporting” in telling their inventive truths. Id. at 814. This emerges typically from lyrics alone, and different instances particularly from the merging of the lyrics with video, as seen in Nas’ One Mic the place the lyrics that appeared first-person have been mixed with a recreation of 1976 Soweto (the place Nas seems as an grownup although Nas would only have been three years old at the time) in a fashion that “gives voice to the voiceless,” of which Nas has by no means been one.
Third, figuring out whether or not the creator of an “original” work “intended to adopt a literal rather than figurative or fictional meaning” is maybe probably the most difficult of all. That very query assumes that works of artistic expression have singular intent or that means. Yes, Moby Dick is a narrative a couple of whale and whale searching, and in the unabridged version the level of excruciating factual detail about the whale hunting process can have a numbing effect. But it is usually a piece that imbues figurative import to such factual particulars and settings, and it mispresents the textual content and the creator’s intention to say that it solely has one (factual) or the opposite (figurative) that means:
Moby Dick is an extended e book about, ostensibly, the seek for a single whale by a single ship within the huge oceans of the world. However, it’s greater than that: it’s the story about humanity and its seek for that means in a world which, by the 19th century, was turning into smaller, and extra mechanized, and extra disconnected from the world which had given beginning not solely to humanity, however Western civilization.
[Stell, We Are Ahab–Both Hunter and Hunted. A Book Review of Moby Dick(2018)]
Though one can maybe low cost the relevance of that statement of twin that means as a result of Melville is writing fiction, the identical is true of The Autobiography of Malcolm X, the place these like Judith Misrahi Barak have famous (at web page 41 of Revisiting Slave Narratives II) that this autobiographical work nonetheless has “multiple levels of narrative voices that emerge.” Indeed, in the previously-cited Sidonie Smith and Julie Watson’s work on Reading Autobiography Now: An Updated Guide for Interpreting Life Narratives (2024), they famous that “To reduce autobiographical narration to facticity is to strip it of its rhetorical, literary, ethical, political, and cultural dimensions.” This is borne out in opinions of Nas’ One Mic, the place one critic noted the shifting perspective throughout the music itself depicted “urban claustrophobia distilled and digitized, with Nas’s reportorial eye zooming in on a detail, then pulling back to a panoramic overview.” That shifting turns into much more pronounced when the video is known as a part of the presenting perspective and inventive intent. Thus, as famous above, the proposed rule’s check turns into sophisticated when literal that means and first-person expertise are solely one in all a number of (maybe partial) meanings attendant to what’s, on the floor no less than, meant to be each autobiographical and extra usually relevant.
Where one can not even cut back the expressly autobiographical to facticity, it’s arduous to see how a court docket can apply a check requiring it to construe rap music lyrics below virtually any circumstances as easy intentional statements of straightforward reality. “Rap is an art form that often distorts or exaggerates reality,” as Lucy Litt has noted (at 121), and “is replete with layered meanings and ‘complicates or even rejects literal interpretation,’” (Litt at 136, quoting Henry Louis Gates, Forward to The Anthology of Rap, at xxv) as a result of it relies on “[h]yperbole, bravado, and extreme language.” (Litt at 136) This all makes evidentiary reliance on such lyrics problematic. Those issues come up exactly as a result of reliance on what an creator meant as to that means has by no means been a normal that has labored within the mental property legislation context.
To that very same level, the rap subgenre of drill music relies on an “explicit, confrontational style of lyricism and association with crime in Chicago,” however, as has been famous (by Litt at 133), “drillers have been known to use their explicitly violent lyrics and drill music personas as part of a larger strategy for avoiding physical violence in their daily personal lives” and “’quite a few [young men I met] first began displaying and representing violent criminality on the internet as part of their efforts to reduce their involvement in such behavior in their offline lives. They saw digital production as a means to escape street life.” Again, this means that to the extent discernable from the work itself, a figurative or fictional that means is commonly meant, even when rappers “often stay in character when their ‘performance’ or recording session ends,” as Litt notes at 135 (evaluating rappers to skilled wrestlers).
Rap artists themselves have even acknowledged this fiction of their lyrics, corresponding to when Dead Prez rapped in a music all-encompassingly named Hip Hop that “I’m sick of that fake thug, R&B-rap scenario all day on the radio/Same scenes in the video, monotonous material.” In the tip, as Professor Erik Neilson famous on The PBS Newshour (at 6:19):
[voice over:] Rappers are creating characters, not writing diaries
[Neilson:] That is a very powerful distinction that appears to get missed. There is an creator and a narrator. We appear to have the ability to grasp that idea with each different artwork kind that makes use of the first-person narrative, however [with] rappers, who go the additional mile to sign that they’re inventing a narrator with using a stage title, we nonetheless revert again to this concept that they’re the identical; we conflate the 2.
In an identical vein, one other commentator famous rap is a world that blends reality and fiction, leaving it in some ways unreliable as courtroom proof:
It is true that these artists used their experiences to “keep it real,” however the Gangster Rapper—the persona that drew the ire of a nation—was much less a portrait of any actual individual and extra a product of inventive hyperbole. It is knowledgeable id that artists proceed to undertake at this time. Therein lies the primary persistent fable about rap: the idea that the occasions detailed within the music are wholly factual.
When Ice-T launched his single “6 ‘N the Mornin,” he woke the music world as much as gangster rap. The music informed the story of a person from Los Angeles who narrowly escapes a police raid, beats up a lady, begins pimping, will get arrested with an Uzi and a hand grenade, stabs one other inmate within the eye, and finally serves seven years in jail. Regardless of what one thinks in regards to the artwork, the music was solely semiautobiographical. Ice-T later referred to as his music “faction”—a mix between reality and fiction. The pure fact of the story was much less necessary than the gravity of it. The surprising lyrics and perceived authenticity of all of it introduced consideration to the cruel realities of individuals dwelling in “the hood.”
***
The undeniable fact that rap music, not like a diary, is an artwork kind that is influenced by innumerable issues makes it significantly tough to determine the cutoff between actuality and hyperbole. Likewise, the extent to which artists undertake the gangster rapper persona and the truth that the themes widespread to rap music—medication, gangs, and violence—line up with prison statutes additional complicate the equation.
[Araibi, “Every Rhyme I Write”: Rap Music As Evidence In Criminal Trials, 62 Ariz. Law Review 805, 815, 828 (2020)(emphasis added)]
Ultimately, the setting by which this well-intentioned proposed rule of proof makes its utility in actual circumstances tough.
Beyond the mental property connotations of its phrases being ones which can be nonetheless being outlined by means of the evolution of case legislation, the proposed rule would truly introduce new issues to evidentiary weighing. The rule is triggered off an intent inquiry that will be distinctive below the Federal Rules of Evidence. Though these guidelines use the phrase “intend” or “intent” 19 instances, solely in Rule 801(a) is the assertion maker’s intent a set off for admissibility:
(a) STATEMENT. ‘‘Statement’’ means an individual’s oral assertion, written assertion, or nonverbal conduct, if the individual meant it as an assertion.
[Federal Rules Of Evidence, December 1, 2023, at 17]
and that set off pertains to “nonverbal conduct.” Even in Rule 801(a), the rule solely asks if the nonverbal conduct was meant to have communicative power, and doesn’t probe as a matter of admissibility what the meant communication was. That is left for the very fact finder. In the proposed Rule 416, nevertheless, the court docket should decide whether or not the assertion maker meant any authentic assertion to be literal or figurative, and if an adopted assertion whether or not “the defendant intended to adopt the literal meaning of the expression as the defendant’s own thought or statement.” That is solely not an inquiry like one made on the admissibility stage below some other rule of proof. [Some might claim that Rule 501(a)(1) also requires examination of the statement maker’s intent; I disagree, and I have a truly remarkable proof of this difference, but this parenthetical is too small to contain it, other than through this allusion to Fermet’s Last Theorem]. Moreover, the proposed rule doesn’t say expressly that “figurative” statements are routinely precluded, although that will be the implication. This too means that the proposed rule nonetheless wants work, or no less than thought, earlier than it may be adopted or used.
In the tip, rap lyrics’ multi-level meanings make them tough to make use of as proof. As one critic noted within the aftermath of Warhol, “[t]here is no art school teaching artists to create works for single, defined, hermetically sealed, lawyer-approved uses…Artists make art, not use cases.”
That contains rap artists.