In a list of Music Industry Terms Every Artist Should Know, “One Sheet” is defined 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 term “rap sheet,” which means “a police arrest record especially for an individual,” is not in that glossary.  But, as we will discuss in this post, those sheets are not as disparate as one may think, since criminal prosecutors have with increasing frequency relied on rap lyrics and other creative writing to prove criminal cases—and defense counsel and others are trying to fight against such use in the name protecting creative freedoms and artistic liberties.  As we have here frequently discussed the nature of the creative process and what makes an artist an artist, it makes some sense to go beyond the portrait of an artist as a young coder to, for example, the portrait of an artist as Young Thug, who (as Jeffrey Lamar Williams) is himself now emersed in a lengthy criminal trial in which the court allowed the prosecution to use his lyrics as evidence that he committed or conspired to commit violent crimes.

In some sense, these issues are not new. We have previously explored here intellectual property law in criminal matters, for instance.   Likewise, the New York Times wrote ten years ago about dozens of prosecutions  “in which rap lyrics have played prominent roles,” either because “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, around the same time in 2014, the New Jersey Supreme Court decided State v. Skinner, where it reversed a conviction based in part on the admission of the defendant’s rap lyrics, noting:

In this case, defendant’s graphically violent rap lyrics could be fairly viewed as demonstrative of a propensity toward committing, or at the very least glorifying, violence and death. That prejudicial effect overwhelms any probative value that these lyrics may have. In fact, we detect little to no probative value to the lyrics whatsoever. The difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views. One would not presume that Bob Marley, who wrote the well-known song “I Shot the Sheriff,” actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story “The Tell-Tale Heart,” simply because of their respective artistic endeavors on those subjects. Defendant’s lyrics should receive no different treatment. In sum, we reject the proposition that probative evidence about a charged offense can be found in an individual’s artistic endeavors absent a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced.

The New Yorker wrote about this issue five years ago. Outside of the world of rap, other creative writers have over the years had their works cited against them as evidence of a crime, from Blake Liebel who was convicted of murder that tracked somewhat the crime described in his graphic novel Syndrome, to Krystian Bala, author of Amok, who authorities convicted of murder and torture like what he had described his book, to the serial arsonist and killer John Leonard Orr, whose novel Points Of Origin became evidence in at least one of his trials.  In People v. Novak, the author of a fictional incest story had that work placed in evidence against him on molestation charges brought in Michigan. And, as far back as 2001, the defendant’s (non-rap) song lyrics were used in State v. Kosovich to achieve a murder conviction.

In fact, the notion of such proofs has even made its way into popular culture. For instance, in an episode (season 13, episode 17) called Genius of Law and Order, defendant Clay Warner is an author charged with murder, in part because of the similarity of the stabbing to what he described in his novel.  Perhaps more to the point, 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 another fan site recaps.  On the flip side, Sharon Stone’s character in Basic Instinct claims that the similarity between her book and the crime being investigated presented 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 could argue such evidence both ways, and can do so in fiction.

Though not new, this question is a recurring one. As recently as March 2024, the Supreme Court of Iowa upheld the conviction of a defendant based in part on admission of a rap song voiceover with a recorded song in the background.  A lower appellate court had held the admission of such evidence improper and prejudicial, noting that “we will not imbue meaning to Canady’s rapping along to a popular diss track that includes several names, including one that sounds like the name of a decedent. Common sense tells us that people often sing and rap along to songs without those songs being autobiographical. Cf. State v. Leslie, No. 12-1335, 2014 WL 70259, at *6 (Iowa Ct. App. Jan. 9, 2014) (finding the presentation of a rap video would have been unduly prejudicial where ‘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 are awaiting a decision 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 blog is usually more about intellectual property rather than admissibility of evidence in criminal cases or about the politics of prosecutorial strategy/discretion or artistic cultural suppression.  And we will turn shortly to the nature of the creativity at stake, just as we have in discussing AI and other areas where the nature of the creative contribution in many ways determines how (and to what extent) it is afforded protectability. But first, we will note that rap seems to have the particular attention of prosecutors, as noted in several places including at least three law review articles, which can be seen here, here, and here, the last of these relating to UK rather than US cases.  [In fact, there is even a law review piece comparing the US/UK experience]. We will also note that some states, like California, have attempted to address these questions of admissibility and bias through legislation such as the Decriminalizing Artistic Expression Act, which allows for admission of such lyrics after judicial review where directly relevant, not unduly prejudicial, and unlikely to interject racial bias into the proceedings. 

In fact, the House Judiciary Committee is considering 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 intellectual property subjects so often the focus of this blog. Though it is proposed as Rule 416 of the Federal Rules of Evidence to be applicable in federal criminal and civil cases, its application would depend on the nuanced application of intellectual property concepts concerning “creative or artistic expression,” see proposed Rule 416(a) and (e), defining what is “original,” see proposed Rule 416(b)(1)(A), and what is “derivative,” see proposed Rule 416(b)(1)(B), and determining whether 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 artistic and intellectual property perspective, concepts not so easily reduced to binary decision-making.

First, let us look at the concept of “creative or artistic expressions.” The proposed rule would define such expressions as 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” may suggest the presence or possibility of fiction, nothing in that proposed definition precludes autobiographical and factual content, even if one uses creativity and imagination in coming up with the words and images through which to depict those facts. That is, in large measure, the whole point of Sidonie Smith and Julie Watson’s recently published Reading Autobiography Now: An Updated Guide for Interpreting Life Narratives (2024), where it is noted that:

When life narrators write to chronicle an event, explore a certain time period, or to enshrine a community, they are making history in a sense. But they are also performing several rhetorical acts: justifying their own perceptions, upholding their reputations, disputing the accounts of others, settling scores, conveying cultural information, and inventing desirable futures, among others. The complexity of autobiographical texts requires reading practices that engage the narrative tropes, sociocultural contexts, rhetorical aims, and narrative shifts within the historical or chronological trajectory of the text. 

Since something can be expressly autobiographical, accurate, confessional, and creatively and imaginatively expressed all at the same time, the evidentiary value of such expressions will continue to be appraised, as prosecutors seek to use rap “to show evidence of confession, knowledge, motive, or intent,” and “[o]ccassionly, the lyrics themselves are the crime,” in the form of alleged threats or intimidation.  But, as discussed further below, even the assertedly autobiographical may not be fully or unquestionably factual.

Second, defining what is “original” and what is “derivative” has taken great amounts of time and attention in this blog, and more generally in the US courts, including the Supreme Court. For instance, we have discussed here and repeatedly the ways in which more recent works can have great levels of creativity and originality while (or without) being derivative in the copyright sense, or at least while being transformative in the copyright sense.  Having evidentiary admissibility in a criminal matter balance on the somewhat abstract questions of what is “original” seems like a challenging predicament for prosecutors and criminal defense counsel not schooled in such IP analysis. For instance, Andy Warhol Foundation Visual Arts v. Goldsmith, 143 S.Ct. 1258, 1283-84 (2023), noted both that determining whether a work is sufficiently original 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” cannot legally “determine the purpose of the use.”  Just these sorts of holdings in the intellectual property context have already led me to have noted elsewhere the difficulty courts have in either relying 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 at the center of the admissibility test.  Further, where a later artist intends a new work as an homage or pastiche to earlier artists or works, the question of originality is not at all clear, as I have discussed before. In fact, as Nicholas Booth has noted, these problems are compounded in music because “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 other words, it can be, and in some sense always is, both derivative and original. [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 certainly complicates the tests provided in the proposed rule, and a court’s resort to intellectual property cases dealing with such concepts may, unfortunately, cloud (rather than clarify) the analysis.

Similarly, the proposed rule has slightly different tests for assessing original and derivative statements.  As to the former, it asks whether “defendant intended a literal meaning, rather than figurative or fictional meaning” and, as to the latter, whether “the defendant intended to adopt the literal meaning of the expression as the defendant’s own thought or statement.” In rap, dependent as it is on sampling and other forms of repetition and echoing that have evolved in light of sampling challenges, the original/derivative distinction is not always clear, as even the most original compositions still must conform to the genre’s lyric formulas. Further, in the derivative context, asking whether one intended to adopt “the literal meaning” of another’s statement assumes that there is a singular literal meaning assigned to the earlier work separable from associated fictional or figurative meanings. That is not a good 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,” according to Lucy Litt (at 136). Further, rappers are not necessarily conveying personal knowledge, but rather are perpetuating shared and accumulated cultural experience:

Indeed, rap artists have been likened to griots, West African oral historians, who serve as ‘the keepers and purveyors of knowledge’ by spreading stories of culture and tradition through poetry and spoken word.

[Araibi, “Every Rhyme I Write”: Rap Music As Evidence In Criminal Trials, 62 Ariz. Law Review 805, 813 (2020)]

Rappers created from what they saw and understood, and that is not the same as saying that they themselves did all such things, even if, for creative reasons and emotional impact, they deployed “first-person street reporting” in telling their artistic truths. Id. at 814. This emerges sometimes from lyrics alone, and other times especially from the merging of the lyrics with video, as seen in Nas’ One Mic where the lyrics that seemed first-person were combined with a recreation of 1976 Soweto (where Nas appears as an adult though Nas would only have been three years old at the time) in a manner that “gives voice to the voiceless,” of which Nas has never been one.

Third, determining whether the creator of an “original” work “intended to adopt a literal rather than figurative or fictional meaning” is perhaps the most challenging of all. That very question assumes that works of creative expression have singular intent or meaning. Yes, Moby Dick is a story about a whale and whale hunting, and in the unabridged version the level of excruciating factual detail about the whale hunting process can have a numbing effect.  But it is also a work that imbues figurative import to such factual details and settings, and it mispresents the text and the author’s intention to say that it only has one (factual) or the other (figurative) meaning:

Moby Dick is a long book about, ostensibly, the search for a single whale by a single ship in the vast oceans of the world. However, it is more than that: it is the story about humanity and its search for meaning in a world which, by the 19^th century, was becoming smaller, and more mechanized, and more disconnected from the world which had given birth not only to humanity, but Western civilization.

[Stell, We Are Ahab–Both Hunter and Hunted. A Book Review of Moby Dick(2018)]

Though one can perhaps discount the relevance of that observation of dual meaning because Melville is writing fiction, the same is true of The Autobiography of Malcolm X, where those like Judith Misrahi Barak have noted (at 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 noted 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 reviews of Nas’ One Mic, where one critic noted the shifting perspective within the song 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 becomes even more pronounced when the video is understood as part of the presenting perspective and artistic intent.   Thus, as noted above, the proposed rule’s test becomes complicated when literal meaning and first-person experience are only one of several (perhaps partial) meanings attendant to what is, on the surface at least, intended to be both autobiographical and more generally applicable.

Where one cannot even reduce the expressly autobiographical to facticity, it is hard to see how a court can apply a test requiring it to construe rap music lyrics under almost any circumstances as straightforward intentional statements of simple fact. “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) because it depends on “[h]yperbole, bravado, and extreme language.” (Litt at 136)  This all makes evidentiary reliance on such lyrics problematic. Those problems arise precisely because reliance on what an author intended as to meaning has never been a standard that has worked in the intellectual property law context.

To that same point, the rap subgenre of drill music depends on an “explicit, confrontational style of lyricism and association with crime in Chicago,” but, as has been noted (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 suggests that to the extent discernable from the work itself, a figurative or fictional meaning is often intended, even if rappers “often stay in character when their ‘performance’ or recording session ends,” as Litt notes at 135 (comparing rappers to professional wrestlers). 

Rap artists themselves have even acknowledged this fiction in their lyrics, such as when Dead Prez rapped in a song 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 end, as Professor Erik Neilson noted on The PBS Newshour (at 6:19):

[voice over:] Rappers are creating characters, not writing diaries

[Neilson:] That is the most important distinction that seems to get missed. There is an author and a narrator. We seem to be able to grasp that concept with every other art form that uses the first-person narrative, but [with] rappers, who go the extra mile to signal that they are inventing a narrator with the use of a stage name, we still revert back to this idea that they’re the same; we conflate the two.

In a similar vein, another commentator noted rap is a world that blends fact and fiction, leaving it in many ways unreliable as courtroom evidence:

It is true that these artists used their experiences to “keep it real,” but the Gangster Rapper—the persona that drew the ire of a nation—was less a portrait of any real person and more a product of artistic hyperbole. It is a professional identity that artists continue to adopt today. Therein lies the first persistent myth about rap: the assumption that the events detailed in the music are wholly factual.

When Ice-T released his single “6 ‘N the Mornin,” he woke the music world up to gangster rap. The song told the story of a man from Los Angeles who narrowly escapes a police raid, beats up a woman, starts pimping, gets arrested with an Uzi and a hand grenade, stabs another inmate in the eye, and eventually serves seven years in prison. Regardless of what one thinks about the art, the song was only semiautobiographical. Ice-T later called his music “faction”—a blend between fact and fiction. The pure truth of the story was less important than the gravity of it. The shocking lyrics and perceived authenticity of it all brought attention to the harsh realities of people living in “the hood.”

***

The fact that rap music, unlike a diary, is an art form that is influenced by innumerable things makes it particularly difficult to identify the cutoff between reality and hyperbole. Likewise, the extent to which artists adopt the gangster rapper persona and the fact that the themes common to rap music—drugs, gangs, and violence—line up with criminal statutes further 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 in which this well-intentioned proposed rule of evidence makes its application in real cases difficult.

Beyond the intellectual property connotations of its terms being ones that are still being defined through the evolution of case law, the proposed rule would actually introduce new considerations to evidentiary weighing. The rule is triggered off an intent inquiry that would be unique under the Federal Rules of Evidence.  Though those rules use the word “intend” or “intent” 19 times, only in Rule 801(a) is the statement maker’s intent a trigger for admissibility:

(a) STATEMENT. ‘‘Statement’’ means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

[Federal Rules Of Evidence, December 1, 2023, at 17]

and that trigger relates to “nonverbal conduct.” Even in Rule 801(a), the rule only asks if the nonverbal conduct was intended to have communicative force, and does not probe as a matter of admissibility what the intended communication was.  That is left for the fact finder. In the proposed Rule 416, however, the court must determine whether the statement maker intended any original statement to be literal or figurative, and if an adopted statement whether “the defendant intended to adopt the literal meaning of the expression as the defendant’s own thought or statement.”  That is simply not an inquiry like one made at the admissibility stage under any other rule of evidence. [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 does not say expressly that “figurative” statements are automatically precluded, though that would be the implication. This too suggests that the proposed rule still needs work, or at least thought, before it can be adopted or used. 

In the end, rap lyrics’ multi-level meanings make them difficult to use as evidence. As one critic noted in 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 includes rap artists.