One Sheet to Rap Sheet: Evaluating Proposed Federal Rule for Using Lyrics & Creative Writing to Prove Crimes

James P. Flynn, Managing Director of the Firm and Member in the Litigation and Employment, Labor & Workforce Management practices, in the firm’s Newark office, authored an article in ILN IP Insider, titled “One Sheet to Rap Sheet: Evaluating Proposed Federal Rule for Using Lyrics & Creative Writing to Prove Crimes.”

Following is an excerpt:

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.