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Music industry welcomes new laws in California restricting the use of lyrics in criminal proceedings

By | Published on Monday 3 October 2022

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The American music industry has welcomed the signing into law on Friday of new rules in California that will restrict the use of lyrics as evidence in criminal cases in the state’s courts. Both the Recording Academy and the Recording Industry Association Of America applauded the development, which will likely empower those campaigning for similar legal reforms elsewhere in the US.

The new laws in California – known as AB 2799 or the Decriminalizing Artistic Expression Act – address concerns that an increasing number of criminal cases in America have used a defendant’s creative output as evidence against them. This tends to disadvantage those who make rap and hip hop, because people are often prone to assume that rap lyrics are more rooted in reality than lyrics written by artists in other genres.

When Californian state senators voted on the new laws in August, RIAA Chief Mitch Glazier wrote to Toni Atkins, the current President Pro Tempore of the Senate, noting that: “Rooted in imagination, creative expression’s greatest capacity is to lift us out of the real world and to present us with the unexpected, the unlikely, and the unthinkable. Hyperbole and fantastical imagery are customary, and often necessary, elements of that creative expression”.

“Bob Marley and Eric Clapton understood this when they sang about shooting the sheriff”, he went on. “Johnny Cash understood it when he claimed to have ‘shot a man in Reno just to watch him die’. The Beatles weren’t ones to truly subscribe to the notion that ‘Happiness Is A Warm Gun’. And no one truly believed that Freddie Mercury ‘just killed a man’ in Queen’s ‘Bohemian Rhapsody’”.

“Yet, when rap and hip hop artists adhere to this time-honoured tradition of make believe”, he continued, “their lyrics are too often – and unfairly – taken literally, stripped of the poetic licence afforded other genres. While such mischaracterisation may be uneventful in everyday music consumption, its application in criminal proceedings can skew the truth and destroy artists’ lives”.

The new laws in California don’t outright stop lyrics and such like from being used as evidence in criminal cases, but they will “require a court, in a criminal proceeding where a party seeks to admit as evidence a form of creative expression, to consider specified factors when balancing the probative value of that evidence against the substantial danger of undue prejudice”.

The Senate voted in favour of the new laws in August and – with the state’s Assembly having already voted through the proposals – the Decriminalizing Artistic Expression Act was just awaiting the signature of California Governor Gavin Newsom.

As he signed the new rules into law on Friday, Newsom stated: “Artists of all kinds should be able to create without the fear of unfair and prejudicial prosecution. California’s culture and entertainment industry set trends around the world and it’s fitting that our state is taking a nation-leading role to protect creative expression and ensure that artists are not criminalised under biased policies”.

In his statement welcoming the legal reforms, Recording Academy CEO Harvey Mason Jr said: “Today we celebrate an important victory for music creators in the state of California. Silencing any genre or form of artistic expression is a violation against all music people. The history that’s been made in California today will help pave the way forward in the fight to protect creative freedom nationwide”.

Meanwhile, Glazier said in a new statement: “We applaud Governor Newsom on this pivotal decision that will allow all creators to express themselves and follow their artistic vision without barriers of prejudice. The RIAA has been a vocal advocate for AB 2799 because all too often rap and hip hop artists have suffered for the same kind of hyperbole and imagery other genres routinely use without consequence. With the signing of the California rap lyrics bill into law, voices that may have been stifled are now fully open to expression”.

Similar legal reforms were approved in the New York Senate earlier this year but didn’t get voted on in the Assembly before the current session of that state’s legislature came to an end. However, those reforms are expected to be re-proposed during the next session. New laws that would achieve something similar on a US-wide basis have also been proposed in Washington, although they seem less likely to go through than state-level reforms.

Although there have been many criminal cases in recent years in which lyrics have been cited as evidence in court, one of the most high profile current cases where prosecutors are relying heavily on the defendants’ creative output is that in Georgia against Young Thug and Gunna.

Obviously the legal reforms in California won’t directly impact on that case, although the two rappers’ lawyers will likely use the wider debate around the problems with lyrics being used as evidence in criminal proceedings as a tactic for challenging the prosecution’s arguments in court.