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RIAA boss sets out support for restricting use of lyrics in criminal cases in California

By | Published on Friday 19 August 2022


The boss of the Recording Industry Association Of America has formally written to law-makers in California explaining the importance of proposals that will restrict the use of lyrics and other creative expression as evidence in criminal trials.

Those proposals in California – known as AB 2799 – mirror proposals made elsewhere in the US to deal with 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. Even, though, of course, rappers like any music-makers usually present a partly or entirely fictionalised world in their lyrics.

Ahead of a reading of those proposals in the Californian Senate yesterday, RIAA chief Mitch Glazer wrote to Toni Atkins, the current President Pro Tempore of said Senate, pointing out that “hyperbole and fantastical imagery” are commonplace in lyrics, but that that fact isn’t always acknowledged depending on genre.

His letter stated: “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”.

“AB 2799 seeks to address this issue and we respectfully request your support”, he then noted.

Those proposed new rules wouldn’t outright stop lyrics and such like being used as evidence in criminal cases, but – the formal explanation of AB 2799 explains – they would “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”.

In particular, when it comes to assessing whether a defendant’s creative expression really proves anything of relevance or importance in relation to a specific case – which is to say, it has ‘probative value’ – the court would have to assume “that the probative value of the creative expression for its literal truth is minimal unless that expression meets specified conditions”.

The proposals before the Californian legislature are similar to those considered by law-makers in New York State earlier this year, and those proposed on a US-wide level in Washington by Hank Johnson and Jamaal Bowman last month.

In New York, the proposed restrictions on using lyrics in criminal cases were passed by the state’s Senate in May, but didn’t get debated in the state’s Assembly before the most recent session of the New York legislature adjourned at the start of last month.

However, in California, where the current legislature session runs until the end of the month, the new rules could go into force. Both Senate and Assembly have now passed the proposals, although the latter still needs to approve the former’s amendments.