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June 06, 2024 Feature

The Rap-to-Prison Pipeline and the Erasure of Black Rappers

Dominique Fontenette Davillier

I. Introduction

“The role of the artist is to make the revolution irresistible” is a quotation by Toni Bambara. However, advocating for any type of revolution can be dangerous. So, who protects the artist and their art? Essentially, that is the role of the lawyer to protect the artist and their art, as well as to actively listen to their needs and advocate zealously for their best interests to help them mitigate risks. This holds especially true in the music industry, particularly for lawyers representing artists in the rap genre.

The music lawyer must be well-versed in all areas of the industry to sufficiently represent the talent. A significant aspect of the industry that rap artists are forced to deal with are the implicit biases surrounding Black men in American society. These biases are often used to criminalize the lives of rap artists.

Within the past year, there have been extensive conversations about using rap lyrics in criminal trials following the very high-profile arrests of Young Thug and Gunna. This issue has been continuously framed as a criminal justice issue. However, implicit biases impact daily music consumption (i) through the way rappers are treated in society and (ii) through the way their art is interpreted by listeners, both in and outside the courtroom. Such bias has a significant negative impact on artists and can stifle and silence Black voices and art.

Lawyers should be on the front lines protecting the rights of artists. That includes working to correct the injustice and unfair discrimination against rap artists. With the increase in digital technology and the way it is altering the music business, it is more important than ever to fully discuss the threat to Black artistry. Part I of this paper addresses the financial value of rap and the proposed legislation for limiting the use of rap lyrics in criminal trials. Part II highlights the deficiencies in the proposed legislation. Lastly, Part III proposes legislative and alternative solutions to address implicit bias against rap to afford Black artists greater protection in their artistic expression.

II. The Current Discussion of Rap on Trial

A. Rap’s Transition to a Multi-Billion-Dollar Industry

Rap has evolved since its inception in the Bronx in the 1970s and today, hip-hop and rap are multi-billion-dollar industries that influences nearly all aspects of culture- from fashion to fast food to even social media captions. As of 2016, the hip-hop industry was valued at $15.7 billion, with a projected growth rate of $4.08 billion a year. In 2018, it was estimated that hip-hop accounted for approximately thirty-one percent (31%) of the music market. Based on these numbers, in 2022, the hip-hop industry should be valued at around $40.18 billion. However, rap has not achieved commercial success overnight.

The transition of rap from an underground street movement to the corporate boardroom was accomplished through strategic business decisions by record label executives around the globe. Today, rap continues to be produced on smaller labels and then marketed and distributed by major labels. This strategic business decision is based on the commonly held notion that senior music executives associate rap music with the street. To facilitate the growth of rap, labels utilize street marketing tactics, such as monitoring and data gathering, to determine what will be marketable. Thus, the financially viable image of the modern-day rap artist is created based on what will achieve the most commercial success in popular “street” culture. This image typically tends to be centered around drugs, sex, and violence- further enhancing the already negative stereotypes surrounding Black men in American society.

B. The Use of Rap Lyrics in Criminal Trials and Proposed Legislation

A significant impact of the enhancement of the negative stereotypes surrounding Black men is the use of rap lyrics in criminal trials as purported evidence of proof of criminal conduct. This has been a discussion in the legal community for many years, and numerous legal scholars have offered several proposed solutions. In an effort to address such evidentiary issues, there has been a push to pass legislation to limit the use of rap lyrics as evidence. California became the first state to sign legislation into law in October 2022, New York passed their law in the state Senate, and, at the federal level, the Restoring Artistic Protection Act of 2022 (the “RAP Act”) is also pending in Congress.

While the pending federal legislation might initially appear like a great thing, after reading the wording of the statute it is clear that the RAP Act has several flaws. A significant flaw is that it has four exceptions. Specifically, Section (b)(1)(A) allows lyrics to still be submitted as evidence if the government can show that the defendant intended a literal meaning rather than a figurative one. Regardless of the “clear and convincing evidence” requirement, it is incredibly difficult to attach an objective metric to subjective art. This exception fails to account for the implicit biases society has about Black men and rap that influence how the lyrics are interpreted. It does not consider the presumption that artists tell stories, even when they draw inspiration from reality. In light of this, legislation in general is not the only solution to these issues; it is merely one component of a solution and will not resolve the root of the issue Black rappers face: implicit biases in American society.

III. What the Legislation Fails to Consider

The RAP Act addresses the issue within the courtroom by amending the Federal Rules of Evidence. However, this issue does not start in the courtroom. The implicit biases that are ingrained in American society is a systemic issue that can be traced back to slavery. At every level within the system there are unique ways these implicit biases negatively impact the Black artist. In order to actually address this issue, solutions need to be implemented throughout the entire system. Other areas of significant concern are law enforcement regulation, diversity in the music industry, and implicit bias in talent representation. Each of these will require different solutions in order to create a more equitable industry for Black artists.

A. Increased Digital Surveillance of Black Rappers

Artists often have very little control over their image within the music industry. Corporate boardrooms are constantly pressuring artists to portray very specific roles centered on negative stereotypes, which portray Black men as violent and aggressive. In the current market, music streaming platforms such as Spotify, which has about 422 million users, allow these images to be shared worldwide and make them widely accessible. While this accessibility helps advance an artist’s career, it also provides law enforcement with abundant materials they can utilize as digital surveillance. With the increase in technology, law enforcement now spends about the same amount of time scouring social networks and watching rap videos as they do patrolling the streets. This poses a significant threat to increasing the rap-to-prison pipeline and the erasure of Black men in rap.

Law enforcement officials are not trained to understand the nuances of rap music and thus often misinterpret the lyrics as depictions of real-life events instead of viewing them as art. A clear example of this is the indictment of members of Young Stoner Life Records in Atlanta, specifically Gunna. Gunna was charged with conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act. The indictment uses Gunna’s appearances and lyrics on songs “Fox 5”, “Take it to Trial” and “Ski” as evidence of “an overt act in furtherance of the conspiracy.” The indictment uses these lyrics and appearances as evidence of Gunna’s involvement in “participation in criminal street gang activity,” but the government lacked any other substantive evidence of such conspiracy. This is a dangerous practice where both law enforcement and prosecutors who are not trained to differentiate between art and real-life depictions will likely argue that a literal meaning is intended from these lyrics. If successfully argued in court, the lyrics would still be admissible under the current proposed RAP Act.

In addition to this concern, the opposition of rap by law enforcement can also prevent artists from performing at booked shows. Law enforcement has routinely boycotted performances by rappers such as N.W.A. and even Beyoncé. These protests still exist today, with New York drill rappers being prevented from performing at Rolling Loud in New York in September 2022. However, police protests do not stop with booked performances by the artists. Even DJs can get fined for just playing the music. These tactics are used by law enforcement to intimidate Black artists that they deem to be a threat to public safety. In light of these issues, there is an obvious concern for the silencing of Black voices through the censorship of their art.

B. Emerging Technology and the Lack of Diversity in Music

In addition to increasing accessibility to law enforcement, the evolving technology in music is also altering the traditional music business. The introduction of AI rappers like FN Meka poses a significant threat of further erasing Black men from rap. If a virtual character can create rap with the same image and sound as Black men and not face the same consequences, it further reveals that the use of rap in criminal proceedings has little to do with the content of the lyrics. While FN Meka sparked an important conversation within the music industry, the fact that this occurred at all represents a lack of understanding by music executives, attributable in part to the lack of diversity in executive positions within the music industry.

Conversations must be had on the front end of these types of decisions. It should not take public outcry for music executives to realize this behavior is inappropriate. The music lawyer plays a unique role on the front end of an artist’s career decisions and typically has a more developed relationship with the artist. This allows them to understand the concerns and needs of their clients a lot better. However, implicit bias held by the client’s own lawyers can certainly impact the way the lawyer advises him. The music lawyer should be focused on educating themselves on implicit bias, racial inequity in the industry, and how their clients will be negatively impacted by changing technology. Without a commitment to learn and understand the significance of these issues, the lawyer cannot fully understand the risk the client faces and will be unable to best advocate for the client’s needs.

C. Implicit Bias in Talent Representation

The impact of implicit bias has been studied for decades. These preconceived judgments easily go undetected, while weaving into conversations and affecting interactions with others. According to studies, most Americans implicitly associate Black people with negative attitudes and stereotypes, such as being aggressive, violent, and lazy. Rap music can further enhance stereotypes of “the dangerous Black male” as research has shown that after listening to rap music listeners evaluate a Black person’s behavior as more aggressive and less intelligent. While the effect of implicit bias on juries in criminal proceedings has been extensively studied, implicit biases also contribute to the criminalization of rap and inevitably impedes talent representation.

Although not overt, implicit bias manifests in tangible forms of discrimination that have real-life consequences, especially in the legal field. At the intersection of art and the law, it is imperative that music lawyers understand how their own biases can impact their decision-making when representing clients that create rap music. A lack of cultural understanding can undermine the attorney-client relationship and, in turn, undermine the fair administration of justice. Therefore, to properly defend the artist and their music, the lawyer must fundamentally understand the significance of rap within Black culture and how it functions to depict the shared experiences of many Black Americans. Music lawyers should also be well educated on the stereotypes and biases surrounding the topics discussed in rap, which dangerously leads those outside the Black community to mistakenly believe rap lyrics are true without asking any further questions.

IV. Proposed Industry Changes

A. Increased Awareness to Marketing and Contract Drafting for the Black Artist

Music lawyers should be able to clearly and concisely explain all the risks associated with a music career. For Black men pursuing rap, this includes the risk of increased bias and surveillance by law enforcement and the subsequent impact getting in trouble with the law will have on an artist’s endorsement deals and other sources of income. These risks need to be considered in decisions about artist development and marketing campaigns for music videos and album releases. Issues facing Black artists should also be considered when the lawyer is negotiating and drafting contracts on behalf of their clients. Specifically, attention should be paid to the so-called “morals clauses” to ensure that they are drafted as narrowly as possible to address these concerns to protect the client. The ideal morals clause will protect the artist’s existing endorsement deals from being rescinded except in the case of a felony conviction. The lawyer should be a valuable asset that helps the artist navigate the complexities of maintaining their music industry image within a society that is already ingrained with implicit biases about Black men. Properly preparing and advising the rap artist in consideration of this unfortunate reality will not only benefit the artist’s current career, but also will help them achieve and maintain long-term success.

B. Increased Diversity in Executive Positions in Music

To increase fairness and equity in the industry, there needs to be broader perspectives in the boardroom. A study conducted by USC Annenberg in June 2021 reported that across 119 companies, there were 17.7 White male executives to every 1 Black female executive at the Vice President level. As a whole, the percentage of Black artists far surpasses that of Black executives at labels.

Increased diversity in these spaces benefits the company’s culture as well as the industry’s. Diverse backgrounds provide a diversity of thought, which allows issues to be quickly spotted before they become a problem. Company environments should also encourage contrasting viewpoints because open and honest conversations, even about these sensitive topics, can lead to better business decisions overall. There should be a focus on creating a company culture that embraces diversity in thought and not just diversity in personnel. Companies in the music industry should hire more women and underrepresented candidates for executive positions and also amplify their voices so their unique lived experiences can help shift the industry culture from within.

C. Implicit Bias Training for Music Lawyers and Executives

In addition to increasing diversity in music, there should also be more conversations between lawyers and their clients about the issues implicit biases present to the client’s career. Studies have shown that having conversations can bring implicit biases to the forefront and start the process of correcting the issue. However, these conversations are not going to be enough. Everyone that is part of the music industry should undergo mandatory implicit bias training to spread awareness while learning how to correct these destructive thoughts. A successful implicit bias training program will go beyond just raising awareness and will provide people with concrete tools for changing their behavior. Some techniques that can be utilized are calling out stereotypical views and gathering more individualized information about people, exposing people to different thought processes either through conversations or educational tactics, and increasing one’s interactions with different kinds of people. Overall, successful implicit bias training should teach people how to implement action into their daily interactions to help mitigate the impact of implicit bias.

D. Guidelines and Training for Law Enforcement Surveillance

To address the concerns about the abuse of technology, law enforcement should also undergo mandatory training programs to learn about the nuances of rap lyrics. Since a layperson is not likely to have a deeper understanding of rap lyrics, these programs should be taught by rap lyric experts such as Erik Nielson, who has served as an expert and consultant for using rap lyrics as criminal evidence for years.

However, history has shown that training in law enforcement will most likely not be enough, so there should also be legislation passed that addresses these specific concerns. A threshold similar to the one implemented in the RAP Act should be applied to law enforcement as well. It should focus on only allowing law enforcement to use evidence when they have established a nexus between the lyrics and a committed criminal act. This would help prevent the abuse of rap lyrics from being used in indictments. The threshold needs to be higher before law enforcement can avidly track Black artists solely based on rap lyrics they have posted online.

In addition, law enforcement should have to demonstrate probable cause to cancel artists’ shows and not just the fear of suspected violence. There should be more of a connection between an artist and some other basis to show that there is a credible threat to safety. These same concerns could arguably be alleviated through heightened security checkpoints at concert venues. It is imperative that this is regulated to ensure that performances by Black artists are not filtered or halted with little to no evidence by law enforcement to substantiate their positions. Combining these three strategies will likely help decrease the amount of implicit bias in this area of the criminal justice system.

V. Conclusion

While these proposed systemic changes will not likely completely eradicate implicit bias in the music industry, they are necessary because at the very least, they will begin the essential conversations that need to take place pertaining to why society understands that life and art are not inextricably intertwined in almost all other art forms. However, an exception is applied to Black rappers and their art. It is vital that the effort is made to address these implicit biases to ensure that we, as music lawyers, are not contributing to the rap-to-prison pipeline and the erasure of Black rappers. Further, as music lawyers, it is our duty to fight for the equal protection of all artists, regardless of how much revenue they generate. So, when music executives state that they support legislation allowing all artists to express themselves freely without fear of criminal consequences, that includes all rappers and not just those who make millions of dollars for the recording industry.

To best advocate for our clients, music lawyers must all do our part in changing this aspect of the industry and society, even if it requires uncomfortable conversations. We must all make an effort to increase diversity in the music industry which will, in turn, increase awareness of these issues. Ultimately, this will help humanize the artists and help us all understand where reality stops and art begins. While none of us can do anything to change the past, we all can make a difference in creating a better future. As Martin Luther King Jr. said: “a riot is the language of the unheard,” and rap is the soundtrack. Protect Black art.

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    Dominique Fontenette Davillier

    Entertainment and Sports Lawyer

    Dominique Davillier graduated in May 2024 from the University of Miami School of Law with her JD and LLM in Entertainment and Sports Law. Her work has been focused on diversity, equity, and inclusion in the entertainment and sports industries. She has spent four semesters interning at the Women’s National Basketball Players Association. After graduation she plans to practice in Los Angeles and New York.