Judicial War on Rap: The Music Genre’s Humble Beginnings to the Courtroom
- Mandi Karpo
- Oct 27
- 5 min read
During the 1960s and early 1970s in the Bronx, New York, hip hop culture was born from the African American, Afro-Caribbean, and Latino inner-city communities as a transformative response to economic hardship and social exclusion.[2] The genre has evolved into today’s Rap music genre and grows considerably in modern-day American culture.[3] As a consequence, American jurisprudence has increasingly used Rap lyricism as evidence in connection with artists alleged civil or criminal offenses.[4]
The First Amendment of the U.S. Constitution guarantees the freedom of speech, religion, the press, assembly, and to petition the government.[5] For creators, the First Amendment serves to legally allow one to express themselves, all of which has come at a price.[6] In today's polarized climate, freedom of speech remains a contested legal and cultural issue.
Many have argued that the legal system has weaponized artists’ lyrics by admitting them at trial and interpreting them literally as evidence of criminal conduct.[7] From the late 1980s to the present, a study has identified more than 700 cases where rap lyrics have been introduced as evidence, usually in criminal cases, a practice that scholars argue disproportionately targets Black artists and distorts the meaning of their creative expression.[8]
The RAP Act
In an attempt to curb the judicial misuse of Rap music, the Restoring Artistic Protection (RAP) Act was introduced in the House of Representatives by Rep. Hank Johnson and Rep. Jamall Bowman on July 27, 2022 to safeguard expressive rights by prohibiting the use of creative works, such as lyrics, as evidence in court unless directly relevant to the issue in dispute.[9] The Act, supported by organizations including the Recording Academy and the Foundation for Individual Rights and Expression (FIRE), seeks to reinforce the constitutional and intellectual property protections that underpin creative freedom.[10] Several states, including California and Louisiana, have enacted similar measures, such as California’s Decriminalizing Artistic Expression Act (AB 2799), which restricts the use of artists’ creative works as criminal evidence.[11] The RAP Act builds upon these efforts at the federal level, signaling a broader legislative recognition that artistic works are forms of protected intellectual property and speech.[12]
Copyright Law Embodied in the Constitution
Congressional power over intellectual property is defined in Article I, Section 8 of the United States Constitution, which gives Congress the power to promote the Progress of Science and useful Art, securing exclusive rights to the respective creator.[13] Clause 8 provides the foundation for copyright protection, covering original works such as literature, music, choreography, and sound recordings.[14] To qualify for copyright protection, a work must possess (1) originality, (2) creativity, and (3) fixed in a tangible medium of expression.[15] In addition, so long as the author records the original work in a tangible form, it is automatically protected under U.S. copyright law.[16] Copyright does not need to be registered with the U.S. Copyright Office, but doing so establishes a formal public record, and if the creator wants, can bring an infringement lawsuit into federal courts.[17] Works created on or after January 1, 1978, have copyright protection for life of the author plus 70 years after the authors death.[18]
By building on these constitutional protections, the RAP Act reflects the same policy rationale as copyright law: promoting artistic creation by protecting artists from punitive or unauthorized use of their work.[19] Traditionally, copyright disputes arise when one party infringes on another’s creative work, but here, the threat comes from the state’s misappropriation of the artist’s own intellectual property as incriminating evidence.[20]
The Limits of Using Creative Works as Evidence
The ongoing YSL prosecution of rapper Young Thug, in which prosecutors sought to admit rap lyrics as evidence of criminal conduct, illustrates the dangers of conflating artistic expression with criminal intent.[21] Defendants have argued that the admission of rap lyrics should be excluded under Rule 403 because the probative value is often minimal while the danger of unfair prejudice is high.[22] The court ultimately allowed the lyrics into evidence, a decision that underscores how creative expression can be misinterpreted when stripped of its artistic context.[23]
Supporters of the RAP Act argue that prosecutors often treat creative storytelling as a literal confession. The inherent and creative nature of songwriting includes the use of innuendos, metaphors, exaggeration, hyperbole, and clever manipulation of language to create a fictitious storyline that prosecutors may misconstrue as a statement of fact.[24] But surely SZA has no intention to actually “Kill Bill,” where she sings about murdering her ex-boyfriend and new girlfriend.[25] In fact, the murders allude to the storyline in Quentin Tarantino's “Kill Bill”.[26] Freddie Mercury does not confess that he “just killed a man, put a gun against his head, pulled the trigger, now he’s dead.”[27]
This goes to show that while the RAP Act, so aptly named, seeks to protect all forms of creative expression under the First Amendment, the burden of proof beyond a reasonable doubt has seemingly shifted to the Rap genre to show that its humble roots do not define the mens rea of all of its artists. [28]
References
[1] Photo by Nick Fewings on Unsplash, https://unsplash.com/photos/a-sign-on-a-table-sLIykj3giso
[2] See History of Rap & Hip-Hop, Timeline of African American Music, Carnegie Hall, https://timeline.carnegiehall.org/genres/rap-hip-hop (last visited Oct. 4, 2025).
[3] See id.
[4] See Sophia Marin Stoute, The Policing of Afro-American Expression: Lyrics as Evidence in Court and the Implications on the First Amendment, Columbia Univ. Black Pre-Law Soc’y (May 8, 2025),
[5] See U.S. Const. amend. I.
[6] See id.
[7] See Sophia Marin Stoute, The Policing of Afro-American Expression: Lyrics as Evidence in Court and the Implications on the First Amendment, Columbia Univ. Black Pre-Law Soc’y (May 8, 2025),
[8] See Erik Nielson, Mapping Rap on Trial, Rap on Trial, https://www.rapontrial.org/ (last visited Oct. 8, 2025).
[9] See Montana Miller, The RAP (Restoring Artistic Protection) Act Has Been Introduced In The House. Here’s What It Means For Artists’ First Amendment Rights, Recording Academy (July 29, 2022) https://www.recordingacademy.com/advocacy/news/rap-act-restoring-artistic-protection-house-of-representatives-what-to-know.
[10] See Claire Hoffman, The Restoring Artistic Protection Act Is Reintroduced in Congress to Protect Creative Expression: Analysis, Recording Academy (Aug. 6, 2025) https://www.recordingacademy.com/advocacy/news/restoring-artistic-protection-act-reintroduced-congress.
[11] See Morgan Enos, California Passes the Decriminalizing Artistic Expression Act: Why It’s a Win for The First Amendment & Creative Expression, Recording Academy (Aug. 26, 2022) https://www.recordingacademy.com/advocacy/news/california-passes-decriminalizing-artistic-expression-act-rap-what-to-know; see also Montana Miller, The Restoring Artistic Protection (RAP) Act Takes Effect in Louisiana, Recording Academy (Aug. 2, 2023) https://www.recordingacademy.com/advocacy/news/restoring-artistic-protection-act-enacted-in-louisiana.
[12] See Hoffman, supra note 10.
[13] See U.S. Const. art. I § 8, cl. 8.
[14] See id.
[15] See University of North Texas, Copyright Law Basics, University Libraries, (last visited Oct. 7, 2025) https://guides.library.unt.edu/SCCopyright/basics#s-lg-box-14997580.
[16] See What is Copyright?, U.S. Copyright Off. (last visited Oct. 7, 2025) https://www.copyright.gov/what-is-copyright/.
[17] See What’s the Difference? Copyright vs Registered Copyright vs Trademark, Destination Legal (last visited Oct. 7, 2025) https://destinationlegal.com/blogs/resources/what-s-the-difference-copyright-vs-registered-copyright-vs-trademark?srsltid=AfmBOopcIv66pqcW5THWr_kYUc2BKAngqrEDa3RgwkFMQPBVRGAxWrGq.
[18] See What is Copyright?, supra note 16; see also 17 U.S.C. § 302(a).
[19] See Hoffman, supra note 10.
[20] See What Musicians Should Know about Copyright, U.S. Copyright Off. (last visited Oct. 7, 2025) https://www.copyright.gov/engage/musicians/.
[21] See Michael Saponara, A Timeline of Young Thug’s YSL RICO Trial, Billboard (Nov. 1, 2024) https://www.billboard.com/lists/young-thug-ysl-rico-trial-timeline/may-9-2022-young-thug-arrested-on-array-of-rico-charges/.
[22] See Kelly McGlynn, Lyrics in Limine: Rap Music and Criminal Prosecutions, Am. Bar Ass’n (Jan. 11, 2023), https://www.americanbar.org/groups/communications_law/publications/communications_lawyer/2023-winter/lyrics-limine-rap-music-and-criminal-prosecutions/.
[23] See Saponara, supra note 21.
[24] See Bridget Lavendar & Matthew Segal, Rap on Trial, State Court Report (April 2, 2024) https://statecourtreport.org/our-work/analysis-opinion/rap-trial.
[25] See SZA, Kill Bill, on SOS (Top Dawg Ent. 2022).
[26] See Lavendar & Segal, supra note 24; see also Kill Bill: Vol. 1 (Miramax 2003).
[27] See Queen, Bohemian Rhapsody, on A Night at the Opera (Hollywood Recs., Inc. 2011).
[28] See Hoffman, supra note 10.
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