A group of legal experts have filed an ‘amicus brief’ with the court considering Drake’s defamation lawsuit against Universal Music. The musician wants the major label held liable for defamation over its role in releasing and promoting Kendrick Lamar’s diss track ‘Not Like Us’, which includes the lyrical allegation that Drake is a pedophile.
The experts note that, for sometime now, the music community has been busy arguing that rap lyrics should not be treated as statements of fact in the criminal courts. And yet Drake is now pursuing a case in the civil courts based on doing exactly that. Which, the experts argue, sets a dangerous precedent.
Academics Charis Kubrin, Jack Lerner, Adam Dunbar and Kyle Winnen write in their brief to the court that “Drake’s defamation claim rests on the assumption that every word of ‘Not Like Us’ should be taken literally, as a factual representation”. This assumption, they say, is “not just faulty - it is dangerous”.
There has been much criticism in recent years of criminal cases against rappers where prosecutors have used a defendant’s lyrics as evidence against them, honing in on rapped lines that discuss criminal conduct and then presenting them as if they are somehow statements of fact.
Critics highlight how juries are prone to assume rap lyrics are much more rooted in reality when compared to lyrics in other genres, even though there is no reason to make that assumption.
Based on that criticism, the US music industry has campaigned against the use of lyrics as evidence in criminal cases, arguing that doing so infringes on free speech rights, as well as prejudicing creators of certain kinds of music.
That work has resulted in laws being passed in both California and Louisiana that restrict the use of a defendant’s creative output as evidence in court. Similar laws have also been proposed in other states.
The legal experts argue that that basic principle - that rap lyrics should not be assumed to be factual statements - should also be applied in Drake’s defamation lawsuit against Universal.
“As this court considers whether the song lyrics at issue are expressions of opinion or rhetorical hyperbole on the one hand, or assertions of fact on the other”, they write, “we respectfully urge this court to consider rap’s history and artistic conventions - and to recognise that diss track lyrics are far from factual representations”.
The academics then provide the court with a brief history of rap battles and diss tracks, and also explain how “rap artists often create a hyper-masculine, street-hardened persona for their musical careers because such personas lead to greater commercial success”. But, they stress, “these personas rarely represent real-life identities”.
‘Not Like Us’ was the standout of a series of back and forth diss tracks released as part of a rap battle between Drake and Lamar, both of whom are signed to Universal. The major has been scathing of Drake’s lawsuit, insisting that he is simply bitter that everyone agrees Lamar won the rap battle.
It has also stressed that lyrics in hip hop diss tracks should be considered as “hyperbolic insults” and “non-actionable opinion”, meaning Drake’s claim of defamation should be dismissed.
The four legal experts conclude their brief by stating, “we respectfully urge this court to grant the defendant’s motion to dismiss as to plaintiff’s defamation claim”.