Hip-Hop and Rap Music

No genre of music has a deeper relationship with the law than hip-hop and rap music. No other genre of music, at least since the folk music of the 1960s, has been so explicitly aimed at prevailing social and legal conditions. And certainly no other genre of music has seen so many of its artists end up in legal battles. While it would be beyond the scope of this entry to explain how hip hop has impacted the law and vice versa, two aspects of the relationship deserve special focus. Hip Hop and Copyright One issue at the heart of hip hop’s survival as a musical form is the relationship between rap music and the Copyright Laws. As Chuck D from Public Enemy once famously noted, rap is not actually music, it is rap over music. From the beginning, rappers have avoided making their own music, instead choosing to borrow music from other sources— known throughout the industry as ‘‘sampling.’’ The 1979 classic ‘‘Rapper’s Delight,’’ by the Sugar Hill Gang, contained music from Chic’s disco hit, ‘‘Good Times.’’ And the development of the musical instrumental digital interface (MIDI) in the early 1980s made sampling commercially feasible even for less affluent artists. Yet the Copyright Act of 1976 poses a significant problem for sampling. It gives musical authors the exclusive rights to perform, display, distribute, and reproduce their work. (In sampling controversies, there can be two different copyrights at issue. The first is the copyright to the musical composition; the second is the copyright to the actual sound recording.) The act prevents unlicensed users from copying protected works to make substantially similar works. Throughout hip hop’s early development, little attention was paid to Copyright Law. It was largely ignored by artists and recording companies, who took a catch-me-if-you-can approach to sampling. That, however, quickly changed. For in 1991, Biz Markie was successfully sued for using three words and a short keyboard riff from Gilbert O’Sullivan’s song ‘‘Alone Again (Naturally)’’ on his track ‘‘I Need a Haircut.’’ This decision shocked the hip-hop industry; it seemed to suggest that all digital sampling, no matter how short, was illegal. Since that point, an attitude of extreme caution has replaced the former attitude of utter abandon; hip-hop artists and their production teams now usually pay considerable figures for licenses for all material they use, no matter how short. Most digital sampling controversies are now settled quickly and out of court; the only real issue is what the purchase price of the sample will be. And because cases have been so quick to settle, the legal questions surrounding sampling have gone largely unresolved. What exactly is the legal test for infringement? Do very minor samples (like arpeggiated chords) constitute infringement? Should the defenses of fair use and de minimis use be recognized— and, if so, to what extent? No dominant approach to these questions has yet emerged. On a larger scale, the conflict between Copyright Law and the hip-hop industry reflects a growing uneasiness over Copyright Law more generally. Copyright was traditionally protected precisely because it was thought to encourage artistic and scientific development; the Constitution, for example, gives Congress the power to create copyright protection so as ‘‘to promote the Progress of Science and useful Arts.’’ Yet, increasingly Copyright Law is being seen as an obstacle—not a means—to creative freedom. Sampling may be just another example. If sampling had been categorically considered illegal copyright infringement before 1991, many classic hip-hop albums might have never been made. Public Enemy once claimed that, after the flurry of lawsuits began in the early 1990s, it had to change its style significantly to avoid litigation. To many, this demonstrates how overbroad Copyright Laws can become inconsistent with free speech. (The Supreme Court, however, has held in Eldred v. Ashcroft [2003] that Copyright Laws will generally not be reviewed under the Free Speech Clause.) Hip Hop and Censorship Over the past twenty years, there has been significant controversy over hip-hop lyrics that have been perceived as promoting violence, racism, misogyny, drug use, and homophobia. The strongest objections to hip-hop lyrics have been against their proclivity toward violence. Early hip-hop albums reflected the socially conscious soul music of the 1970s from which they came, and so were not particularly inclined toward violence. But with the rise of artists like Ice-T and NWA (and, later, Tupac Shakur and Notorious B.I.G.), hip-hop lyrics began giving detailed, gritty descriptions of violence. Supporters claimed that these descriptions were merely vivid descriptions of the reality black youth faced; opponents claimed that they glorified and encouraged violence. Confrontations were rare but intense. After NWA released the track ‘‘Fuck the Police’’ on its 1989 album, Straight ‘Outta Compton, the FBI sent a warning letter to NWA’s record label. When C. DeLores Tucker, the chairwoman on the National Political Congress of Black Women, led a national campaign against violent lyrics in the 1990s, Tupac Shakur attacked her personally on several of the tracks on his critically acclaimed 1996 album, All Eyez on Me.

For much of the last decade, the focus has been on what the government should do to discourage violent lyrics. As the Constitution’s free speech clause likely prohibits direct prohibition, those who oppose violent lyrics have sought to impose restrictive labeling and marketing requirements. The regulation movement has supporters on both the political left and right; it was Joseph Lieberman and Hillary Clinton who, along with some Republican senators, introduced the failed Media Marketing Accountability Act of 2001, which would have directed the Federal Trade Commission to prosecute record companies selling offensive albums to minors. This issue, however, has largely now slipped into the background, as hip-hop album sales continue to rise and legislators’ concerns have shifted to other matters.

Of course, there have been other objections to hiphop lyricism. For a time, the nation’s attention was focused on lyrics that were thought to be far too sexually explicit. In the early 1990s, a 2 Live Crew album was declared obscene by a federal district judge, although that decision was eventually reversed by the Court of Appeals. Later, the country’s attention turned to lyrics that vilified gay people. Eminem’s 2000 album The Marshall Mathers LP created a storm of controversy with its gay-disparaging lyrics—a storm that only began to subside after Eminem performed with Elton John, a notable gay performer, at the Grammy Awards. Indeed, it is fair to say that whenever this country has been concerned with the appropriateness of musical lyrics, it has first cast an eye (and a finger) at hip-hop culture. (Another prominent example of this came in 1992, when the presidential candidate Bill Clinton publicly attacked Sister Souljah, a one-time associate of Public Enemy, for having racist hip-hop lyrics.)

CHRISTOPHER C. LUND

References and Further Reading

• Garnett, Matthew S., The Downhill Battle to Copyright Sonic Ideas in Bridgeport Music, Vanderbilt Journal of Entertainment Law and Practice 7 (2005): 8:509–23.
• George, Nelson. Hip Hop America. New York: Penguin Books, 1999.
• Grand Upright Music v. Warner Bros. Records, 780 F. Supp. 182 (S.D.N.Y. 1991).
• Kravis, Randy S., Does A Song By Any Other Name Still Sound As Sweet? Digital Sampling and Its Copyright Implications, American University Law Review 43 (1993): 4:231–75.
• Nimmer, Melville B., and David Nimmer. Nimmer on Copyright. New York: Matthew Bender, 2004.

Cases and Statutes Cited

• Eldred v. Ashcroft, 537 U.S. 186 (2003)
• Pub.L. 105-298, 1998 Copyright Term Extension Act (codified in scattered sections of 17 U.S.C.)

See also Civil Rights Laws and Freedom of Speech; Hate Speech; Political Correctness and Free Speech; Public Vulgarity and Free Speech