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Crisp Biscuit: When the Law Met Rap

Crisp Biscuit: When the Law Met Rap
Crisp Biscuit: When the Law Met Rap
Horatiu Druma-Strugariu
November 8, 2021
Decisions

It’s trite that, in Court, only experts can explain the meaning of words in a foreign language. But what about when the language is slang in a rap? Well, thanks to Confetti Records v. Warner Music UK Ltd, we know that too might require the testimony of an expert (possibly even an expert drug dealer). Confetti Records is an interesting case that shows us how societies change, which serves to provide a laugh, and which might make for a creative argument in your next case. Confetti Records is my favorite case, and not just because I grew up listening to UK Garage (the genre of music involved) and so have a big soft spot for it, but also because it’s probably the most surreal case I’ve ever read.On the surface, the case is a straightforward copyright infringement and moral rights case. However, the moral rights bit is based on the alleged derogatory treatment of a song. Specifically, the author alleged derogatory treatment by way of a rap overlaid on the song. The song in question is called ‘Burnin’ [you can find a copy of it below by the way]. That’s the most titillating aspect of the case, and it starts around paragraph 150.Best of all is paragraph 154, where Lewison J. accepts the argument that the words of a rap, although in a form of English, are for practical purposes a foreign language (requiring expert testimony). One of the parties’ evidence as to the meaning of the words, not being an expert, was thus inadmissible. Lewison J. contemplated that deciphering a song like ‘Burnin’ might require the testimony of an expert drug dealer. He admitted that the occasion on which this is likely to be provided are rare:

  1. Mr. Pascal did not himself claim to know what street meanings were to be attributed to the disputed phrases, but said that he had been told what they were by an unnamed informant conversant with the use of drugs. Mr. Howe submitted, correctly in my opinion, that the meaning of words in a foreign language could only be explained by experts. He also submitted, again correctly in my opinion, that the words of the rap, although in a form of English, were for practical purposes a foreign language. Thus he submitted that Mr. Pascal's evidence, not being the evidence of an expert, was inadmissible. I think that he is right, although the occasions on which an expert drug dealer might be called to give evidence in the Chancery Division are likely to be rare.

At paragraph 155 Lewison J. cites “the Urban Dictionary”, and the definitions available as a part of his research. His approach wasn't wrong. However, one can’t help but be amused by reliance on this in cases as early as 2003:

  1. But even if I pay regard to Mr. Pascal's evidence on this topic, I do not find that the meaning of the disputed words has been proved. Mr. Pascal's evidence was hearsay, and the source of his information was not identified. Mr. Hunter, one of the MCs with The Heartless Crew, (professionally known as MC Bushkin) had not heard of the meanings that Mr. Pascal attributed to the disputed phrases. Nor had Mr. Thomas. A search on the Internet discovered the Urban Dictionary which gave some definitions of "shizzle my nizzle" (and variants) none of which referred to drugs. Some definitions carried sexual connotations. The most popular definitions were definitions of the phrase "fo' shizzle my nizzle" and indicated that it meant "for sure". There were no entries for "sizzle my nizzle" or for "mish mish man", and Mr. Hunter said that Elephant Man (the MC who uttered the disputed phrases) often made up words for their rhyming effect.

At paragraph 156, ‘string dem up one by one’ was held to potentially be advocacy for reinstating capital punishment (rather than an invitation to lynching):

  1. To be fair, Mr. Shipley did not press this complaint in his closing submissions. Instead, he sought to advance a new case. First, he said that the treatment was derogatory because all coherence of the original work has been lost as a result of the superimposition of the rap. Second, he said, whatever a "mish mish man" was, the words of the rap "string dem up one by one" was an invitation to lynching. It is by no means clear that the words on the rap are in fact "string dem up". Moreover, I am not at all sure that the meaning Mr. Shipley attributes to the phrase "string dem up" is the only possible meaning. A proponent of capital punishment who says that murderers should be "strung up" would usually be taken to advocate the return of a hangman, rather than lynching.

Lastly, at paragraph 158, Lewison J. infers no prejudice from The Heartless Crew riding the rhythm right through the track. Ultimately, derogatory treatment was not found:

  1. I do not infer any prejudice from the fact that The Heartless Crew rode the rhythm right through the track. If I am to draw any inference, the inference I would draw, having listened to the original mix of "Burnin", is that it was designed to be the background track to a rap. Indeed the proposed mix for the single of "Burnin" by the Ant'ill Mob (called the vocal mix) was itself a rap which rode the rhythm throughout the track.

[...]

  1. If, however, Mr. Alcee is a member (or perhaps the only member) of the Ant'ill Mob, then the way in which they are presented may impinge on his own honour and reputation. It is clear to me, despite Mr. Pascal's protestations to the contrary, that the Ant'ill Mob were costumed to look like 1930s gangsters. As it was put in a newspaper article in February 2002, the release of "Burnin" was twinned with “a video showing the Mob in true 1930s gangster style". My own viewing of the video confirmed this impression. I do not, therefore, infer any prejudice from the invitation to "string up" "mish mish men", even if it bears the meaning that Mr. Shipley attributes to it.

Here’s the original ‘Burnin’:Anthill Mob - Burnin (Music Video)And here’s the allegedly derogatory version:Heartless Crew Crisp Biscuit vol 1.Track 3 - Burinin - With lyrics

Crisp Biscuit: When the Law Met Rap

Horatio is Head of Canadian Content at Alexsei.