Author: Washington Journal of Law, Technology & Arts

Under a Microscope: Megan Thee Stallion trial shows how women of color are hypersexualized and criticized rather than protected

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Courtroom in the Federal Building and U.S.Courthouse built by architect Henry B. Carter in 1938. Original image from Carol M. Highsmith’s America, Library of Congress collection. Digitally enhanced by rawpixel. by Carol M Highsmith is licensed under CC-CC0 1.0

By: Talia Cabrera

*TW: Story about Victim of Assault*

At the end of 2022, Megan Thee Stallion entered a courtroom in Los Angeles, CA to face her assailant and finally testify in the court of law. For the past two years leading up to the trial against Tory Lanez, Megan Thee Stallion has dealt with the court of public opinion as she has defended her name and actions every time she stepped outside her home. At the age of 25, Megan Thee Stallion was a victim to gun violence, yet has faced an endless amount of public scrutiny.

From the moment Megan Thee Stallion was shot, every word and action she would do was under a microscope. Those who did not believe Megan was shot would doubt whenever she was silent after a question or make a video analyzing her body language to prove that she was lying. As if public scrutiny was not enough, Hip-hop artists were quick to capitalize on Megan’s trauma. Artists like Da Baby would retweet jokes about Tory Lanez shooting Megan. Even Drake made an insensitive comment about Megan’s credibility in his song “Circo Loco” rapping, “This bitch lie ‘bout getting shots, but she still a stallion. She don’t even get the joke but she still smillin’.” What’s funny about a woman being shot for no reason?

Megan Thee Stallion has been told she is too aggressive, sexual, and a liar. She was a victim of gun violence but was instead painted as a villain. Too many men continuously treat women as objects and find ways to justify their abuse.

In the height of the MeToo movement, women were empowered to step forward to confront a long history of being abused and taken advantage of. However, we tend to look at these movements with a white lens and never talk about the discrepancies women of color face. The hypersexualization of women of color is often the justification for abuse. Latinas are often described as “fiery”, “spicy”, and my least favorite thing to be called is “exotic”. This is not an experience latinas only face but is shared with other women of color. We are fetishized yet not protected. Women of color, particularly black women, are often not believed when they are victims of abuse. 40 percent of black women at some point in their lifetime will experience some form of physical violence. These high numbers are alarming but never given the same amount of attention. In a recent interview with CBS Morning news, Gabrielle Union points out how this discrepancy plays out in the media. In the new season of “Truth Be Told,” Gabrielle Union and Octavia Spencer are putting a spotlight on sex trafficking of young black and brown women and the disparity of media attention on this global epidemic. It is not the rest of the world taking initiative to report but instead it is in the hands of women of color to make sure this information is shared. Remember Gabby Petito and the endless reporting? Where’s the same outrage for black and brown girls being kidnapped? While there was extensive reporting around the Gabby Petito episode, the same outrage is not shown for black and women. 

The trauma Megan Thee Stallion has gone through and is continuously facing is an example of women of color, specifically black women, falling through the cracks of our community. We have failed to protect black women, yet they are the first to stand up for others. Without Alicia Garza, Patrisse Cullors, and Opal Tometi, there would be no #BlackLivesMatter. Black women and girls were in the shadows of the civil rights movement but nothing would have gotten done without their accomplishments. Megan Thee Stallion is a victim. The complexity of this situation is that “justice” was never served. Megan Thee Stallion should have never been shot and no man should ever think shooting a woman is ever justifiable. We need to do better in bringing attention to the harm women of color face on an everyday basis. In the meantime, women of color are going to continue to protect themselves since it seems like no one else is willing to.

Are rap lyrics protected as free speech or could they send you to prison?

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By: Aminat Sanusi

Over the past couple of decades, rap music has become part of mainstream culture and cultivated a billion-dollar industry. That means that more eyes are on every move the artists make and sometimes those artists get into trouble with the law. However, in recent years prosecutors have tried to use the artists’ lyrics as evidence during their trials to prosecute them for crimes charged against them. There has been much outcry and concern about using artists’ lyrics against them in a court of law because of First Amendment rights and how it disproportionately affects Black, Indigenous, and people of color (BIPOC). The Supreme Court has yet to rule on whether rap lyrics are protected speech under the First Amendment, so prosecutors in many states continue to use them as damming evidence in criminal trials.

How has the history of the First Amendment intertwined with artistic expression?

In a 1992 Supreme Court decision, Dawson v. Delaware, the court held that it is unconstitutional to use protected speech as evidence when that speech is irrelevant to the case. This case set a heightened evidentiary standard when it came to different forms of protected speech. This heightened evidentiary standard is disproportionately applied when it comes to rap music even though country music also uses vulgar language and speaks of violent and graphic imagery. Rap and hip-hop music in criminal trials has been treated as inherently criminating. The prosecutors in these criminal cases sometimes use rap videos in addition to the lyrics to try and convince juries that those artists more than likely committed the crime since they portrayed gang-related activities in their videos.

The majority of artists in the rap and hip-hop music industries are members of the BIPOC community and when they are facing criminal charges the prosecutors often use their rap lyrics as evidence that they committed the crimes. Rap lyrics are known to have vulgar language, and mention drug and alcohol use, gang-related activities, and different types of criminal activity. However, musical lyrics are considered artistic expression and are protected under the First Amendment. The First Amendment to the Constitution grants a person the right to free speech, press, and freedom to exercise the religion of their choice. The argument against the use of rap lyrics to incriminate hip-hop and rap artists is the fact that lyrics are free speech which is constitutionally protected.

Should artists be fearful of expressing their experiences in their music because it could be used against them in a court of law?

 In 2022, Grammy-award-winning hip-hop artist Jeffery Lamar Williams, famously known as, “Young Thug”, was charged with conspiracy and street gang activity under Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act. Mr. Williams is an African American male who raps about his life experiences including lyrics covering gang activity, drug and alcohol use, and living in poverty. The main piece of evidence used in Mr. Williams’ case was his rap lyrics. Many well known artists and celebrities have condemned this practice. They believe that prosecutors should not use Mr. Williams’ lyrics as evidence against him because, in addition to his music being protected speech under the First Amendment,  the lyrics have no relevance to the crimes he’s being prosecuted for. The prosecutor in Mr. Williams’ case claimed that the lyrics are not protected speech because they had relevance to the crimes he was facing. Mr. Williams’ trial has just commenced but it is not clear yet whether the use of his rap lyrics will be admissible or limited in his case.

Another unfortunate case of rap lyrics used as evidence was former rapper McKinley “Mac” Phipps Jr., who was convicted of manslaughter in 2001 after prosecutors recited his rap lyrics in court. He served twenty-one years in prison out of a thirty-year sentence and was released in 2021. In Mac’s case, he was arrested when rap and hip-hop first began to play a huge role in mainstream culture but at the time people did not pay much attention to the use of the artist’s music against them in court proceedings in a prejudicial manner.

What does the future hold?

In the summer of 2022, the Governor of California, Gavin Newsom, passed the Decriminalizing Artistic Expression Act into law, which limits the use of rap lyrics as evidence in criminal trials. This Act does not completely exclude the use of the lyrics against artists in court proceedings, however, it does provide that the lyrics need to have relevant substantive value to prove the crimes of the case and not be unduly prejudicial. This Act encompasses visual art, performance art, poetry literature, film, and other media. If the prosecutors in California wish to use the rap lyrics as evidence, they would have to show that the lyrics were written around the time of the crime and that the lyrics have some specific similarity to the crime itself. This new law in California will have an immense effect on the way prosecutors prosecute many of the rap and hip-hop artists accused of criminal activity and how rap lyrics or music videos may be used as an admission of guilt.

Additionally, this past year the New York legislature introduced a bill similar to the law passed in California that would limit the admissibility of a defendant’s artistic expression against such a defendant in a criminal proceeding. The bill is called the Rap Music on Trial Bill. This bill would not completely ban the use of rap lyrics in a criminal proceeding but would ensure that the lyrics used were to show literal and not just figurative or fictional meaning. The Bill has been voted on and passed in the New York State Senate but still awaits a vote in the New York State Assembly. The United States House of Representatives has recently introduced legislation called the Restoring Artistic Protection (RAP) Act which would limit the admissibility of lyrics as evidence in criminal cases. Co-sponsors of this bill, such as Representative Jamaal Bowman from New York has stated he supports this bill because of how it will prevent talented artists from being imprisoned for expressing their experiences. Additionally, it would provide comfort to artists who are afraid of expressing their creativity because they do not want their art used against them in a criminal case. The RAP Act currently has ten co-sponsors and has yet to be taken out of committee and brought to the floor for a vote. Hopefully, with all of these various changes in legislation, in the future rappers and singers will not be charged with crimes simply because of their artistic expression in lyrics and videos.

Major Tuddy’s Major Trademark Issue

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By: Kelton McLeod

On January 1st, 2023, the Washington Commanders unveiled a new mascot, Major Tuddy, a tall humanoid hog, wearing a military-inspired helmet and a perpetual grin. The unveiling has gone over with a healthy mix of derision and confusion, just about as well as anything one would expect to come from the Dan Snyder-owned Commanders. While even casual football fans might understand that Major Tuddy is named after the slang term for a touchdown, some are confused why the Washington, D.C.-based football team would want a hog to be the new symbol of their organization, while others are filing a trademark lawsuit because of it. 

From the 1980s and into the 1990s, Washington had the best offensive line in all of professional football. These men, including the likes of Joe Jacoby and Mark May, were known as The Hogs. The Hogs were, and remain, an important piece of Washington’s history, helping the team win its only three Super Bowls. But despite bursting onto the scene through a sign emblazoned with “Let’s Get Hog Wild,” Major Tuddy has not had many fans, players, or former players very excited. 

Instead of being a triumph at the end of a lackluster season (the Commanders were eliminated from playoff contention the day Major Tuddy was revealed), Major Tuddy has proved to be yet another point of controversy for the Commanders Organization. In fact, some of the original Hogs, including the likes of Joe Jacoby and Mark May, are so unenthused with the new mascot that they issued a statement prior to Major Tuddy’s announcement distancing themselves from Dan Snyder (the Commanders current majority owner) and referencing potential legal action related to this new Hog. The members of the original Hogs (joined by John Riggins, Fred Dean, and Doc Walker) created O-Line Entertainment, LLC,  and in July of 2022, O-Line Entertainment filed trademark applications to the federal register for ‘Hogs’ and ‘Original Hogs,’ as the terms relate to professional football paraphernalia and merchandise. O-Line Entertainment sees Major Tuddy as a potential infringement on their mark, an outright attempt to capitalize and commercialize on the work of the Hogs of the 80s and 90s, and an attempt to confuse the fans. 

While the Commanders imply they have no intention to financially capitalize on Hogs as a mark, O-Line Entertainment has a real shot at being able to exclude the Commanders from even trying. The Lanham Act §43(a) creates a statutory cause of action for trademark infringement, where “any person who . . .uses in commerce any word, term, name, symbol, or device, . . . likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person . . . shall be liable in a civil action by any person who believes that he is or is likely to be damaged by such act.” Trademarks exist to help consumers identify the source of a good. So, if someone attempts to use another’s mark, or something substantially similar, to cause confusion as to the source or sponsorship of a good, that party is liable for trademark infringement. In this case, it is hard to refute the source of Major Tuddy’s swine heritage, as even his official team profile references the offensive line from the 80s and 90s. O-Line Entertainment would just need to prove that the likelihood of confusion exists between their products and those of the Commanders organization, not that actual confusion has occurred. Under current law, there is a prospect of O-line Entertainment doing so.

While O-Line Entertainment’s trademark registration has yet to be granted, and the Commanders organization could attempt to invalidate it, this likely would not be worth the problems it would cause. The Commanders are already in the midst of a Congressional investigation, and Dan Snyder’s time as owner might not be able to handle the bad press. While it is hard to expect Dan Snyder and the Commanders leadership team–a group known for trying and failing to hide behind the best parts of their team’s legacy–to handle themselves in a morally upstanding way, how they choose to handle the marketing and merchandising of their new mascot could mean another long and protracted trademark dispute where they lack the moral high ground.  

Zoom Voir Dire: A Technological Gap is Not Going to Solve the Lack of Diversity in Jury Pools

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By: Talia Cabrera

Voir dire is the process of ensuring the “jury of your peers” is a representation of your community. Juries are made up of ordinary citizens and play an important role in the criminal justice system. Jurors, who are given the responsibility to decide a case’s verdict, enter the complexities of the courtroom with their own experiences and biases. Notably, jurors are often shouldered with the responsibility of making a decision that will impact how an individual’s life will play out. However, justice is often compromised due to the discrimination that occurs in selecting a jury. Juries that are not representative of the community at large will not only affect marginalized communities of color, but will also lead to higher rates of wrongful convictions and, ultimately, a system far from just.

Unrepresentative juries disproportionately affect communities of color. This discrepancy is apparent first in the unrepresentative jury pools from which jurors are selected and is then reinforced through current and historical use of peremptory strikes to remove people of color from juries. Apart from the institutionalized racism engraved in our history, there are a variety of factors that predominantly affect communities of color and prevent them from serving on juries. According to a report from the Equal Justice Initiative, these factors include: the inability to request time off for work; the financial burden of participation, which includes the courts not paying jurors enough money to participate and the difficulty of obtaining family care; and the lack of transportation for people to report to the courts. Ultimately, these barriers to jury service, which deeply affect the makeup of juries across the nation, need to be reformed to ensure the court system is fair. 

Discrimination in jury selection is a problem many courts have recognized and are striving to change. In 2018, the Washington Supreme Court adopted General Rule 37, which sought to eliminate the unfair exclusion of potential jurors based on race or ethnicity. According to the text of the rule, “the court shall then evaluate the reasons given to justify the peremptory challenge considering the totality of circumstances. If the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied.” Given the adoption of this rule, it is clear that Washington has taken initiative to reduce the discrimination we see in a courtroom in order to strive for justice. However, even courts like Washington, who have taken some steps in the right direction, need to take a step further. In order to have more inclusive juries, courts must create opportunities for more diverse communities to participate in jury selection. While it is clear that a state like Washington is trying to reduce unfair exclusion of potential jurors, peremptory challenges are just one part of a bigger issue that needs to be reformed. Courts need to take a step back and see how they can create a comprehensive solution that will bridge the gaps of accessibility that are currently present in jury selection. 

For example, the COVID-19 pandemic forced many sectors to transition to a “work-from-home” format in order to preserve workers’ health and the health of others around them. As of today, many companies continue to employ workers who work remotely, as many realized workers could continue to be efficient from the comfort of their home. While remote work was initially a temporary option for the pandemic, Washington state has seen more participation in remote jury selection and continues to use Zoom for that purpose. Whether Zoom or courthouse, not much has changed in the way jury selection occurs in King County, e.g., jurors still get notified in the mail if they have jury duty. But now, jurors no longer need to attend in person. In King County, jurors are still required to set time aside to attend court but now, so long as they have an electronic device, jury duty can be completed anywhere.

Through the incorporation of Zoom in court proceedings, jurors no longer need to spend time on tasks such as figuring out how to get to the King County Superior Courthouse downtown. Jury members are now able to eat lunch at home, avoid paying expensive parking, and still appear for 90 minutes in the comfort of their living rooms. Increased participation should help create a better reflection of the community in the jury of our peers. However, there are still many issues left unresolved. Even though Zoom voir dire may help with accessibility, such benefits are only available to those who have the privilege of possessing technology. Technology may not be available for everyone. It is possible that a juror may not have the appropriate resources to withstand hours of jury selection. For example, some jurors may not even have Wi-Fi. In addition to the technological divide that zoom voir dire creates, many of the same factors we have seen in the past, like the financial burden of taking a day off work, continues to be a prominent issue for people participating in jury selection. Although participation may have increased with zoom voir dire, it may have only done so for those who have the privilege of accessible technology.

Maybe there is a way for technology to help eliminate the risk of unrepresented juries in our court system. It is possible that new laws, policies, or even court rules like General Rule 37, will need to be created to help alleviate the factors that prevent jurors from participating. If possible, courts should provide individuals without access with loaned technology. For jury participants who do not have access to Wi-Fi, the courts should provide usable locations with Wi-Fi or temporary Wi-Fi vouchers. Currently, there is not a lot of faith in the criminal justice system in part because of the disparity in makeup of the broader community and that of jury pools. Efforts must be made to dismantle discrimination and create a fair and just court system. If not, we will continue to see the reinforcement of systemic racism throughout our criminal justice system.

Into the Dungeon–A Comparative Look at the Original and 2023 Open Gaming Licenses

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By: Perry Maybrown

It all started with a leak, which led to a draft, before ending in a retraction.

Wizards of the Coast (WotC) rolled a critical failure when trying to modify their Open Gaming License (OGL)—a license that allows other creators to make use of some Dungeons & Dragons content as building blocks for their own games—after a draft of the updated license was leaked to news outlet Gizmodo. While WotC insisted that little would change, the new license seemed to say otherwise.

The community revolted, leading to promises of boycotts, mass cancelations of subscriptions to D&D Beyond, and a new license called Open RPG Creative License (ORC) from rival company Paizo. Faced with this onslaught, the gaming company chose to back down and keep the OGL intact.

The OG OGL

The original OGL (1.0a), published in 2000, offered prospective gamers a perpetual license to “copy, modify and distribute” the open game content making up the Systems Reference Document (SRD). While the SRD changes with each new edition of D&D (excluding the 4th edition, which is a completely separate can of worms), the OGL stays the same and is perpetual, meaning the license has no set expiration date. The mechanics and building blocks for a Table-Top Role Playing Game (or TTRPG) make up the bulk of the SRD, which creates a base from which creators can build their own games. You can’t use the OGL to publish works that use WotC’s trademarks, like the famous dragon ampersand.  

1.0a includes several caveats that creators must follow to not confuse anyone about what is and what isn’t open game content. For one, a complete copy of the OGL must be included with every copy of open game content distributed. To avoid confusion, creators must also label what is open game content. Content can be directly from the SRD, open game content from other game makers, or original works that the creator wishes to add to the proverbial open game content pile. 

The license is far from perfect, however. Most notable is the lack of the  terms “revocable” or “irrevocable” in its text. This omission makes it difficult to know if WotC can terminate the OGL. Only further muddying the waters is section IX of the license. Through this clause, WotC retains the authority to update the license and allows creators to apply any authorized version of the OGL to any open game content distributed under any license version.  

WotC may argue that they can update the OGL and include in the new version language that declares the old to be unauthorized and thus void. However, because the OGL is a long-standing open license, there are legal arguments and evidence that may contradict WotC’s statement and prevent them from deauthorizing 1.0a. Many online have weighed in on the issue, even some legal authorities, with varying conclusions. For now, it’s challenging to say what way a court may lean, but even in that uncertainty, WotC pushed forward with the plan. 

The Leaked Draft

On January 5th, 2023, a draft of the new OGL 1.1 was leaked, and it was a radical departure from 1.0a. The license now limited the OGL to the “creation of roleplaying games and supplements in printed media and static electronic file formats.” Meaning creators could no longer create other media such as video games, videos, plays, or otherwise use open gaming content. There was a misunderstanding because one of the sections seemingly implied WotC would own any creations made under the OGL; however, that reading was likely incorrect. While section III does state that WotC owns both the licensed and unlicensed content, as defined in the OGL section I(A), neither of those categories include content made by the licensee. Licensed content refers to content within the SRD, and unlicensed is content not within the SRD. However, under section X(B), creators would grant WotC “a nonexclusive, perpetual, irrevocable, worldwide, sub-licensable, royalty-free license to use that content for any purpose.” So while creators would still own their content, WotC would still be allowed to use it. 

Some provisions did remain the same between 1.0a, and 1.1. For example, publishers would still be required to include the license with distributed works and identify anything considered “licensed content.” Some sections were expanded in the new draft, like the termination clause, which now allowed termination for various causes. In addition to these expanded terms, further requirements were also tacked on to the license. Such as a clause detailing the repercussions of terminating the license and an indemnity clause that would shift the financial burden to the licensee in several instances if WotC faced legal action due to the license’s contract. While these modifications were likely made to shore up 1.1 legally, the words “revocable” or “irrevocable” were still not in the new license.

The most significant change in 1.1 was that it had been split into two parts, commercial and non-commercial. Commercial had additional monetary requirements regarding royalties and registration. If someone wished to create content to sell, they were required to register and provide WotC with extensive information about the product and creator, reporting any revenue of more than $50,000. Royalties to WotC were only required once a creator had made more than $750,000 in revenue per year across all products produced under the OGL. Creators would have to send 25% of any qualifying revenue exceeding $750,000. Separate terms and royalty rates were detailed for Kickstarter-backed projects. 

The Updated Draft

Incensed by this update, fans pushed back, leading WotC to respond with a new draft, 1.2. The license was no longer split in two and did not require creators to pay royalties to WotC. Core D&D mechanics were now licensed under the creative commons license 4.0 CC BY. Rather than requiring the full license, creators could now either include the license or display the newly designed OGL product badge on their work. 

Creators were also no longer required to grant WotC a license to use works created under the OGL. Even a new provision under section 3 allowed creators to WotC for copying works (though it does have quite a few restrictions). There was no longer an indemnity clause, though the license bar users from participating in class actions against WotC for activities regarding the OGL. To avoid further conflict, 1.2 finally incorporated the magic words. “This license is perpetual (meaning that it has no set end date), non-exclusive (meaning that we may offer others a license to Our Licensed Content or Our Unlicensed Content under any conditions we choose), and irrevocable (meaning that content licensed under this license can never be withdrawn from the license). It also cannot be modified except for the attribution provisions of Section 5 and Section 9(a) regarding notices.” 

In The End

While 1.2 was created to appease the masses, the die had already been cast, and fans were not ready to accept what seemed to be just a modern rewording of 1.0a. WotC eventually backed down, deciding it was not worth the hassle to update the OGL. It is unclear in the future if any new content will be included from the next generation of D&D or if the OGL will stay as it is, only covering the three SRDs, and other open gaming content created for it. The future of these available licenses is unclear, but at least 1.0a is safe from change for now.

Disclaimer: I worked at Wizards of the Coast from 2019-2020. None of the information discussed in the above article is confidential, or provided directly to me by Wizards of the Coast or any of its agents during or after my year of employment. All documents and sources referenced are in the public domain.