The AS WE SPEAK Case Study (Part I): From Inception to Emmy Nomination

Part I: The Rights

Beginning in 2017, I produced a documentary called AS WE SPEAK: Rap Music on Trial. It premiered at the 2024 Sundance Film Festival, and two months later, the film launched globally on Paramount+. Last summer, we were invited to screen the film at the U.S. Capitol, and last week, it was nominated for an Emmy Award for Best Arts and Culture Documentary. The journey from idea to exhibition was equal parts insane, infuriating, and enlightening, a process on which I have never fully reflected. Until now.

Each week until the awards ceremony, I will detail the process of bringing this film to life. I recognize that there are a thousand other stories like the one that follows, but this one is mine, and as my wife will tell you, it has plenty of drama! It is not an instruction manual — in fact it may be more of a cautionary tale — and it is certainly not meant to be a burn book for all the people that passed on the project over the years. Rather, it’s a reflection on both the successes and failures on the way to making a movie, and an homage to all the filmmakers that push the rock up the hill.

Documentary filmmaking, indie filmmaking, creative collaboration of any kind, it’s all a slog. But when you believe in a story, the goal is to continually attract dedicated collaborators that will fight to create something special. So more than anything, this is a thank you to the folks that helped make AS WE SPEAK real. Enjoy the ride.

The Original Article

SUMMER 2016 — The University of Richmond alumni magazine shows up in my mailbox three times a year. I’ll usually flip through the pages at least once to see if any alumni I recognize are mentioned, then toss it in the bin. But in the Spring/Summer 2016 edition, one article caught my eye. It featured a bold headline and a black-and-white photo of a intensely staring white guy in front of a Public Enemy bullseye poster.

Not your usual fare in the U of R alumni mag

The profile of Erik Nielson, an English professor who had recently been certified as an expert witness in hip hop, was fascinating. Erik was a Shakespeare scholar who had written extensively about the poetic and linguistic intricacies of hip hop, and how cultural, social, and judicial injustices, particularly in American urban centers, had created a complex, sophisticated art form that told a uniquely Black American story. Now, his academic writing was being used as the basis for his expert testimony in court.

In hundreds of instances, prosecutors had successfully entered rap lyrics or music videos against artists as evidence of criminal conduct, often using the art form merely to associate the defendant with the character of someone with the propensity to commit crime. In his role as an expert witness, Nielson served as the only person able to testify to an alternative interpretation of rap music, one more sympathetic to the customs of the art form, and appreciative of the verbal dexterity displayed by the artists. In his testimony, he would make clear that there is a difference between the artist and his or her alter ego (Prosecution: “Have you ever interviewed Eldorado Red?” Nielson: “No. Or Gary Bradford.”), provide historical context to whatever selectively isolated couplets the prosecution offered (“This rhyme has been made 1,000 times before.”), and ensure that the jury understood artists as a whole, with varied perspectives in different pieces (“In some [songs] he’s got a Learjet and a Ferrari. In others, he doesn’t have a — excuse my language — pot to piss in…he is exploring identities in a number of ways through his music.”) Oh, and the significance of his identity was also not lost on him:

“Nielson said that he is ‘often uncomfortable’ that his testimony as an expert witness in some ways plays into the stereotypes that he is there to refute. He’s conscious that, as he put it, ‘being a white man gives you a certain authority in the eyes of certain jurors…I’m aware of that, but in the end I’m not going to do this and let somebody go to jail.”

I was fascinated, enthralled at this active, dynamic confluence of my favorite musical genre and my chosen profession. At the time, I was three years into practicing commercial litigation. I had made dozens of court appearances, taken a handful of depositions, and been second- or third-chair in two arbitration hearings. I had spent lots of time in the judicial arena, and was still intimidated as hell. And still, I knew that a criminal justice system was another beast entirely — civil law pits two sides against each other in a battle for financial damages; criminal court is the state’s home field in the championship match for a defendant’s liberty. A great friend of mine, who had been a Los Angeles public defender for a decade, and had shared countless stories of the trial tactics prosecutors somehow always got away with, and the wildly lopsided rulings judges consistently handed in their favor. No matter how strong a defendant’s representation, it was never a fair fight.

Still, this article introduced something new, an injustice so layered and profound — compounding racial, musical, cultural, procedural, political, social, and economic prejudices and biases — and placed it in the most dramatic storytelling setting in America: a court of law. The simple prosecutorial practice of offering rap music or lyrics as evidence of a crime served as an allegory, parable, and cautionary tale all wrapped in one. It was a gripping story, one that I wouldn’t be able to let go of.

Email to Erik Nielson

MAY 2, 2017 — About a year later, I had quit practicing law to start a production company with a partner, Peter Cambor. With District 33, Pete and I sought to find true stories from less recognizable sources and develop them for documentary and/or scripted adaptation. We launched with two big swing projects: Pete had tracked down the rights to an incredible article from Outside Magazine, while I had spent years first getting audience with, and then gaining the trust of Doc Rivers, the Los Angeles Clippers’ coach who helped the team navigate the eradication of former team owner Donald Sterling from the NBA. But we were always looking for new ideas to build up a development slate.

Within the first month of working together, I mentioned to Pete this article I read a year prior about a professor at my alma mater doing some fascinating work in the hip hop and criminal justice space. Pete dug the idea, so I found Erik Nielson’s email and sent him a note.

Professor Nielson,

I am a former Richmond student, I graduated from the school of liberal arts with a journalism degree in 2008. I read about you last year in the university magazine in an article titled "Rap on Trial", which was fascinating -- not just your work on the admissibility of rap lyrics, but also what led you to study the intersection of law enforcement and hip hop. At the time, I was a trial attorney working in commercial litigation, but was also developing some documentary projects on the side. Just last month, I finally left my firm to work on those films full time, three of which are currently in the early stages of production.

I am a huge hip hop fan and thought about that article recently as I was listening to Gucci Mane's latest album, right after he was released from jail. When I looked you up on the school website and saw that you are currently working on a book, I had to reach out. If you have a minute, I would love to chat about your work and the book. Have you considered developing a documentary or optioning the rights for scripted development?

Thanks professor, hope to connect soon.

Best regards,

Sam Widdoes

Apparently the note was well received. I remember our first phone call a few days later lasted about an hour, and it felt like Erik and I hit it off. We set up a follow up call with his co-author, Andrea Dennis. They had just signed a deal with The New Press, the same publisher of The New Jim Crow, Michelle Alexander’s exceptional work that was the basis for Ava DuVernay’s Oscar-nominated documentary The 13th. Again, the call went well, and Pete and I successfully made the case for Erik and Andrea to allow us to take them to dinner to discuss the potential development of their book in person.

Dinner with Erik and Andrea

JUNE 4, 2017 — Both Erik and Andrea were scheduled to be in New York at the same time for conferences or trials, so Pete and I jumped at the chance to meet them together. We flew out from LA for 24 hours — a business expense we both felt was worthwhile if we could land the rights to this as-yet-unwritten book.

Pete found a not-too-flashy restaurant in Midtown for us all to have an early dinner. Erik’s girlfriend and future wife — a senior ACLU attorney— also joined. From the jump, what jumped out was the wildly unexpected dynamic of Erik and Andrea as friends and collaborators. Erik is a White, male, outspoken non-lawyer academic. Andrea, on the other hand, is a Black woman, former federal public defender-turned-law professor. She is stoic yet witty, passionate yet understated. She’s also the first person to write anything about the use of rap lyrics as evidence — in 2007, Andrea authored the seminal law review article describing the rampant abuse of this type of lyrics, and the myriad reasons why is violated the federal rules of evidence, not to mention the First Amendment.

Over the course of the meal, Erik and Andrea described the type of book they were setting out to write: a deeply researched, authoritative text that was accessible to non-lawyers, and sounded familiar to hip hop fans. They were even talking to Killer Mike to potentially write the forward! What was striking was how intimately familiar these two were with the real stories of these artists, and the life experiences that inspired their music. They dove deep into the language, the style, and the presentation of the individual songs offered in different cases, and could draw a straight line from the music to the social and economic conditions of the neighborhoods from which these artists came, and offering a crystal clear argument for the art form being the truest reflection of the Black experience in America. It was a argument I was generally familiar with — being a rap fan growing up in Los Angeles in the 90’s, I understood the music of NWA, Tupac and Death Row records to be a direct response to the LAPD’s violent mistreatment, and a reflection of the anguish that led to the riots following the acquittal of the officers that nearly beat Rodney King to death. What I hadn’t fully grasped, however, was how consistently that same correlation played out in cities across the country, and that the stories of these criminal trials — of these artist-defendants — collectively told the story of America, and of the 400-year effort by the state to silence Black art.

What’s more, is that Erik and Andrea together were captivating. She was a no-bullshit, cautious-yet-passionate advocate, and he was a bleeding heart sidekick that she had actually trained as an expert witness. Together, they seemed to be polar opposites. And that’s what Pete and I loved.

Shopping Agreement signed

JUNE 24, 2017 - The dinner was a success, and afterward Pete and I could not stop talking about Erik and Andrea as a duo — real life advocates on the front lines, yin and yang personalities. Defending high profile superstars, and unknown high school students whose handwritten notebooks get used against them. As much as we were driven by documentary work, this all felt like it set up perfectly for fictional adaptation. Their work was fascinating, deeply compelling, voluminous, and we knew that we had to try to acquire both scripted and unscripted rights to their unpublished book “Rap on Trial”.

We didn’t have any money, so we offered a simple shopping agreement — a contract that gives one party the exclusive right to “shop” a property to production companies, financiers, studios, and streamers for a period of time, and gives the rights holder the opportunity to negotiate directly with that third party for a purchase price for the rights to the property. It is generally considered a low-risk engagement for the rights holder, and a much higher risk proposition for the acquirer because it leaves lots of elements out of their control — namely, the purchase price of the property. In other words, we could spend six months shopping the project, finally find a buyer, and the authors could demand $1 million and blow up the deal. So the onus is on the acquirer to consistently manage expectations, and maintain a strong relationship with the rights holders during the course of the shopping agreement.

I drafted up a simple agreement from a standard shopping agreement for, and a couple weeks later, we had a six month contract in hand. Maintain the relationship, manage expectations. Shouldn’t be too much of a problem…