Will the Families of Tay-K’s Victims Profit Off His Music? An Intellectual Property Attorney Weighs In.

As we reported last month, Arlington rapper Tay-K was sentenced to 55 years in prison for his role in the death of 21-year-old Mansfield resident Ethan Walker. What we didn’t report is that the lyrics to his platinum single, “The Race,” played an integral role in reaching this verdict.

Yes, the lyrics are, indeed, incriminating — we would modestly wager that bars such as, “Shoot a fuckboy in his motherfucking face” and “We was plottin’, y’all was tryna get the pack in” were a godsend for prosecutors and a cause for chagrin among the defendant’s legal counsel. We’re no legal experts, but as Bob Dylan once sang, “You don’t need a weatherman to know which way the wind blows.”

The families of the victims have also filed a civil suit, claiming that they are entitled to the royalties that the rapper, born Taymor McIntyre, is accruing for the single. The reason for this, as self-evident as it should be, can be best surmised by what Walker’s father, Richard Walker, told McIntyre after the verdict: “Every lyric to ‘The Race’ is stained with my son’s blood. Every ‘free Tay-K’ T-shirt that was ever sold has my son’s blood on it.”

Now, here’s where things get tricky — McIntyre inked a $700,000 deal with label 88 Classic in 2017, and the company’s owner, Joshua White, put the money in a trust fund and has managed it ever since. According to NBC 5, more than $500,000 of that was spent on McIntyre’s legal fees, and per White, only $160,000 remained as of July 25.

So what outcome can we expect? What other legal entanglements do this civil suit and the circumstances surrounding it entail?

We reached out via phone to Denton-based intellectual property attorney Evan Stone (Stone & Vaughan, PLLC), who is not involved in this case.

"I will first note, this isn’t really much of an intellectual property case, because that doesn’t have much to do with the grounds (the plaintiff) sued under," Stone says. "They sued for wrongful death, and they also sued for survival action. That’s just going to go against (McIntyre) directly."

As Stone explained, "Wrongful death, that’s for the benefit of your loved ones. And the survival action – those damages are supposed to go to the estate, so (the victim’s) heirs and whatnot will benefit from that."

The family also sued under UFTA – the Uniform Fraudulent Transfer Act, as Stone points out. "That’s really where the interesting analysis comes down for this," he says. "Even though it’s called the (Uniform) Fraudulent Transfer Act, you don’t actually have to prove fraud, so that’s one thing that gives the plaintiffs a lot more leeway. If you show constructive fraud, that’s enough."

The real question, Stone says, is whether they can be deemed creditors. "That’s what this is about – you’ve got creditors you owe money to, and you try to transfer your assets in a way that the creditors can’t get to them, and you can avoid paying them off," Stone says. "(The victims’ families) weren’t creditors in the traditional sense, but it turns out there are two things that make this look really good for the plaintiffs: one is that you don’t have to owe the creditors at the time – if your asset transfer happens after the fact, that’s still valid. The second thing is, what makes them classified as creditors at all? Why does (McIntyre) or his estate or anybody owe these plaintiffs money? Well, it turns out that if you have a potential cause of action for a tort, such as wrongful death, that’s what makes you what’s called a tort creditor. Tort creditors do fall under the definition of creditor as defined by UFTA, and the case law that has subsequently interpreted UFTA.

"So that looks bad. (The plaintiffs) have a valid action for wrongful death. That’s easy.

"As soon as the death occurred, that is when their cause of action for wrongful death accrued, and that gave them potential to be classified as tort creditors, because if they obtain judgment for wrongful death, then they are the creditors by being the judgment holders that they can enforce against him. The fact that he is transferring his assets away so they can’t get to them should totally allow them to make use of this act to get the money back.

And, yeah, this is an interesting one. I’m totally curious to see what happens. When you first contacted me, I talked to a couple of other copyright lawyers that I know, and none of us could think of anything really specific to copyright that will be implicated in this case. I would say that this would be totally different if he had an existing record deal — especially if he wrote the song — before the murder.

"If the song was written beforehand, and the deal was already going to give sound recording rights to the label (that’s supposed to be theirs anyway,) he’s got his composition rights, so there’s already this big split, and I think it would be much harder for the plaintiffs to go after any money that the label is going to earn. One of these articles notes that the label might have encouraged him in this; they’re describing him as a gangster and stuff and claiming that he was encouraged to act that way.

"I don’t know if that bolsters their claims that much anyway — it would look good for a jury if admissible — but with the cause of wrongful death accrued before his transfer, I think they can get the money. My understanding of it is, you can use this statute to get those assets no matter how they’re transferred. That’s how I’m reading it. I don’t think the trust [fund] is going to make a huge difference in this situation.

"If the asset that is transferred is the intellectual property itself – and that’s what I would argue if I was the plaintiff – then forget all this revenue, we don’t even have to discuss the royalties at all. If I was the plaintiff, I would say, 'The asset that was of value is the song that he recorded. His intellectual property, and he fraudulently transferred that intellectual property after their cause of action accrued for wrongful death.'

"That’s what they need to go after – the actual rights to that song. If they get a hold of that, then the label doesn’t have a claim to anything anymore. They can’t worry about their sound recording rights, composition rights or anything. That’s the way I think it should be played by the plaintiffs; I can’t imagine them taking a different approach, because then they’ve got full control."