“ Is exclusivity versus mass replication really the 50 million dollar difference between a microphone and a paintbrush? Is contemporary art overvalued in an exclusive market, or are musicians undervalued in a profoundly saturated market? ”
-Cilvaringz & The RZA, EZCLZIV SCLUZAY
As far as cultural products go, music has seen relatively few changes in how it is consumed. The advent of recording technology and the development of commercial radio transformed music’s consumption, but while other technological advances have improved our ability to consume music—by making it more transportable, easier to store, and enabling remote access—the basic model of consumption has remained fairly static: buy a recording, or listen to it through a radio station. This model of consumption has been enshrined by copyright law, which provides a host of rights in sound recordings. For musicians, the path to success is a straightforward one of recording one’s music and finding a channel for distribution.
Wu-Tang Clan wants to break that model to pieces.
“ The music will only ever have one incarnation.
It will not be made available digitally or in any other existing mass format. ”
Prior to the sale, Wu-Tang Clan plans on taking the album on tour, exhibiting it at museums, galleries, and potentially music festivals. Patrons will be able to hear the album, but only after being heavily screened for recording devices and paying an admissions fee. Wu-Tang Clan is treating their album as a work of contemporary art, with member Robert “The RZA” Diggs comparing the item to “the scepter of an Egyptian king.”
For the members of Wu-Tang Clan, the traditional model is failing to value music as high art. To The RZA, works produced by our era’s well-known musicians—Kanye West, Jay-Z, and the Clan itself—are deserving of the same sort of stature granted to the works of visual art that adorn the walls of the world’s museums. When these works are produced and distributed en masse, their cultural value is diminished. The solution, then, is to treat music the same way we treat visual art: to clothe it in a veil of exclusivity.
Wu-Tang’s announcement calls into question whether the current model of music consumption—and, by some extension, our copyright law—is in some ways failing to respond to the needs of artists. Historically, this concern has been ancillary to intellectual property’s primary objectives: the promotion of the “progress of science and the useful arts.” Of course, the artist is a relevant component of this objective. Without incentives to create, creation will not occur, and progress will not be promoted. The framework of rights established by existing copyright law creates strong economic incentives, but might do so at the cost of rights artists care about more.
Though this issue may be important, only a more holistic analysis of intellectual property systems can say whether the failure to address this interest is to the detriment of the system’s goals. A single artist plays only a small role in intellectual property’s overarching purposes. To promote progress might require the subordination of an artist’s right should the right contradict this goal. What that “right” actually is, in Wu-Tang’s case, is extremely unclear. The RZA’s argument is that mass distribution devalues music, but neither The RZA, nor other members of the Wu-Tang Clan, nor Tarik “Cilvaringz” Azzougarh, the album’s producer, can explain the “devaluation” in concrete terms. The argument set forth by the Clan depends on an assumption that there is value in exclusivity. Yet throughout copyright’s history, the opposite has often been suggested: that there is great value in the public domain.
Overhauling copyright to better respond to Wu-Tang’s needs is a solution that would create a host of problems. While The RZA and other Clan members clearly find the current model to have shortcomings, they are extremely unrepresentative of musicians as a whole in a few notable ways. Most obviously, the members of Wu-Tang Clan are already extremely successful musicians; they may be able to “afford” a model based on exclusivity more easily than other musicians. Even among the famous, their views are unconventional. And, if their stunt proves successful, it may demonstrate that gaps left by intellectual property law are fillable. This may be to the system’s advantage, particularly if these “gaps” do not apply uniformly across all artists.
The RZA has admitted that this stunt may be a total failure. If the album is a success, maybe there is a future in “private music.” If the album fails, maybe Wu-Tang Clan will acknowledge that art does not need to be private to have cultural significance.
Eric Holmes is a J.D. candidate, ’15, at the NYU School of Law.