it ain’t just music, it’s a piece of art, it’s a capture of timeâ€¦.music chronicles time, and this is a chronicle of our timeâ€¦.Art is art, but at the same time generations’ tastes are changing- RZA (April 4, 2014).
By now Iâ€™m sure that youâ€™ve heard about “The Wu — Once Upon a Time in Shaolin,” the upcoming album from hip-hop supergroup Wu-Tang Clan. The 31-song album is gaining notoriety for its limited edition saleâ€”only one copy will be available, sold in an engraved silver-and-nickel box. â€śThe Wuâ€ť follows BeyoncĂ©â€™s surprise release visual album and Jay Zâ€™s Samsung-sponsored app-released album with its own high-profile, innovative marketing scheme and business modelâ€”further proof that #newrules are still trending.
In a recent Billboard interview, Wu-Tang member RZA discussed the concept for the forthcoming album as â€śa piece of artâ€¦put [ ]under the same definition as a work of art,â€ťâ€”think famous paintings or rare 710-year-old copies of the Magna Carta. This raises some interesting questions about â€śartâ€ť ownership. What rights are associated with the sale of a one-of-a-kind album? Will the purchaser of â€śThe Wuâ€ť also receive the right to commercially distribute or license the albumâ€™s content? We donâ€™t yet know the answers to these questions, but for now, we can muse about the possibilities.
The key to understanding this real world query lies in the copyright law distinctions between visual art and music. So first, is a collection of sound recordings (an album) legally considered to be â€śa work of artâ€ť (in the art gallery sense)? Similar to gallery art, â€śThe Wuâ€ť will be displayed to the public on a gallery tour, where it will be performed for paying attendees. The one of a kind album will be sold to the highest bidder and the purchaser will own the album like â€śbuy[ing] art from a gallery,â€ť becoming the ownerâ€™s â€śproperty.â€ť
Under U.S. Copyright law, a work of visual art is a painting, drawing, or sculpture existing in a single copy or limited edition (200 copies of less). Here, the â€śengraved silver-and-nickel boxâ€ť likely could be legally considered â€śa work of artâ€ť as a sculpture existing in limited edition. The written lyrics and/or sheet music could also fit within the definition of a drawing, depending on the method of display. Yet, it is unlikely that the sound recordings included on the â€śThe Wuâ€ť would be contemplated in the same category as gallery art because these works do not squarely fit within the definition of â€śvisual art.â€ť
If the album packaging and music compositions are considered works of visual art, in addition to the exclusive rights provided in Section 106, they would also be afforded special rights under the Visual Artists Rights Act (VARA), a 1990 amendment to the US Copyright Act. VARA grants visual artists certain moral rights in their creative works (paintings, drawings, prints, sculptures, and still photographic images). These rights include the right of attribution (right to claim authorship of a work) and the right of integrity (right to prevent the use of one’s name on any work that the author did not create and prevent use of oneâ€™s name in a manner that would prejudice the author’s honor or reputation).
Similar to the visual arts, music has its own set of special rules and exclusive rights in copyright law. However, if subject to an otherwise normal transaction, the sale of â€śThe Wuâ€ť is unlikely to convey little else than a rare copy of Wu-Tang Clanâ€™s latest masterpiece because of two important tenets of copyright law: the first sale doctrine, and the distinction between ownership of copyright and ownership of a material object.
The first sale doctrine provides that once a copyright owner parts with ownership of a particular copy embodying copyrighted works (for example, an album), the copyright ownerâ€™s rights are exhausted as to that particular copy. However, under Section 202 of the Copyright Act, ownership of a copyright is distinct from ownership of the material object in which the work is embodied (CD or downloaded music file). Copyright ownership remains with the copyright owner until the owner relinquishes their copyright interest in a signed, written document. Â Thus, transfer of ownership or sale of the material object does not itself convey any rights in the copyrighted work embodied in the object. In other words, an album sale does not confer copyright ownership of the lyrics and music, nor does it transfer permission to exploit any of the exclusive rights in the music (display, publicly perform, etc.).
Taken together, in the sale of a single album, the seller gives up his right to distribute a particular copy, but maintains copyright ownership of the recorded work; the buyer receives a single copy of content, which he or she may re-sell, but does not receive permission to exploit any other exclusive right.
Although RZA claims that he doesnâ€™t see a problem if somebody wants to resell â€śThe Wu,â€ť a savvy purchaser may still try to exploit his benevolence. Conscious of the fact that the Wu-Tang Clan has a lot of mouths to feed and bills to pay (the group consists of nine members, and is supported by a Â large cast of musicians, studio engineers, technicians, etc.), what this really boils down to is how Wu-Tang Clan can protect and maintain their revenue streams given this latest business model. The exclusive rights to reproduce, distribute, display, and publicly perform music by digital audio transmission, along with their corresponding licenses, are worth big money in the money industry. It is very likely that Wu-Tang will want to protect these revenue streams through standard music licensesâ€”clearly, the group intends to profit from their work, especially given the goal of selling to the highest bidder. Â As an alternative to the standard music industry agreements, they could consider utilizing a Creative Commons license, a set of licenses designed to give creators a simple, standardized way to grant some permissions to their creative works, while maintaining the ability to retain copyrightâ€”I would recommend the Attribution-NonCommercial-NoDerivs license, the most restrictive CC license that only allows others to download and share works with the appropriate attribution however, restricts commercial use of the licensed material.
There is something to be said for Wu-Tangâ€™s efforts to re-introduce the concept of music being accepted as high art, and putting the value back in the craft of creating, displaying and distributing music. It is quite clear that they are pushing the progress of art and music business simply by â€śchanging the idea and the venue [for] music.â€ť It will be interesting to observe the music industryâ€™s reaction to â€śThe Wu.â€ť How will consumers receive it? How will the industry quantify its success?