Bespoke Recordings: The Limits of Intellectual Property and the Revival of the Music Industry

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The recording industry and Hollywood in general have responded to declining music sales by attempting to expand excessively intellectual property protection, domestically through the proposed, yet indefinitely postponed, Stop Online Piracy Act and the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act, and internationally through the Anti-Counterfeiting Trade Agreement and the intellectual property provisions of the Trans-Pacific Partnership Agreement. Such legislation restricts free speech, reduces innovation, and weakens due process rights on the internet. This paper proposes an alternative revenue-generating strategy—bespoke musical recordings that would be privately auctioned rather than publicly released. For example, a recording of Anne-Sophie Mutter playing a piece she has never publicly performed would be sold to a music lover or an investment fund as a one-of-a-kind recording, as unique as an Artemisia Gentileschi painting or a Camille Claudel sculpture. Besides providing the recording industry with additional revenue, bespoke recordings would generate more income for musicians, augment funds for music outreach programs and other music nonprofits, and increase the chances of discovering new musical talent. Similarly to many new markets, it would take time for such recordings to generate substantial revenue. To aid the development of a fluid market for bespoke recordings, numerous new legal and institutional arrangements would be established, including a bespoke recording registry, tailored contractual agreements, anti-counterfeit protections, and a secure bespoke recording storage facility. By facilitating an extreme form of ownership for isolated recordings, we might prevent the overall expansion of the intellectual property regime.

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Journal of Law, Technology & Policy