A New York federal judge recently allowed a plaintiff to assert that Once Upon a Time in Shaolin, that one-of-a-kind, highly restricted Wu-Tang album, could be a trade secret.[1]

Historically, courts have rejected trade secret claims over unreleased musical works (e.g. unreleased recordings of Prince or Janet Jackson) on the theory that music is essentially meant to be heard, and costless secrecy is just a temporary business tactic until commercial release.[2] In other words, if the secret was going to be released soon anyway, it is functionally just a copyright claim in waiting.

While this ruling is unusual, so too is the background of Shaolin: to start, the album is not intended for release until October 8, 2103. Judge Chen emphasized both the distant public release date and the fact that Wu-Tang produced only a single copy of the album to distinguish Shaolin as “qualitatively different” from other unreleased music in previous jurisprudence. Here, secrecy was not merely a cradle before release. Instead, secrecy was baked into the album’s entire value. The album was designed to be secret and exclusive for an extended period of time; a significant part of its worth is derived from not being published. Indeed, Wu-Tang intended the album to be secret in part as a protest of the devaluation of musical expression in the digital age.[3] Thus, the court reasoned, it is proper to treat it under trade secret doctrine because it meets the classic trade secret elements: independent economic value from secrecy and reasonable efforts to maintain secrecy.

To be clear, the court didn’t yet affirm it is a trade secret, but it let the claim survive motion practice.

Although a bit avant garde, the position is relatively defensible.

• Trade secret protection and copyright protection are not mutually exclusive.
  “If you allow trade secret for music, won’t that conflict with copyright doctrine or preempt it?” Not necessarily. Most courts hold that trade secret claims demand an additional showing (proof of a confidential relationship, misappropriation, breach of duty, etc.) beyond copyright claims such that federal copyright law often does not preempt a trade secret claim.[4] The presence of a valid copyright does not necessarily bar trade secret protection if the other elements are met. Indeed, when it comes to software, another work of authorship traditionally protected by copyright law, trade secrets have become the dominant form of protection, so the analogy is apt. If code can be secret, why can’t a musical work under like conditions of extreme secrecy?
• Different works often require different protection strategies.
  Just as software can be protected by both trade secret and, later, by copyright (or patent in narrow cases), chemical formulae often sit at this intersection too. Sometimes protected via trade secret (if kept secret) or via patent (if publicly disclosed and meeting patentability). The choice depends on business strategy.
• Secrecy as part of the value proposition.
  The ruling underscores that trade secret doctrine isn’t just about locking down stuff temporarily. If the very mystique or exclusivity of non-disclosure is part of the economic value (as with Shaolin), trade secret law may be a suitable tool. Thus, if the owner of the work limits access to a music piece and charges for that exclusivity, the secrecy is arguably part of its commercial play.
• Enforcement path for theft before release.
  Without trade secret, you’d have to rely entirely on contract (NDA) or wait until publication to enforce copyright. Moreover, if someone flips your album before you’re ready to release, you might be stuck. Trade secret gives you a path to act before public release.

There will be pushback to this decision, and additional case law will be needed to determine the implications of this ruling. We readily acknowledge the following issues are at play; in fact, this article was borne out of an intraoffice debate about these issues:

• Slippery slope: If music works become trade secrets, will every unreleased song or demo be litigated as a trade secret? Will labels clutter the docket with trade secret claims?
• Public disclosure tension: One of the traditional trade secret rules is that once disclosed publicly, secrecy is lost. But music is usually meant for performance, samples, previews — how do you calibrate what constitutes the “secret” portion? Will this decision mark the beginning of a shift in what society considers valuable in music as an art form?
• Overlap with copyright doctrine: Some fear duplication of copyright ideas (e.g. prior recordings) under a trade secret guise. Critics will argue: enforce via copyright, not trade secret, lest doctrines conflict. Afterall, the purpose of copyright law is to reward creativity in exchange for eventually pushing the work into the public domain. 
• Judicial skepticism and precedent: Many courts have dismissed trade secret claims about music under the “waiting for release” rationale. The Wu-Tang approach is an outlier, and is specific to the facts at hand – notably, there appears to be no actual plan to release the album in the near future, which is consistent with Wu-Tang’s original plan to keep it a secret for the better part of a century.

Much like Wu-Tang’s approach to music, this ruling is bold and challenges the status quo. This decision marks a distinct departure from the typical approach to the protection of music as intellectual property and bends the contours of traditional trade secret doctrine, but it makes sense if you accept that independent economic value can derive from not releasing a work. Just as software thrives behind closed doors until launch and chemical formulas may live in the shadows until monetization, musical works, in specially restricted contexts, shouldn’t be disqualified from trade secret treatment as a matter of principle.

Yes, the doctrine needs guardrails and we can expect a long line of subsequent jurisprudence to flesh out those details. But as long as plaintiffs show real secrecy, real independent economic value from that secrecy, and real misappropriation, treating a musical work as a trade secret in some instances is a defensible and forward-looking intellectual property evolution. It also has the potential to extend the effective life of protection indefinitely as long as the work remains a secret.

[1] PLEASRDAO, an exempted foundation company, Plaintiff, v. MARTIN SHKRELI, Defendant., No. 24-CV-4126 (PKC) (MMH), 2025 WL 2733345 (E.D.N.Y. Sept. 25, 2025)

[2] Paisley Park Enterprises, Inc. v. Boxill, 253 F. Supp. 3d 1037, 1046 (D. Minnesota 2017)(noting that Plaintiffs failed to demonstrate that the disputed recordings were a trade secret because the “only economic value of the recordings derives from the right to sell the recordings to the public” and while the timing of a sale might affect the value of the recordings, “Plaintiffs cannot realize any independent economic value by keeping the contents of the recordings secret”); Anderson v. Jackson, 2005 WL 8166024, at *6 (C.D. Cal. Aug. 8, 2005)(noting that the “[p]laintiffs fail[ed] to identify anything in or about the song that derived ‘independent economic value’ by virtue of its secrecy”).

[3] Pleasrdao, 2025 WL 2733345 at *2.

[4] See, e.g., Stromback v. New Line Cinema, 384 F.3d 283, 303 (6th Cir. 2004)(requirement of proof of a confidential relationship provided the extra element required for a trade secret claim to survive federal preemption under copyright law; Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693, 717 (2d Cir.1992)(“breach of duty is the gravamen of such trade secret claims, and supplies the “extra element” that qualitatively distinguishes such trade secret causes of action from claims for copyright infringement that are based solely upon copying”); Dun & Bradstreet Software Servs., Inc. v. Grace Consulting, Inc., 307 F.3d 197, 218 (3d Cir.2002) (“if [Plaintiff’s] misappropriation of trade secrets claim was based on such breach of duty of trust and confidentiality, it would survive preemption in this case.”); Ez–Tixz, Inc. v. Hit–Tix, Inc., 919 F.Supp. 728, 737–38 (S.D.N.Y.1996) (holding that because “plaintiff’s claim for trade secret misappropriation require[d] proof of a breach of confidence, it [was] not preempted by federal law”).