June 29, 2002

2:57 PM

John Cage's representatives try to claim copyright on silence. [Ref: 4'33"]
Okay.
posted by Su (69 comments total)

Just when you thinking lawsuits can't get any weirder...
posted by Salmonberry at 3:01 PM on June 29, 2002

OMG. I needed a good cry!
posted by ( .)(. ) at 3:14 PM on June 29, 2002

Cool way to outline the whole absurdity of the current intellectual property system. Bwahahahhaah!
posted by beth at 3:18 PM on June 29, 2002

you thinking = you think

Sigh.
posted by Salmonberry at 3:19 PM on June 29, 2002

or: you = you're ;-)
posted by ( .)(. ) at 3:20 PM on June 29, 2002

Many people have observed that a copyright on a digital work is, essentially, a copyright on a particular integer. So, it was only a matter of time before someone claimed zero.
posted by electro at 3:27 PM on June 29, 2002

this leaves me speechless
posted by reality at 3:33 PM on June 29, 2002

I wonder if this quote is too long to be consider fair use? "


" (silence)
posted by MaddCutty at 3:34 PM on June 29, 2002

electro: Many people have observed that a copyright on a digital work is, essentially, a copyright on a particular integer. So, it was only a matter of time before someone claimed zero.

yes, but is 000000000 the same as 00000000000000000000?
posted by hob at 3:56 PM on June 29, 2002

Cool way to outline the whole absurdity of the current intellectual property system.

I'm interested in hearing suggestions for a better system. I agree that pieces of the IP system aren't great, but I still think it is working. I think most of our system, combined with a more author oriented Continental approach would be great.
posted by anathema at 4:10 PM on June 29, 2002

The silence on his group's album clearly sounds uncannily like 4'33", the silence composed by Cage in his prime.


According to who? Substantial similarity? That would be an interesting courtroom scene.

...which I credit Batt/Cage just for a laugh. But my silence is original silence, not a quotation from his silence.

Maybe the Cage people thought he used the sound recording itself to make his. If that were the case this would be an altogether different situation. I don't own a copy of Cage's piece any longer, does anyone remember if in fact the silence is "memorable" in any way?
posted by anathema at 4:23 PM on June 29, 2002

If music is defined as the specfic distribution of notes over a given period of time, then shouldn't no notes over a given period of time be as copyrightable as any other piece of music? I can't remember who it was (I think either Duke Ellington or Dizzy Gillespie) said music is the space between the notes. Anyone can throw notes together, only a musician can get the spacing right.
posted by dchase at 4:25 PM on June 29, 2002

Clearly John Cage's respresentatives are far beneath him.

Such utter hypocrisy! Think of his imaginary landscapes in which he greedily pilfers the broadcasts of radio stations with not only one, but twelve radios then spreads the wealth between 24 performers, all complicit!!!
posted by mblandi at 4:25 PM on June 29, 2002

Maybe the Cage people thought he used the sound recording itself to make his

It's a composition, not a recording, although recordings exist. Also, the length and three-part structure of the piece are crucial to its character. (At least, that's what Su's link says.) So I don't see how Batt's piece can be in any way infringing. Maybe Cage's people are kidding.
posted by lbergstr at 4:28 PM on June 29, 2002

mblandi-Such utter hypocrisy!

Is it really though? Copyright can only be claimed in the original part of the work, it would not be claimed in the original borrowed recordings. Surely there is sufficient originality in Cage's use of the broadcasts to constitute a copyrightable work. To me the story doesn't say that Cage's reps think that "borrowing" is bad. The Copyright Act leaves a lot of room for borrowing, even though different jurisdictions have come up with vastly differing results.
If, in fact, this guy's recording actually copied the Cage piece or if there is anything memorable and original about Cage's silence (I'm serious) then this whole thing is understandable.
posted by anathema at 4:40 PM on June 29, 2002

Will he also be sueing the writers of Ally McBeal for infringement of copyright on his name?
posted by riviera at 4:41 PM on June 29, 2002

I think the problem was that he credited Batt/Cage. Big no-no.

I dont see this as absurd as others do here. I dont think there is a copyright on the general concept of silence - that would be absurd. Here, however, silence is being presented as a piece of music, in a context similar to which cage presented his 4'33'. Of course you can argue that if the piece is a different length then it is only a quotation.

Think of Duchamp's ready-mades. Duchamp didnt invent household objects but he did find a new context for them. If you take a household shovel and then present it as Art (or as a criticism of Art) then you are quoting Duchamp.

Also, the length and three-part structure of the piece are crucial to its character

See, thats the kind of thing it would be up to a court to decide. :)
posted by vacapinta at 4:43 PM on June 29, 2002

lbergstr--It's a composition, not a recording, although recordings exist.

Actually, there would be a copyright in the composition, and a copyright on the individual sound recordings. Cage's estate or the record company would probably own the copyright on the recordings.
posted by anathema at 4:49 PM on June 29, 2002

ps. I think Cage would have loved this - at least the naturally ensuing debate about what his work "is"
posted by vacapinta at 4:50 PM on June 29, 2002

I just saw a blurb in the LA Tmes on this (sorry, no url) where the Cage people claim they had nothing to do with this. According to them, the organization that administers royalties in the UK sent Batt a pro-forma license agreement since he (Batt) credited Cage as the composer. I guess they didn't get the "joke".
posted by electro at 5:00 PM on June 29, 2002

Hey, I was kidding about Imaginary Landscapes, I'm sure he was protected and still would be. I knew I should have put sarcasm tags.

I think this is ludicrous. Cage was self-serving in developing his persona, rightfully so, but not that much. I'm sure Cage would have a good laugh about this. Cage can only hold copyright presenting the silence in his name. The piece says [mvt. one: tacit], [mvt. 2: tacit], [mvt. 3: tacit]. CD tracking convention shows that there would be separate tracks for each movement. So, if he really needs to defend himself that would be an out.

Crediting him as an influence would be fine in a piece of silence because he would be. No one needs permission to credit their influences. The book blurb system would be absolutely crippled if it were otherwise. Cage was the first to do this, but he holds no right over doing it on any scale other than possibly 4'33''. If I publish a book on silent meditation, I can't sue others for publishing books on silent meditation because of similar content.

Plus, the silence is not really silence, the atmoshere of the listener's surrounding is part of the performance.

That sounds a bit more believeable, Electro. I can't imagine anyone who likes Cage that would stand for something like that.
posted by mblandi at 5:02 PM on June 29, 2002

vacapinta--I dont think there is a copyright on the general concept of silence - that would be absurd.

Exactly. The Copyright Act explicitly states that the right does not extend to any ideas, only the fixed expression of ideas. In most of Europe the work doesn't even need to be fixed, but that gets more technical. The point is that protection is only granted to a specific expression.
posted by anathema at 5:04 PM on June 29, 2002

What about "You can make your own music" by Covenant?
It's about 4:35 of silence.

[Not a band out of my usual repertoire, but someone showed this to me once...]
posted by jozxyqk at 5:19 PM on June 29, 2002

dchase: If music is defined as the specfic distribution of notes over a given period of time, then shouldn't no notes over a given period of time be as copyrightable as any other piece of music?

You mean like that 500page book I haven't written? The "space between" the notes argument is an interesting bit of philosophy, and I actually agree with it, but it still also assumes the existence of notes, I would say.
If anything, I think anathema started on the right track here. As dumb as it sounds, if he really did sample a recording of the original 4'33", there might be a claim, but I doubt it's what he did.
posted by Su at 5:20 PM on June 29, 2002

John Cage has a book called Silence. It's very good. You should read it. It predicts, in the thirties, what Aphex Twin et al are today.
posted by Satapher at 5:22 PM on June 29, 2002

fyi, the first comment on music being the space between the notes, as far as i know, is debussy.
posted by elsar at 5:35 PM on June 29, 2002

This is a tricky one, and who knows exactly what Cage's reps have up their sleeves, but I think this can go two ways.

1. If Cage's people accuse Batt of sampling the recorded version of 4'33'' without permission. Batt can easily get around that one - if you analyze the two recorded versions and identify that they don't have identical tonal qualities, then then Batt's work clearly doesn't use a sample of Cage's recording. After all, Cage made 4'33" to prove a point:

(Quoting from the third link: "4'33" ....is often mistakenly referred to as Cage's "silent piece". He made it clear that he believed there is no such thing as silence, defined as a total absence of sound.")

When you contrast the two recordings of "silence," each could end up sounding quite different from the other.

2. But, if Cage's people accuse Batt of stealing the composition 4'33", I think he's going to have a rough time of it, seeing as the "composition" is just a set of instructions for performing the silent piece (with no actual restrictions, even regarding the duration of the performance, you can perform for 30 seconds, or a half hour and still call it 4'33").

Maybe this is a basis for going after the RIAA - all those "empty" tracks on all of those CDs, each a beautiful little copyright violation.

I think John would be amused by the fuss, but I also think he would contest the idea of copyrighting anything in the first place.

Alright, start punching your holes…
posted by lilboo at 5:44 PM on June 29, 2002

Su: "The original was on music paper, with staffs, and it was laid out in measures like the Music of Changes except there were no notes. But the time was there, notated exactly like the Music of Changes except that the tempo never changed, and there were no occurrences -- just blank measures, no rests -- and the time was easy to compute. The tempo was 60." (from the 4'33" link)

I't's not like the 500 page book you haven't written. It was composed and written and performed. Now, if you have a reading of the book you've never written, well, then, well, that would just be silly.
posted by dchase at 5:46 PM on June 29, 2002

fyi, the first comment on music being the space between the notes, as far as i know, is debussy.

he may have been the first to state it, but in eastern musical structures silence has always (thousands of years) played a more important role than the actual notes. it's not what you play, it's what you don't.
posted by afx114 at 5:46 PM on June 29, 2002

Anyone can throw notes together, only a musician can get the spacing right.

I think getting the order right also helps a little.
posted by warhol at 5:51 PM on June 29, 2002

lilboo--I think John would be amused by the fuss, but I also think he would contest the idea of copyrighting anything in the first place.

Not trying to pick a fight here, but I want some cites.

But, if Cage's people accuse Batt of stealing the composition 4'33", I think he's going to have a rough time of it...

I don't think so. This is close to a copyright concept called "merger," where the dichotomy between the idea and the expression of the ideas is practically indistinguishable. In true merger cases courts usually find no basis for copyright. The Feist case from the early 1990s provides the leading law here. In Feist a white pages phone directory was found uncopyrightable basically because there was no difference between the idea and the expression.
This is a little different. In cases like this courts sometimes find the work copyrightable but apply a doctrine known as "thin copyright." In effect, this gives the expression very narrow protection.
posted by anathema at 5:57 PM on June 29, 2002

In my opinion, the only claim that would work against Batt would be if he had sampled an actual recording of the Cage piece, or if he had somehow included a written copy of Cage's composition in the liner notes or something of that nature.
posted by anathema at 6:01 PM on June 29, 2002

lilboo--...if you analyze the two recorded versions and identify that they don't have identical tonal qualities, then then Batt's work clearly doesn't use a sample of Cage's recording.

In terms of sampling, yes. But not in terms of non-literal copying (copying without sampling). This would only be half the test. There is an intrinsic and an extrinsic part. What it comes down to is how a jury would hear it, because in the end it is a question of fact. You would get an expert witness on each side saying the opposite things, and two lawyers trying to convince a jury that the two pieces are or are not substantially similar. Fun, huh? In the end it would be up to the jury. How would you like to be on that panel?
posted by anathema at 6:10 PM on June 29, 2002

A letter from todays Independent (from LEXIS, sorry can't link):

Kenneth J Moss. Norwich

Sir: So John Cage's solicitors claim he has a copyright in meaningful silence. I'd have thought that the Quakers have got there first. What a good job that they are not given to litigation.

posted by anathema at 6:22 PM on June 29, 2002

Actually it was from June, 22.
posted by anathema at 6:24 PM on June 29, 2002

Beyond the issue of the upcoming Eldred v. Ashcroft case and copyright term extensions, I would be interested in how people think the IP system we have could be made better.
posted by anathema at 6:31 PM on June 29, 2002

I'll shut up now. ;)
posted by anathema at 6:33 PM on June 29, 2002

I'm suing anathema for planning to plagiarize the post I was about to make.
posted by GriffX at 6:41 PM on June 29, 2002

anathema, you are right, I don't know his exact position on copyright issues, I just tossed that in based on the fact that he derived a lot of is musical ideas from his study of Buddhism - consider:

nothing is accomplished by writing a piece of music
nothing is accomplished by hearing a piece of music
nothing is accomplished by playing a piece of music

(Cage 1961, Silence. Middletown, Connecticut.)

Is it possible that he may have felt that nothing is accomplished by owning a piece of music either?
posted by lilboo at 8:04 PM on June 29, 2002

John Cage will not win (even though he usually does in Ally McBeal) because of a precedent set by NASA. Took some digging through my archives, but in "JPL vs McHannan" it was proven that NASA hold the copyright on any tracks containing absolute silence (i.e. without white noise) as they made the first recording of absolute silence on the Apollo 8 mission.

http://www.nasa.gov/legal/silencecopyright.html
posted by wackybrit at 8:29 PM on June 29, 2002

That is whack!
posted by ( .)(. ) at 8:48 PM on June 29, 2002

.™
posted by KevinSkomsvold at 8:51 PM on June 29, 2002

Now we're in trouble.
posted by stavrosthewonderchicken at 8:54 PM on June 29, 2002

I vote for a moment of silence for John Cage, RIP. (let's say 2'05" worth).
posted by tomplus2 at 10:08 PM on June 29, 2002

stavrosthewonderchicken™

my lawyers will be in touch.
posted by eyeballkid at 10:26 PM on June 29, 2002

What if the second recording of silence was just a cover of the original Cage piece? Cover songs aren't infringement.
posted by mathowie at 10:53 PM on June 29, 2002

You still have to pay royalties, though.
And if you actually sample the original work at all(still in question), the rates go up, I believe.

dchase: I't's not like the 500 page book you haven't written. It was composed and written and performed. Now, if you have a reading of the book you've never written, well, then, well, that would just be silly.

Yeah, yeah. I know. That was one of those Click Submit-->D'oh! things. What I actually meant(I think. Or something) was a book with blank pages in it. I've seen one in the humor section of book stores. Something like "Everything Men Know about Women" or somesuch.
posted by Su at 12:18 AM on June 30, 2002

What I actually meant(I think. Or something) was a book with blank pages in it

I cant find the reference but I seem to remember this being done. I think it was Robbes-Grillet doing this in one of his books, perhaps not the whole book but intentionally leaving many blank pages in the center as an essential part of the work.
posted by vacapinta at 12:39 AM on June 30, 2002

More worrying is the fact that every piece of music contains an infinite number of copies of Cage's follow-up composition, 0'0". This could make his heirs quite wealthy.
posted by kindall at 2:00 AM on June 30, 2002

Cage's composition wasn't silence. A copyright on his work would be on a performance in which no intentional notes are actually performed, even though there are musicians present. It would also involve the use of a score, a stopwatch to time the piece, the use of separate movements, some way to indicate the change from one movement to another, and a listing of the piece in a printed program with an indication of the lengths of the movements. It's more theatre than anything else.

The following quote is taken from The Sounds of Silence: John Cage and 4'33" which describes the creation of 4'33", and it's significance. The focus of the work isn't upon what the performer does, but rather upon the unintentional sounds that happen during the work:

They (the audience) missed the point. There's no such thing as silence. What they thought was silence (in 4'33"), because they didn't know how to listen, was full of accidental sounds. You could hear the wind stirring outside during the first movement. During the second, raindrops began pattering the roof, and during the third the people themselves made all kinds of interesting sounds as they talked or walked out.

Every performance of 4'33" is different, and every listener will hear each performance in a different manner. Without the credit to John Cage by Mike Batt, his minute of silence is just silence. With the credit, however jokingly applied, he is tapping into the concept of a work to be performed in a similar manner to 4'33". If a case can be made for copyright infringement, it's because of the unauthorized use of Cage's name in the credits, which gives the work much more significance than if it had just been a minute of nothing. (If you're going to create your own "silence," you should be original.) Having said that, I don't see the point of a lawsuit, and I think that Batt's use of Cage's name should be taken in the manner in which it was probably intended to be used - as a tribute and possibly as an attempt to draw attention to John Cage's works.
posted by bragadocchio at 2:03 AM on June 30, 2002

Here's the LA Times URL (Calendar Live) where the Cage people in the US claims Batt only has received a standard license form, nothing more.
posted by ushuaia at 3:06 AM on June 30, 2002

mathowie: What if the second recording of silence was just a cover of the original Cage piece? Cover songs aren't infringement.

Right. Cover songs are covered by a compulsory license system laid out in the Copyright Act. You can't stop someone from covering a song that you own the copyright to. Period. They have to pay the statutory royalty though.

su: And if you actually sample the original work at all(still in question), the rates go up, I believe.


A copyright owner has an exclusive (notwithstanding fair use provisions) right when it comes to sampling. A copyright owner has the ultimate power to decide whether or not to allow a sample. And yes, the rate will be higher then a statutory rate, but not because it has to be, because the owner will want market value.

Remember, there is going to be a copyright on both the recording and on the composition. Depending on the contract between the copyright owner of the composition and the copyright owner of the recording, samples would need to be cleared by both. In the U.S. we recognize the economic aspect more than the "author" aspect as in Europe which is why it's important to make the distinction between "author" and "copyright owner." If you want permission to use a song, find out who owns the copyright, not who the author is.

There has been talk about introducing legislation that would revert unused master recordings back to the author after a period of time if the record company has not reissued the recording.
The U.S. is (slowly) harmonizing laws to be in compliance with the Berne Convention, TRIPS, and the WIPO Copyright Treaty. Although we still have a long way to go, we are starting to recognize moral rights and the rights authors. (see: )

bragadocchio: Without the credit to John Cage by Mike Batt, his minute of silence is just silence. With the credit, however jokingly applied, he is tapping into the concept of a work to be performed in a similar manner to 4'33".

Very well stated.
posted by anathema at 5:52 AM on June 30, 2002

should read:

see: Visual Artists Rights Act of 1990
posted by anathema at 6:01 AM on June 30, 2002

bragadocchio: Without the credit to John Cage by Mike Batt, his minute of silence is just silence. With the credit, however jokingly applied, he is tapping into the concept of a work to be performed in a similar manner to 4'33".

This actually sounds more like a Trademark/Unfair Competition argument than a copyright claim. The "right to attribution" is recognized for visual artists in the Visual Artists Rights Act (which is incorporated into the Copyright Act) but not authors of compositions.
posted by anathema at 6:08 AM on June 30, 2002

wackybrit: ...in "JPL vs McHannan" it was proven that NASA hold the copyright on any tracks containing absolute silence (i.e. without white noise) as they made the first recording of absolute silence on the Apollo 8 mission.

If you could provide a working link, or cite, it would be helpful. Neither Westlaw or LEXIS seem to have this case, which I find strange. Is this the correct name and spelling?

Either way the comment is a bit misleading. The Federal government is never considered an author under the Copyright Act. Therefore, publications etc. of the feds are never copyrighted. The Federal government can be assigned copyrights though and this happens not infrequently. This does not apply to state governments which can have copyright in it's works.
posted by anathema at 6:29 AM on June 30, 2002

.
posted by matteo at 6:51 AM on June 30, 2002

Sonic/Ciccone Youth 'covered' silence on the Whitey Album (track 2, (silence)). Their version was only 1m05s - a speeded up, 'beatbox version.'
posted by jonathanbell at 8:58 AM on June 30, 2002

great post.
posted by Ty Webb at 9:24 AM on June 30, 2002

FWIW, I'm not a total tightass. I really love Cage and just find this whole thing conceptually challenging. In 1991(?) I saw parts of a three day long series of performances of Cage's work at the New England Conservatory. They were fantastic, difficult and beautiful. Cage was in attendance for some of the shows, sleeping through much of it. Fitting.
posted by anathema at 5:02 PM on June 30, 2002

anathema, I agree with you. John Cage was definitely a fascinating figure, and this topic deserves a lot of thought and consideration. You asked about about some new ideas regarding IP issues above. I came across an Intellectual Properties Issues page on record label Negativeland's site yesterday that links to some interesting essays. In addition to articles by Lessig, Samuelson, and Barlow, they have links to sites like Musicians Against the Copyrighting of Samples. You might find something you haven't seen before at negativeland.
posted by bragadocchio at 7:08 PM on June 30, 2002

I wish I wish I had plated 4'33" for my HSC music exam.
The look on the examiners faces would of been priceless. And, for the hell of it, I could of followed it up with 60s.
posted by Neale at 12:15 AM on July 1, 2002

Actually, Cage's 4.33 in it's original version is NOT complete silence. You can hear someone making a cup of tea - Actually it's Frank Zappa making the tea...
posted by Spoon at 12:52 AM on July 1, 2002

Sorry - that's the "live" version on it's debut performance.
posted by Spoon at 12:54 AM on July 1, 2002

Don't be stupid - you're talking rubbish.
posted by Spoon at 2:25 AM on July 1, 2002

Am I - hold on.... Ah yes, sorry Spoon, my mistake.
posted by Spoon at 2:26 AM on July 1, 2002

Well - No harm done this time, just make sure you do your research more thoroughly next time. While actually factually wrong, your thing about Zappa was true in a way. Cage's 4.33 WAS performed by Zappa and he did make the tea.
posted by Spoon at 2:27 AM on July 1, 2002

I wonder what John Cage's take on the Wombles would be?
posted by Grangousier at 2:34 AM on July 1, 2002

You're both crazy.
posted by Spoon at 2:57 AM on July 1, 2002

bragadocchio:
Thanks for the links. Although I know of these resources already, it was good to see them again. I was more curious about the personal opinions of the folks here and not the somewhat predictable "information wants to be free" crowd.
posted by anathema at 2:59 AM on July 1, 2002