A Better Silence - John Cage and copyright
Everybody knows that John Cage, the avant-garde composer, invented silence in 1952, with his famous piece 4'33", which was premiered on 29 August of that year.
4'33" consists of a musician (or musicians), not playing their instruments for four minutes and 33 seconds, and was intended as an ambient experience rather than four minutes and 33 seconds of silence - the music is the shuffling and coughing of the musician(s) and the audience and the background hum of the performance venue - the instructions are about the conducting of silence and the demeanor of the musician(s). "This is a deeply personal music," says Peter Gutmann, "which each witness creates to his/her own reactions to life. Concerts and records standardize our responses, but no two people will ever hear 4'33" the same way. It's the ultimate sing-along: the audience (and the world) becomes the performer."
But there is a copyright on the score - or rather, the several versions of the score that Cage produced over the years - because, of course, silence is never absolute nor complete, and every period of silence has different qualities of background noise. Like music, a song or instrumental piece, each silence is played differently at each performance and these variations are hard to quantify. Like software, the sound of silence is better when subjected to version control, and John Cage, or rather his music publishers, Peters Edition, now own the copyright to silence - or, at least, four minutes and 33 seconds of silence.
None of this would have mattered, but in 2002 a group known as The Planets (consisting of eight musicians, though there were then said to be nine planets - Pluto has since fallen out of planetary orbit and is now an arbitrary rock floating in space), led by Mike Batt, whose claims to fame as a composer include the music of The Wombles, and the song Bright Eyes from the film Watership Down, topped the UK classical charts with an album called Classical Graffiti, which included a track called A One Minute Silence. The track, which is silent, is credited to Batt/Cage, which Mike Batt admitted was intended as a "tongue-in-cheek dig at the John Cage piece", although he later claimed that the credits referred to his previously unknown pseudonymous alter ego, Clint Cage.
This didn't escape the notice of Peters Edition who, acting on behalf of the Cage Estate, contacted Batt and claimed infringement of copyright. Peters Edition asked for a quarter of the royalties, presumably on the grounds that the duration of A One Minute Silence approximates to a quarter of four minutes and 33 seconds of silence.
The case of Peters Edition was supported by the Mechanical Copyright Protection Society who demanded that Batt cough up for the use of Cage's original work. Batt, however, claimed that his piece was qualitatively different because the recorded silence consists of the absence of noise, rather than the presence of ambient silence.
"I certainly wasn't quoting his silence. I claim my silence is original silence... Our's is better silence", he said, "it's digital. Their's is only analogue."
The scores were also different. According to Steven Poole, writing in The Guardian, Cage's score consisted "merely of vertical ruled lines marked with timings", whereas Batt's piece "is written in the key of G major (or E minor), and is more structurally complex, finishing with a flourish of metre-switching from five-eight to three-eight four-four. These are obviously quite different pieces of music", a distinction that would have amused Cage himself.
The Planets' album was a bestseller, which may have influenced the decision of Peters Edition and the Cage estate. As Batt pointed out: "This is not an angry dispute - it's a gentlemanly dispute. But there is money involved."
The obvious conclusion to be drawn was that the motive for the case may have been publicity, with some advantage to all parties. But this appears not to have been the case because the bizarre legal wrangle ended with a six-figure out-of-court settlement.
Nicholas Riddle, the managing director of Peters Edition, said on the steps of the English High Court, "We had been prepared to make our point more strongly on behalf of Mr Cage's estate, because we do feel that the concept of a silent piece - particularly as it was credited by Mr Batt as being co-written by 'Cage' - is a valuable artistic concept in which there is a copyright. We are nevertheless very pleased to have reached agreement with Mr Batt."
Batt afterwards released A One Minute of Silence as one half of a double A-sided single and asserted, as evidence of the superiority of his piece: "I have been able to say in one minute what Cage could only say in four minutes and 33 seconds."
Cage was a great innovator and conveyor of ideas, and was blessed with a broad sense of humor, so it is hard to believe that he would have taken his posthumous trip to the courts as seriously as his publishers. But whatever the rights and wrongs of the case, whether the concept or experience of silence is original or definitive, (whether silence, or the total absence of sound, can be said to exist at all, except as an abstraction, is a moot point), what it illustrates is that copyright is an imperfect mechanism for protecting creative work, especially music, which is seldom unique and often derivative, even when it doesn't mean to be.
A brief history of silence
Cage's re-invention of silence is said to have been inspired by his experience of Zen and the work of his friend, the painter, Robert Rauschenberg, who made a series of white, apparently blank, canvases, with the idea that the surface of the paintings changed according to the qualities of the light around them. Cage's idea was to re-interpret Rauschenberg's concept of the reflective qualities of a white canvas in the context of music. But although no-one questions Cage's originality as an artist and composer, nor that he unwrote many of the rules that became the guide for avant-garde music, it can't be said that he either exclusively invented the idea of silence as a musical form, nor that he was the first to do so.
As far back as 1919, Erwin Schulhoff, a budding Dadaist or expressionist, depending on who you believe, pianist and composer, wrote a series of jazz-influenced pieces dedicated to the German left-wing artist and cartoonist George Grosz. No.3 in this series was a piece called 'In Futurum', which contained "nothing but pauses and agogic symbols", a silent piece with a complex score including time changes and silent chordal mayhem, much like that of Cage.
Even further back in the mists of time, Alphonse Allais, the French humourist and inspiration to Apollinaire, Jarre and others, wrote a silent piece called "a funeral march for an illustrious deaf man", with a blank music score that was first exhibited in 1884 at one of the "Les Arts Incoherent" shows organised by the writer, Jules Levy, and published in Allais' own 'Album primo-avrilesque.' The album also contained a series of seven monochrome paintings, including a white canvas that preceded Rauschenburg's innovation by 70 odd years, which he called 'Anaemic girls on their way to their first Communion in a snowstorm', and a black canvas, which he had copied from an earlier work by the poet Paul Bilhaud, called 'Negroes Fighting in a Cellar at Night'.
One of the "Incoherent' shows also included an altered image of the Mona Lisa, four decades before Marcel Duchamp became notorious for doing the same thing. Duchamp called his piece L.H.O.O.Q. after the French phrase "Elle a chaud au cul," which translates as "she's hot in the ass".
Batt was the first to pay up on replicating Cage's idea, but tracks on albums that are silent have happened on many occasions after Cage, and before Batt came up with the idea.
For instance, Ciccone Youth, a band that featured Sonic Youth with guests, released a set of recordings called the Whitey Album that included a silent track called (silence) that was 63 seconds, or one minute and three seconds, long. For those who haven't experienced the novel sound of (silence), this track, and at least 6 other silent tracks from the work of other artists, have been available for download from Apple's iTunes at 99c apiece, protected from exploitation by members of the public by Apple's Digital Rights Management technology.
Further back, in the late 60s, John Lennon and Yoko Ono, who were close friends of Cage, included an uncredited track called 'Two Minutes Silence' on 'Life with the Lions - Unfinished Music Part 2,' without attribution to Cage, and without incurring litigation from the Cage estate or his publishers.
But silence, or the right to reproduce silence, is copyrighted under current law until the middle of this century, and the copyright has been verified in court as the property of the Cage estate, although Cage himself died in 1992.
In an autobiographical piece called 'From Where'm'Now' Cage related that "In the late forties I found out by experiment (I went into the anechoic chamber at Harvard University) that silence is not acoustic. It is a change of mind, a turning around. I devoted my music to it. My work became an exploration of non-intention. To carry it out faithfully I have developed a complicated composing means using I Ching chance operations, making my responsibility that of asking questions instead of making choices."
Chance composition took many forms. Imaginary Landscape No. 4, for instance, is written for twelve radios, and twenty-four players. The score includes precise instructions for each of the players, but the sound reproduced depended on what was being aired on the radio at the time of the performance, which begs the question - does an illicit performance of Imaginary Landscape No. 4 infringe the copyright of Cage or those who own the radio broadcasts that are being played at random as part of the performance? The devil is in the detail, and the small print is in the score. As John Cage himself once wrote:
I have nothing to say
and I am saying it
and that is poetry
as I needed it
For more thoughts on silence go to this place