Alison A. Rollins, Berklee College of Music Valencia, December 13, 2012

This article has been written by Alison Rollins, a student at Berklee College of Music in Valencia, for the course “Business and Intellectual Property” in the Master in Global Entertainment and Music Business http://berkleevalencia.org/academic-programs/master-degrees/master-of-arts- in-global-entertainment-music-business

Copyrighting Silence: Intellectual Property Debates Over John Cage’s Music and Other Aleatoric Material

Copyright has been granted to people who produce a physical work since the

18th century in the US. The facilitation of creative work in general by artists

responds to and reflects the social, political, technical, and philosophical climate of

the society in which they live. The changes in this climate result in new problems

with copyright1. A current debate in copyright law is how to protect the work of

aleatoric music, or music where some element of the work is left up to chance. This

difficulty is because a large portion of the work the work lacks consistency, or in

some cases, what many people would call “physicality”. According to acoustician

Werner Meyer-Eppler, “aleatoric processes are such processes which have been

fixed in their outline but the details of which are left to chance”2.The composer may

have written down their methods for performing the piece, but the results could

1 Dorothy Keziah, “Copyright Registration for Aleatory and Indeterminate Musical Compositions”, 1969-1970. http://heinonline.org/HOL/LandingPage? collection=journals&handle=hein.journals/jocoso17&div=38&id=&page= 2 Syncrat Publishing, “Aleatoric Music”, 2005. http://www.syncrat.com/4k1

1 vary every time it is performed. In 1952, John Cage wrote a piece of music called

“4’33’”, which consists of four minutes and thirty-three seconds of the performers playing nothing. The score of the piece is copyrighted. Many people are astonished as to how such a piece could, in fact, be copyrighted, since the score does not contain any musical notes. Many people also question how the piece could be protected from plagiarism, as it has potentially different desired results every time it is performed.

This paper seeks to analyze definitions of silence within Cage’s piece and discourse about what circumstances it should be protected under copyright law, and also seeks to explore some issues with protecting chance-based art and performance under copyright law. There are three major circumstances an author of a musical work can exercise mechanical rights in copyright: through composition, physical score, or recording. When John Cage wrote “4’33””, his apparent intentions were for the performers to sit, not playing a single note, for three movements, and have the spontaneous sounds and reactions from the audience be perceived as the actual music in the piece. According to US copyright law, musical scores are defined as physical creative works. Therefore, in theory, the score itself should be able to exercise copyright (it also contains a copyright symbol with Cage’s name), but this one has created a lot of controversy because of the absence of actual music in the score.

Is It A Work? Cage’s Definition of Silence

In 2002, producer, arranger, and songwriter Mike Batt recorded a track called “One Minute Silence” on his classical/rock fusion album. He credited the track

2 to “Batt/Cage” but insisted that the track was credited to “Clint Cage” and not “John

Cage”. “I certainly wasn’t quoting his silence. I claim my silence is original silence,” he said3. “The album was released and went straight to number one in the UK

Classical charts and stayed there for three solid months. Some time during those delightful months I had a letter from the MCPS informing me that they would be upholding a claim from John Cage’s Publisher, -Peter’s Edition – [sic] for half of the royalties on ‘my’ silence”. The MCPS told him that their case was based on the use of

Cage’s name. However, if Batt in fact credited the song to “Clint Cage” and not “John

Cage”, how could the case be based on Cage’s name? British lawyer Duncan Lamont and many others, including Batt, have scoffed at John Cage’s publisher for even attempting to sue for copyright infringement over this piece. Most people in fact find this lawsuit pointless. It does raise questions about how to define Cage’s piece and whether or not it is a work. “The argument will be there is no work because there are no notes,” Lamont says4.

The structure of the score is very minimal, broken down into three movements with the single instruction of “tacet” on each movement. If someone else were to compose a score that also had instructions for the performers to be silent throughout the entire piece, could it be considered plagiarism? In order to form an argument for this, one has to look at the function of silence vs. sound according to

John Cage. “To Cage, silence had to be redefined if the concept [of the piece] was to

3 BBC News, “‘Silent Works’ Do Battle”, 2002. http://news.bbc.co.uk/2/hi/entertainment/2133426.stm

4 Mike Batt, “Postman Batt Breaks Silence on Silence”, 2010. Postman Batt. http://mikebatt.com/site/postmanbatt/postman-batt-breaks-silence-on-silence/

3 remain viable. He recognized that there was no objective dichotomy between sound and silence, but only between the intent of hearing and that of diverting one’s attention to sounds,”. He argued that silence when no sound is present does not exist and many of his compositions were affected by this philosophy. Cage stated that “music is continuous, it is only we who turn away,” 5.

So, if Cage redefined silence as that which we turn to in order to divert our attention from sound or music, he is reinforcing the argument that his intention was for the music to be the sounds made from the audience. The audience unintentionally becoming the performer in this situation illustrates his point of view that attempted silence does not equal the absence of sound. Therefore, the copyrightable physical work can be defined not as a musical score, but a sheet of instructions or written document, which can technically be copyrighted. The only original phenomenon about it, however, would be the title, the structure of the three movements, and the directions to stay silent during those three movements. Cage’s concept for a score with silence was not actually a completely original one: Allais’

“Funeral March” for the last rites of a deaf man consists of 24 bars of blank music manuscript. However, Cage’s definition of silence and concept of making an unassuming audience the performer was completely novel at the time.

What Should Be Protected In Aleatoric Works?

Still, there remains no protocol for the copyright of aleatoric musical works like “4’33””. Should the instructions for the facilitation of the work be the only aspect of the work that is copyrighted? Jeffrey L. Harrison brings up an interesting

5 Larry J. Solomon, “The Sounds of Silence”, 1998. http://solomonsmusic.net/4min33se.htm

4 point in his article, “Rationalizing the Allocative/Distributive Relationship in

Copyright”. “Does it make sense to protect contextual elements when the central element is not the subject of authorship?” In the case of Cage’s piece, I think most people would agree that Cage intended the “central element” or element of focus in the piece to be the sounds the audience is making. One could make the argument that written instructions on how to execute a piece of art are the contextual elements of the work. The random outcomes of that piece of art would be the central element, because they provide a focal point for the audience. However, in Cage’s piece, there are arguably two focal points- the silence of the performers and the sounds the audience is making, but none of these have definitive authors. Harrison defines the contextual elements of these types of works as part of the process. He likens the results of aleatoric works to data gathered during research, “the gatherer has taken on a researchlike project. But neither the research nor the captured data are the subject of authorship”.

Harrison claims it is impossible to copyright the process of any sort of aleatoric material where the result of the piece is like data gathered during research.

“For example, to say that John Cage's 4'33" is copyrightable is to say that Cage has a monopoly on sitting in front of a piano and listening to whatever sounds occur. Thus, while one might argue (an argument with which I disagree) that a recording, which is fixed, of the sounds occurring during a performance is copyrightable, one cannot take the next step of saying that the process of sitting quietly in order to collect any ambient sounds that may occur is copyrightable.”6

6 Jeffrey L. Harrison, “Rationalizing the Allocative/Distributive Relationship in Copyright”, 2004. http://scholarship.law.ufl.edu/

5 It is implied when he says this that he believes that sitting quietly and waiting for something to happen after having followed the rules of a process under any circumstances cannot be protected under any sort of copyright law.

But let’s look at a more complicated process. Stockhausen’s “Klavierstucke

XI”. The score has very specific directions much more complex than Cage’s “4’33””.

19 fragments are scattered around the page of the score and the instructions are to play the fragments randomly until one fragment is played three times. The piece then ends. There are only 1,024,937,361,666,644,598,071,114,328,769,317,982,974 different ways to play the piece, whereas Cage’s “4’33”” has an infinite number of ways. If one were to replicate one of these ways to play the piece and record it, how would you be able to tell that it is plagiarism? “In C” by Terry Riley is another piece with more detailed instructions on the score. “The members of the ensemble start together, playing along to an eighth note high C pulse. From there, each individual player chooses how many times they wish to repeat each fragment, moving ahead as they wish, while trying to stay within three fragments of the other players”7 These types of pieces have much more complex contextual elements, but who do you define as the author in the central element?

Gray Areas for Authorization of Derivative Works Based on Silence and

Aleatoric Materials

Another problem with protecting certain elements of aleatoric works is that

7 Nick Seaver, “Indeterminacy”, n.d. From Sound in the 20th Century. http://nickseaver.net/hssp/2009/indeterminacy.html

6 according to US copyright law, the copyright owner has the right to “prepare derivative works based upon copyrighted work”, and is allowed to authorize arrangements, motion picture adaptations, abridgments, translations, and sound recordings. However, the work “must be fixed in a tangible medium of expression that is now known or later developed”8. These statements create several rather philosophical debates in relation to Cage’s use of silence and other aleatoric works: what is considered a derivative work of this type of art? What is defined as “fixed in a tangible medium of expression”? In the case of “4’33””, what could be considered as a tangible medium of expression?

Returning to Cage’s definition of silence, one could argue that Cage defines silence as tangible. Cage does not define silence as the absence of sound, but a rather physical phenomenon that occurs when diverting our attention away from sound.

However, the phrase “a tangible medium of expression” is very subjective in that it does not express whether or not it requires consistency in the particular work. A work can be completely random and still be tangible. Many people also argue that silence is an intangible phenomenon, but the intention of Cage in this case was for silence to be tangible. In essence, with Cage’s definition of silence, one could argue that any space between notes in a piece could be considered a characteristic measured when arguing a case of plagiarism.

If circumstances like philosophical climate of society effect how copyright law is formed, how do we form a concrete law? As long as the definition of what we

8 Jeffrey and Todd Brabec, Music, Money, and Success. (Schirmer Trade Books: New York) 93- 95.

7 call music changes, we will have debates over how to protect it under copyright law.

The modern pioneering author will argue that his or her piece is a physical work of music and therefore copyrightable, but skeptics will always argue that it isn’t. Laws can change, but they largely depend on what is the socially accepted norm. John

Cage’s definition of silence in “4’33”” defies what is generally accepted as the definition, and it is also difficult to identify the author(s) of the piece. As our definitions of music change and grow more complex, so does the ability to protect it under copyright law.

8 Bibliography

Batt, Mike. (2010). Postman Batt Breaks Silence on Silence. Retrieved from http://mikebatt.com/site/postmanbatt/postman-batt-breaks-silence-on-silence/

BBC News. (2002). ‘Silent Works’ Do Battle. Retrieved from http://news.bbc.co.uk/2/hi/entertainment/2133426.stm

Brabec, Jeffrey and Todd. (2008). Music, Money, and Success. Schirmer Trade Books: New York.

Harrison, Jeffrey L. (2004). Rationalizing the Allocative/Distributive Relationship in Copyright. Retrieved from http://scholarship.law.ufl.edu/

Keziah, Dorothy. (1969-1970). Copyright Registration for Aleatory and Indeterminate Musical Compositions. Excerpt retrieved from http://heinonline.org/HOL/LandingPage? collection=journals&handle=hein.journals/jocoso17&div=38&id=&page=

Monahan, Mark. (2002). You Can’t Copyright Silence- There’s Too Much of It About. Retrieved from http://www.telegraph.co.uk/culture/music/rockandjazzmusic/3583315/You-cant- copyright-silence-theres-too-much-of-it-about.html#

Music, Noise, Silence, and Sound. (n.d.) Retrieved from http://www.deconstruction- in- music.com/proefschrift/300_john_cage/317_cage_and_noise/317b_music_noise_sile nce_sound/music_noise_silence_sound.htm

Pritchett, James. (2009). What Silence Taught Cage: The Story of 4’33”. Retrieved from http://www.rosewhitemusic.com/cage/texts/WhatSilenceTaughtCage.html

Seaver, Nick. (n.d.) “Indeterminacy”. From Sound in the 20th Century. Retrieved from http://nickseaver.net/hssp/2009/indeterminacy.html

Solomon, Larry J. (1998). The Sounds of Silence. Retrieved from http://solomonsmusic.net/4min33se.htm

Syncrat Publishing. (2005). Aleatoric Music. Retrieved from http://www.syncrat.com/4k1

United States Copyright Office. (n.d.) United States Copyright Office: A Brief Introduction and History. Retrieved from http://www.copyright.gov/circs/circ1a.html