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-artsin-global-entertainment-music-business
Copyrighting Silence: Intellectual Property Debates Over John
Cage’s Music and Other Aleatoric Material
Alison A. Rollins, Berklee College of Music Valencia, December 13, 2012
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
Dorothy Keziah, “Copyright Registration for Aleatory and Indeterminate Musical
Compositions”, 1969-1970.
http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/jocoso
17&div=38&id=&page=
2 Syncrat Publishing, “Aleatoric Music”, 2005. http://www.syncrat.com/4k1
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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
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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
BBC News, “‘Silent Works’ Do Battle”, 2002.
http://news.bbc.co.uk/2/hi/entertainment/2133426.stm
3
Mike Batt, “Postman Batt Breaks Silence on Silence”, 2010. Postman Batt.
http://mikebatt.com/site/postmanbatt/postman-batt-breaks-silence-on-silence/
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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
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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
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copyrightable.”6
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
Jeffrey L. Harrison, “Rationalizing the Allocative/Distributive Relationship in Copyright”,
2004. http://scholarship.law.ufl.edu/
6
Nick Seaver, “Indeterminacy”, n.d. From Sound in the 20th Century.
http://nickseaver.net/hssp/2009/indeterminacy.html
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Aleatoric Materials
Another problem with protecting certain elements of aleatoric works is that
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.
Jeffrey and Todd Brabec, Music, Money, and Success. (Schirmer Trade Books: New York) 9395.
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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
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.
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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-cantcopyright-silence-theres-too-much-of-it-about.html#
Music, Noise, Silence, and Sound. (n.d.) Retrieved from http://www.deconstructioninmusic.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
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United States Copyright Office. (n.d.) United States Copyright Office: A Brief
Introduction and History. Retrieved from
http://www.copyright.gov/circs/circ1a.html
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