【Research Center for the Legal System of Intellectual Property】

Activities

Soundless music! Is it a copyrightable work of music?

RA Akiko Ogawa

It is spring, the season of starting something new. As April column, I would like to think about a piece of music called "4'33""by John Cage to face the beginning of a new year with a brand-new heart which is as white as snow.

It was said that John Cage heard two sounds in the anechoic chamber at Harvard University when he visited there in 1952. High-pitched sounds are the sounds of nervous system and low-pitched sounds are the sounds of blood circulation. In addition, a "painting" supports his conviction. It is "White Painting" by Rauschenberg (anyone who has interests can see this painting at Guggenheim Museum（http://www.guggenheim.org/exhibitions/singular_forms/highlights_1a.html）. Then, "4'33"" has been made.

This music surprised the audience very much at the first performance. Although it was music for piano, a pianist did nothing but remain seated silently for four minutes and thirty-three seconds except for lifting and closing the piano lid. (The score indicated the lifting and closing of the piano lid and the number of seconds to do so.) Yes, a pianist does not play the piano.

In the way Cage was inspired by the white painting drawn on a blank canvas by Rauschenberg, a pianist play nothing in the concert hall but unintentional sounds around him decide the music.

In England, The Planets led by the composer, Mike Batt, included a one-minute (silent) "music" as the thirteenth track in their album, and put "Batt/Cage" for the music in the album's credits. Cage's music agent in England launched the suit against Batt in February 2002( ), claiming it infringed the copyright of Cage's "4'33"".

It is a very interesting theme to see the scope of protecting Cage's copyright. In the E.I.P.R. of December 2005, Cheng Lim Saw examined silent works in British Law( ). The interesting point is that the examination has started not from the viewpoint of seeing whether it infringed the copyright of "4'33"" or not, but from the viewpoint of seeing which category the copyright of "4'33" " falls under, such as music, drama, or literature.

In British Copyright Law, there is no description about the scope of music. In the development process from classical music to contemporary music, there have been various cases such as atonal music, aleatoric music, and even silent music like "4'33"". So it is necessary to have a discussion in the future about how the "music" that Copyright Law means include those music. In fact, Cage himself insisted that there was no such thing as "silence" in the world. Therefore, it cannot be said he made the "music" which was "silent". However, if it is judged objectively by seeing how the audience hear it, it will be denied under existing circumstances that it can be legally considered as music. How about the drama? In British cases, it is said that theatrical production is what includes actions and is played in front of the audience. When "4'33"" was played at the first time, a pianist was asked to lift and close the piano lid. However, it would be difficult to say it is the copyright of a drama with such a minimum act.

Then, what about the possibility of the copyright of literary works? If it is defined as the work which "gives information and/or direction and amuses the readers in the shape of literary works" from the precedents, the work of "4'33"" which gives attention in details would be included as one of the literary works. According to Saw's conclusion, the most appropriate view is to say it would be literary work rather than music or drama. The infringement suit stated above ended in an out of court settlement in September 2002. However, it was reported that Batt made a six-digit donation (British pounds) to John Cage Trust( ). Though the column started with snow-white heart, it has become coloured at the end, the colour of greenback! It is spring, the season of fresh leaves, which colour is green.

1. http://news.bbc.co.uk/1/hi/entertainment/music/2133426.stm
2. Chang Lim Saw, Protecting the Sound of Silence in 4'33": A Timely Revisit of Baisc Principles in Copyright Law, E.I.P.R. Issue 12 (2005)
3. http://news.bbc.co.uk/1/hi/entertainment/music/2276621.stm