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Published online by Cambridge University Press: 02 January 2018
Framed within the broader context of law's engagement with modernism, this paper offers an argument in defence of copyright protection of John Cage's 4′33″ as a ‘musical work’ under the Copyright, Designs and Patents Act 1988. This argument approaches the issues involved analytically and contextually. In doing so, it draws on both legal and non-legal sources. Throughout the paper, the underlying question remains as to whether Cage's 4′33″ really is – or is not – a challenge to law (and to music).
Tom Sergeant, in his introduction to the BBC's broadcast of the BBC Symphony Orchestra, at the Royal Festival Hall, London on 16 January 2004.
2. Per Jacob LJ, Lucasfilm Ltd v Ainsworth [2010] Ch 503 para 54.
3. Indeed, Gann suggests that it may well have been in Cage's mind since his youth as indicated by his comments about a ‘great pause’. Gann, K No Such Thing as Silence (New Haven, CT: Yale University Press, 2010) pp 161–162 and 39–40.Google Scholar See also Shultis, C ‘“Silencing the sounded self”: John Cage and the intentionality of nonintention’ (1995) 79 Musical Quarterly 312.CrossRefGoogle Scholar
4. The programme included other works by Cage as well as those of Christian Wolff, Morton Feldman, Earle Brown, Pierre Boulez and Henry Cowell. (Since Cowell''s work was listed to follow 4′33″ there is some doubt whether, in the wake of the audience's reception of the latter piece, if it was actually performed that night.) Gann, above n 3, pp 4–8.
5. Quoted in Solomon LJ ‘The sounds of silence: John Cage and 4′33″’ (1998/2002), available at http://solomonsmusic.net/4min33se.htm
6. Ibid.
7. The original score was lost some point after Tudor's first performance. Ibid.
8. Saw, CL ‘Protecting the sound of silence in 4′33″: a timely revisit of basic principles in copyright law’ (2005) 12 EIPR 467.Google Scholar For a detailed account of the history and nature of the scores, see Gann (above n 3) and Solomon (above n 5).
9. Saw, above n 8.
10. Sawkins v Hyperion Records Ltd [2005] 1 WLR 3281.
11. Kenrick & Co v Lawrence & Co [1890] 9 QBD 25.
12. Saw, above n 8, at 473 (emphasis added).
13. Ibid.
14. See Gann, above n 3.
15. Ibid, p 16.
16. Painer v Standard Verlags GmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, Spiegel-Verlag Rudolf Augstein GmbH & Co KG, Verlag M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co KG [2012] ECDR 6.
17. See ibid, paras 88, 89 and 92. That the notions the ‘author's intellectual creative intention’ and ‘personal touch’ can be applied to the subject matter of music is hardly in doubt considering that they emerged first in the somewhat more complex cases of databases and applied in Painer to that of photographs. In the later case of Football Dataco, the same court eschewed the presence of ‘labour and skill’ (and one can imply also ‘time’ and/or ‘judgment’ as ‘justify[ing] the protection of copyright … if the labour and skill did not express any originality in the selection or arrangement of that data’). Football Dataco Ltd and others v Yahoo! UK Ltd and others [2012] 2 CMLR 24, para 42.
18. On this point, it is important to recall that one of the points Cage was attempting to communicate in 4′33″ was that there was no such thing as silence, whether in nature or anywhere else.
19. Painer, above n 16, paras 91 and 92.
20. This point takes on an increasing significance in the wake of both the Infopaq (Infopaq International A/S v Danske Dagblades Forening (C-5/08) [2010] FSR 20) and Meltwater (Newspaper Licensing Agency Ltd v Meltwater Holding BV [2012] RPC 1) cases in which the place of the ‘author's creative intention’ in recognising the nature of an LDMA work moves centre stage.
21. Saw, above n 8, at 473 (emphasis added).
22. Quoted in Davies, S ‘John Cage's 4′33″: Is it Music?’ (1997) 75 Australasian Journal of Philosophy 448 at 450.CrossRefGoogle Scholar
23. Cage may well be best known for his ‘silent piece’, but as with many others of the avant-garde, that quietude did not extend to his comments on it, nor music in general. He also frequently lectured and published on virtually all aspects of his work and on music in general. On this point, see Gay, P Modernism: A Lure to Heresy from Baudelaire to Beckett and beyond (London: William Heinemann, 1997).Google Scholar
24. Cited in Kahn, D ‘John Cage: silence and silencing’ (1997) 81 Musical Quarterly 556 at 558.CrossRefGoogle Scholar
25. Ibid, at 581.
26. Nietzsche, FW On the Genealogy of Morals (Cambridge: Cambridge University Press, 2002) p 128.Google Scholar
27. Seymour, DM Law, Antisemitism and the Holocaust (London: Glasshouse-Routledge) p 99 (emphasis in original).Google Scholar
28. Saw, above n 8, at 470.
29. Ibid.
30. Ibid (emphasis added).
31. Ibid, at 471 (emphasis added).
32. Brooks, W ‘Pragmatics of silence’ in Losseff, N and Doctor, J (eds) Silence, Music, Silent Music (Aldershot: Ashgate, 2007) pp 102 and105.Google Scholar
33. Saw, above n 8, at 471.
34. Ibid, at 471–472.
35. Ibid, at 475.
36. Ibid, at 476 (emphasis in original).
37. The duration of The Sinking of the Titanic by Gavin Bryers can be anywhere between 12 minutes and over an hour. John Cage's organ piece, Organ2/ASLSP (As SLow aS Possible), originally composed for performance between 20 to 70 minutes, is now the subject of a 639-year performance. See http://www.john-cage.halberstadt.de/new/index.php?seite=dasprojekt%26l=e and http://news.bbc.co.uk/1/hi/2728595.stm%20for%20details.
38. On this point, see eg Rosen C ‘The super power of Franz Liszt’ Nyrb, 23 February 2012.
39. Komesaroff v Mickle [1986] Supreme Court (Victoria), 24 November.
40. It is to be noted also, that each ‘frame’ contained various and varying degress of a mixture of these components.
41. Saw, above n 8, at 469–470.
42. Davis, above n 22.
43. Gann makes this inference in the similarities between the ‘graphic notation’ score and Robert Rauschenberg's ‘White Paintings’. Gann, above n 3, pp 181–182.
44. Section 3(1) Copyright, Designs and Patents Act 1988.
45. Copinger and Skone James on Copyright (London: Sweet & Maxwell, 16th edn, 2010) para 3–48 (emphasis added).
46. Sawkins, above n 10, para 53 (emphasis added).
47. Schott Musik v Colossal Records [1997] 38 IPR 1 (FFCA), quoting Ricketson, S The Law of Intellectual Property (Melbourne: Law Book Co, 1984) para [5.71],Google Scholar cited in Pila, J ‘Copyright and its categories of original works’ (2010) 30 OJLS 229 at 235.CrossRefGoogle Scholar
48. Sawkins, above n 10, para 74.
49. Kahn, above n 24 (emphasis in original).
50. Copinger and Skone James, above n 45, para 3-48.
51. Per Jacob LJ, Lucasfilm, above n 2, para 47.
52. For a discussion of this point, see Gay, above n 23, pp 231–269.
53. Gann, above n 3, pp 172–173.
54. Cited in Gann, above n 3, pp 174–175 (punctuation added).
55. Ibid.
56. This importance of time is evidenced both by Tudor's description of how he first performed the piece (using the time scales inherent in the musical score) and of the use of a stopwatch in the BBCSO's performance. See above n 1.
57. See above n 1.
58. See above n 25.
59. See above n 2.
60. Pila, above n 47, and Pila, J ‘An intentional view of the copyright work’ (2008) 71 MLR 535.CrossRefGoogle Scholar
61. Per Lucasfilm, above n 2, para 54.
62. Pila, above n 47. Pila's work concentrates mainly on ‘artistic works’; here, I apply her argument to ‘musical work’ in general and 4′33″ in particular.
63. Sawkins, above n 10, Mummery LJ, para 29.
64. Ibid.
65. Here it is important to note that in the recent dispute between Mike Batt and the John Cage estate, the issue stemmed from less from the track ‘one minute silence’ itself, but rather, the inclusion, without permission, of Cage as co-composer alongside that of Batt.
66. This discussion is without prejudice to the accepted rules of copyright that allow for ‘coincidental creation’ of copyright work and/or ‘the absence of a direct or indirect causal link between the copyright work and the alleged copy. Sawkins, above n 10, Mummery LJ, para 29.
67. It is interesting to note that, as far as I am aware, no one has claimed that this particular work is to be denied copyright protection on the grounds that it would rob the world of the use of the note adopted by Klein.
68. For present purposes, the question of the test for ‘originality’ (ie the ‘author's intellectual creation’ or ‘skill, labour and judgement’) is not specifically relevant.
69. An (incomplete) list of such pieces can be found at http://en.wikipedia.org/wiki/List_of_silent_musical_compositions