Can You Copyright a Toilet Flush?

Can You Copyright a Toilet Flush?
Erik Deckers
Laughing Stalk Syndicate
Copyright 2008

Erik is out of the office this week, so we are reprinting a column from July 2002.

I thought I had heard it all. Or I guess it’s what I DIDN’T hear. Some news from the British music industry may have some copyright lawyers wringing their hands and cackling with glee. More than usual.

Apparently, silence can be copyrighted.

I’ll bet you’re gaping open-mouthed in stunned silence at this news. And by gaping silently, you’re probably violating that copyright right now.

At least, creating a silent track on your own CD can actually land you in some legal hot water, as Mike Batt, former member of the UK band The Wombles, found out. He’s facing a potential lawsuit for copying silence from avant-garde composer John Cage (“avant-garde,”from the French meaning “No one cares except a bunch of black turtleneck-and-beret-wearing-ramble-on-about-existentialism coffee house barflies.”)

While Cage is known for a wide variety of crap songs, I mean avant-garde music, it's his musical masterpiece, "4:33" that he's known for. He named it "4:33," because it's exactly four minutes and 33 seconds of dead silence (this link goes to a YouTube performance). Cage, being the clever avant-garde artist, named the piece to match its length. It should have been sub-titled “Truly Pointless and Stupid” so it could have matched the concept as well.

Of course, Cage didn't just intend for the piece to be four-and-a-half minutes of nothing. The listener is supposed to take in the environmental sounds too, like someone scratching their head in puzzlement, the gentle snoring of the guy in front of you, or the murmurs of "can you believe we paid ten bucks for this?"

According to a story in the July 2002 London Independent (official motto: “You’re Not the Boss of Me!”), Batt received a letter from the Mechanical-Copyright Protection Society, the British organization charged with collecting royalties for composers and publishers.

The MCPS sent him a standard license form for his post-modern composition, “A One Minute Silence,” because he listed Cage as a composer, and supposedly demanded royalty payments for his own 60 seconds of non-sound.

(“Post-modern” is another word for “avant-garde.”)

The MCPS claims Batt used a quotation from "4;33," but Batt says this isn’t true. “My silence is original silence,” he told the Independent, “not a quotation from his silence.” And as he said on National Public Radio this week, the composition is also original, “. . . because it’s digital.”

Oh well, if it’s digital, then what’s all the fuss?

The problem started when Batt gave credit to “Batt/Cage” on the composition (he said he did it “for a laugh”). But according to Andante Magazine, Gene Caprioglio, a representative of Cage's American publisher, says that Batt listed Cage on the credits for “obvious reasons. . . to evoke Cage’s provocative 1952 composition.”

Provocative? What’s so provocative about four minutes and 33 seconds of dead silence? Playing “In-A-Gadda-Da-Vida” on a xylophone made of herring tins is provocative. Being as silent as church on Monday morning is just, well, boring.

But Caprioglio was steadfast. “If Mr. Batt wants to produce a minute of silence under his own name, we would obviously have no right to the royalties.” Frankly, if he produced 4:33 of silence under his own name, you would have no right to the royalties either. It's freaking silence. It existed before John Cage ever forgot to hit Record on the tape deck. If anything, it's public domain.

Cage, overly paranoid that his “masterpiece” might be copied by musical ne’er-do-wells, left strict instructions that allowed “4:33” to actually be any length. However, there was no word as to whether the title of the song would change as well, to say, “2:18,” “17:00,” or “Dear Lord, Will This Thing Never End?!”

Cage’s publishers, in an allegedly greedy attempt to get the tens of pennies earned from Batt’s composition, are arguing that Batt actually copied “4:33,” but since his song was 3:33 shorter, he only copied part of it.

“As my mother said when I told her, ‘which part of the silence are they claiming you nicked?’” Batt told the Independent.

All this leads to the question, what about those little 4 second gaps between songs on CDs? Who owns that copyrights? Does Cage, since he wrote the original recorded silence? Or would Batt have a shot at them, since he was the first one to record silence digitally, and CDs are a digital medium? And since they’re only 12% as long as Cage’s original “masterpiece,” will the royalties be prorated?

One could conceivably argue that silence existed long before there was life on this planet, and therefore silence is actually public domain, just like “Jingle Bells.”

But this gives me an idea for a song I call “3:57.” It’ll be an extended cover remix of Mike Batt’s “A One Minute Silence” interspersed with the “Can You Hear Me Now?” phrase every nine seconds. I’ll call it “Avant-Garde People Will Buy Anything.”