Can You Copyright a Toilet Flush?

Erik is out of the office this week, and is actually driving through the night at deadline time, so we are reprinting this column from 2002.

I thought I had heard it all. Or, it's what I DIDN'T hear that's the problem. Some news from the British music industry may have copyright lawyers wringing their hands and cackling with glee.

Apparently, silence can be copyrighted.

You're probably gaping, open-mouthed, in stunned silence at this. Yes, silence can be copyrighted. And by gaping silently at these words, you're violating that copyright right now.

Okay, maybe not. But 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, is finding 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 wearing beatniks.")

According to the 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 Postmodern composition, "A One Minute Silence," because he listed Cage as a composer, and demanded royalty payments for his own 60 seconds of non-sound.

"Postmodern" is German for "avant-garde."

The MCPS claims Batt used a quotation from Cage's piece "4 minutes, 33 seconds," a composition composed entirely of four minutes and 33 seconds of dead silence. Cage, being the clever avant-garde artist, named the piece to match its length. It should have been titled "Truly Pointless and Stupid" so it could match the concept instead.

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 in a National Public Radio interview this week, the composition is also original, because it's digital.

Digital? That's completely different.

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? There's nothing provocative about four and a half minutes of dead silence. It would be provocative if it were a cover version of "Inna Gadda Davida" played on a xylophone made of herring tins.

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."

Cage, obviously having some sort of genius' foresight that his "masterpiece" would possibly 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 dozens 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, 'which part of the silence are they claiming you nicked?'" Batt told the Independent.

What about those little 4 second gaps between songs on CDs? Who owns the copyrights to those? Does Cage, since he wrote the original recorded silence? But 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 in the public domain, which means it can't be copyrighted. It would be like if I tried to copyright the tune of "Good King Wenceslas," which was originally written in the 13th century.

If this is the case, John Cage could never have produced his "4:33," since that was just copying the deathly silence in an empty cave, before all the cavemen came home.

And if all that is true, then not only can Cage's copyright lawyers not collect on Mike Batt's song, but it sounds like Cage's estate needs to repay anyone and everyone he ever collected royalties from.

I have compiled the list in a new piece of literary fiction called "Blank 8.5 x 11."

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