a lot of Noise about Silence

A lot of Noise about Silence

By Bill Schaeffer

April 10, 2004

Recently I read an article about a copyright infringement case involving the famous piece by John Cage, 4’ 33”.   Mike Batt, a popular recording artist, included a minute of silence on his new CD release.   The estate of John Cage sued for copyright infringement and the case was settled out of court for six figures.

This is particularly interesting to me because I also recorded silence on one of my CD’s which was mentioned in the article.    At this point, I must note with bitter irony that the one piece for which I am receiving the most notice contains no “real” music at all.   What does that tell me about the rest of my music?   But I digress…

For the record, as of this writing, I have not yet recouped my production costs for the CD.  My distribution count is less than 500 and most of those copies I gave away to musician friends and as demos.   The CD is piano music with percussion accompaniment.   At the end of the CD I included two minutes of silence for humorous effect.  I did not want to include it with another music track, and I had to call it something, so I called it “Silence.”  

To my understanding, of the United States copyright law, one can only copyright a chord progression with a melody.   It is not possible to copyright a chord progression alone, but it is possible to copyright a melody with no chord progression.   In all cases, the melody is to be of a certain minimal length.   A melody is defined as a sequence of notes or pitches.    Now, the real question:  Is a piece of music consisting of only rests, with no chord progression and no melody, a copyrightable piece of music?   Is it of a form that is legally possible to copyright?

Even though 4’33” by John Cage is a valid musical piece and significant in the evolution of musical thought, it does not seem to be a work that is protected under United States copyright law.    But I could be mistaken.

Don’t get me wrong, I have a great deal of respect for John Cage and actually met him once after a graduate school lecture at the University of Illinois.   I feel honored to have heard him speak and still have fond memories of his gentle and humorous nature.   He talked at great length about mushrooms, the sounds of everyday life, and music. 

At that point in my life I had already stopped listening to music incessantly and enjoyed hearing his views on the matter.   I enjoyed then, and still enjoy now, driving in silence and listening to the sounds of the road and the street.   I like listening to the sounds in the next room and outside the window.  At work I rarely listen to headphones, because I can hear the music on the headphones of the person next to me.

I also saw the John Cage art show at MOCA, in Los Angeles in the early 1990’s, and recorded some of it on a portable cassette recorder.   The best part of the tape was the malfunctioning drain in the fountain outside -- it sounded like Jabba the Hut with intestinal distress - hilarious.   I even made copies and gave them to friends.

In my case,  the origin and inclusion of the piece “Silence” had little to do with John Cage.   Before I was recorded the CD I was performing regularly with Michael Talarczyk at a Santa Monica coffee house called Anastasia’s Asylum.   After we finished our set, we liked to go across the street for a beer at a bar called JT’s.    It was a small, crowded sports bar and the juke box was very loud.   After playing a difficult set, my head was “ringing” and I wanted juke box to be quiet.   But since the bar was crowded and everyone was having fun, the juke box was constantly blaring.   One night I said to my friends, “Wouldn’t it be nice if there was a CD on the juke box where you could  just buy silence?   You put in a quarter and get 3 minutes of silence.”   The idea sounded good and I vowed that if I got the chance I would put a track of silence on my next CD.   When I was producing “Grain of Sand” I remembered that promise and included “Silence.”

So now, if my CD - “Grain of Sand,” is in a juke box, and someone is tired of all the noise and blaring music, they can actually buy some peace and quiet.  

There is a small problem, however.    No one has even heard of my CD, so it will probably never get on a juke box anywhere.   After this controversy and this article, it is possible that people might listen to the CD out of curiosity.   If they do, I expect they will like the music but there is always the chance that people’s favorite piece will still be the track, “Silence.”        

If so, what should my next “career move” in the music industry be?   Release a CD of  different arrangements based on the theme of silence?   Keep banging on the piano and hope that eventually something turns out good?   Give up music and concentrate on my “day job?”   Plagiarize everyone I can think of and use the court system as an ad agency to generate press for the tabloids?   Retire from the world and join a monastery?   Who knows?   But while I am considering the options, I think I’ll go practice a piano version of “In C” by Terry Riley.   However, since my version is quite unique, I think I’m going to call it “In B sharp” instead.

Copyright© 2004, 2014 Wm Schaeffer