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Can You Copyright a Toilet Flush?

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.

Apparently, silence can be copyrighted.

I’ll bet you’re gaping, open-mouthed in stunned silence, as you read this. Yes, silence can be copyrighted. And by gaping silently at these words, you’re violating that copyright right now.

Okay, that last part isn’t true. 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 turtle-neck-wearing-ramble-on-about-existentialism coffee house barflies.”)

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 supposedly 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 it’s length. It should have been titled “Truly Pointless and Stupid” so it could have matched 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.”

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? The song would be provocative if it were a cover version of “Inna Gadda Davida” played on a xylophone made of herring tins, but just because it’s as silent as a church on Monday morning doesn’t make it provocative. It makes it 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.”

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 thousands 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.

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 public domain, just like “Happy Birthday.”

But that’s not all. This silence controversy came just a few months after Jamie Kellner, chairman and CEO of Turner Network, said that when we don’t watch TV commercials, we’re committing theft.

There’s that open-mouthed gape again. Let me explain.

In an April 29 interview in Cable World, Kellner railed against TiVo, fast forward buttons on VCR remotes, and flipping through the stations for three minutes. If you use any of these devices or tricks to avoid television commercials, he says, you’re committing theft.

“Your contract with the network when you get the show is you’re going to watch the spots. . . (a)nytime you skip a commercial or watch the button, you’re actually stealing the programming,” Kellner told interviewer Stacy Kramer, without explaining what he meant by “watch the button.”

“What if you have to go the bathroom or get up to get a Coke?” Kramer asked.

Kellner responded: “I guess there’s a certain amount of tolerance for going to the bathroom.”

Gee, thanks Jamie. I’m glad you have “a certain amount of tolerance” for me not peeing on my couch as I watch your network.

And since when do I have a contractual obligation with the network? If I’m contractually obligated to watch commercials, aren’t they contractually obligated not to broadcast a load of crap? (Please make your own jokes about network programming and bathroom breaks.)

I’d be interested in watching the commercials if they weren’t the only things worse than the actual shows. I mean, who wants to watch Steve Urkel on old “Family Matters” reruns, or every single Atlanta Braves game? And don’t give me that nonsense about everyone having different tastes, and trying to meet the programming tastes of different viewers.

Why is it that you can’t meet my programming tastes, but I have to sit through “Can you hear me now? Good!” The whole thing is enough to make me go Elvis Presley on my TV and shoot it. But I’m sure Kellner will have some reason why I can’t, like it violates his Constitutional rights to make me watch commercials for feminine freshness products.

But this gives me an idea for a song I call “3:57.” I’ll do 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 Are Morons For Buying This CD.”

Now if you’ll excuse me, I have to go violate my contract with network television. But I’ll make sure I don’t violate John Cage’s copyrights when I do.

About Erik Deckers (25 Posts from 2002 - 2003)
Musing about current events and personal observations for nearly 20 years, Erik Deckers' Laughing Stalk never ceases to entertain the masses with tales of philosophy, parenting and Xena, Warrior Princess. Remember Xena?