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Specimen 743

Presented at Disclosures at Middlesex Street Estate on Sunday 30 March 2008. Published in F.R.David in 2009.

In 2002 the British producer, songwriter and composer, Mike Batt, released with his band, The Planets, the compact disk “Classical Graffiti” on EMI records. The Planets is Mike Batt’s crossover band; A group of eight young musicians play well-known classical music arranged by Mike Batt for instruments associated with pop and rock music. The CD includes adaptations of Bach, Bizet, Ravel, Rodrigo, amongst others… Batt divides the tracks on the CD into two sections: In the first section, he uses electric guitars on twelve tracks, and in the second section are four tracks using acoustic guitars. As a divider between the two sections is track 13, consisting of a minute of silence, which Batt calls on the program note: “A One Minute Silence (Batt/Cage) – classical version”.

In 1952, inspired by the Robert Rauschenberg’s “White Painting”, John Cage finalized the score of a music piece he had a long time in mind. Cage described the piece called “4’33”” as: “It has three movements and in all of the movements there are no intentional sounds. I wanted my work to be free of my own likes and dislikes, because i think music should be free of the feelings and ideas of the composer.” … “There is no such thing as silence. Something is always happening that makes a sound. ” …“[t]he essential meaning of silence is the giving up of intention”. There exists three different versions of the score. The most distributed version is the score by Edition Peters published by Kenmar Press in 1960. The score indicates that the composition is for any instrument or combination of instruments and the score instructs the musician in three movements “I TACET , II TACET , III TACET ”. “Tacet” is a musical term to indicate that an instrument does not play for a long period of time, typically an entire movement. The score also includes the following note: “The title of this work is the total length in minutes and seconds of its performance. At Woodstock, N.Y., August 29, 1952, the title was “4’33”” and the three parts were 33”, 2’40”, and 1’20”. It was performed by the pianist David Tudor, who indicated the beginnings of parts by closing the piano lid and the endings by opening it. After the Woodstock performance, a copy in proportional notation was made for Irwin Kremen. In it the time lengths of the movements were 30”, 2’23”, and 1’40”. However, the work may be performed by any instrumentalist(s) and the movement may last any lengths of time.”

The length of the work “4’33”” suggests the typical length of music commercialized by Muzak Co. But the title “4’33”” is not designated by the score. The title of the piece in each performance is determined by the length of silence chosen. Cage chose the length by chance methods.

The UK Copyright, Designs and Patents Act of 1988 states in Section 3 (1) that “musical work means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.” and in Section 5 “a recording of sounds, from which the sounds may be reproduced, or a recording of the whole or any part of literary, dramatic or musical work, from which sounds reproducing the work or part may be produced, regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced”.

In 2002 Gene Caprioglio, a representative of Peters Edition, the music-publishing company that administers the Cage catalog asked the Mechanical-Copyright Protection Society (M.C.P.S), a British organization that collects royalties for composers and publishers, to send its standard license form to Mike Batt. Since “A One Minute Silence” listed Cage as a composer, the group billed Mike Batt for the track. When originally presented with this letter Batt reacted: “I’m prepared to do time rather than pay out. We are talking as much as £100,000 in copyright.” The same year, Batt received a letter via the M.C.P.S. which stated that track 13 on the CD was a copyright infringement of the work “4’33”” by John Cage. Peters Edition claims that “A One Minute Of Silence” is a copy of Cage’s 1952 piece “4’33.” Caprioglio noted that Cage’s instructions allow his piece to be of any length. He claimed a quarter of the royalties from the track.

Mike Batt negotiated with the director of Peters Edition, Nicholas Riddle. First they agreed to perform on July 17th 2002 “A One Minute Of Silence” and “4’33”” at Baden Powell House in London in front of an audience. “4’33”” was performed by a clarinet player and “A One Minute Of Silence” by the Planets. After the performance they debated the legal intricacies. Riddel stated: “This is intellectual property that needs protecting. I can see Mike [Batt]’s side, but I think he should see our side more clearly. He is a creative artist – he has a vested interest in a system that protects creative work- so in some ways he’s sawing at the legs of the very stool he’s sitting on.” Riddle mentioned also that Frank Zappa had paid full royalties for his recording of “4’33””on a Cage tribute album. Mike Batt at first argued that the name Cage does not refer to the American composer John Cage, but to his pseudonym Clint Cage. “When I decided to put a minute’s silence on an album of mine it was a respectful, jokey, John Cage thing to do. I had registered the name Clint Cage with the Performing Right Society so that I couldn’t be sued: in effect I was co-writing a piece of silence with myself. But it was the use of the name that caused controversy.” He also argued that he registered the copyright of a few silent works. He said: “proudest of two of his registered copyrights: four minutes and thirty-two seconds and four minutes and thirty-four seconds”. Riddle said “that Cage always said the duration of his piece may be changed”. Mike Batt argued that his silence was different from Cage’s, since firstly it was digitally recorded, and secondly it “is a much better silent piece. I have been able to say in one minute what Cage could only say in four minutes and 33 seconds.”

Finally on September 23th, 2002 Batt settled with Peters Edition in London out of High court for an undisclosed amount of six figures pound sterling. Batt stated after “This has been, albeit a gentlemanly dispute, a most serious matter and I am pleased that Cage’s publishers have finally been persuaded that their case was, to say the least, optimistic. We are, however making this gesture of a payment to the John Cage Trust in recognition of my own personal respect for John Cage and in recognition of his brave and sometimes outrageous approach to artistic experimentation in music”. After this settlement “A One Minute Silence” has been released as part of a double A-side single.

The controversy did not reach the courts and many questions remain. Legal scholar Dennis Kurzon for example asks: In how far can silence be considered a musical composition or the recording of sound? Is one minute of silence using more than enough in relation to the legal concept of “de minimis”, the minimal recognizable element of a song or musical piece? Does a title need to be fixed? Can unintentional sounds, be part of the work? Is “A One Minute Silence” a parody of “4’33””? Was the composition “4’33”” itself a copy of the 1884 composition “Funeral March for the Last Rites of a Deaf Man” by the French humorist Alphonse Allais? And what about the audience which is always expected to remain silent?

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