John Cage is a well-known modernist (post-modernist?) composer, arguably the most important and influential American composer of the 20th century. And for copyright professors, he is the gift that keeps on giving, because his compositions routinely test the limits of copyright protection of musical works. Typically, his scores require a great deal of discretion on the part of the performer: consider this 1960 performance of his composition Water Walk on the TV show I’ve Got a Secret. But Cage’s best-known composition is probably 4’33” (1952), which instructs the performer to do nothing other than be present: the performance consists of the atmospheric sounds that occur in the absence of performance. So Zen!
The composition is an ideal point of discussion for a copyright class, because it forces students to address the meaning of copyright “originality.” According to the Supreme Court, a work of authorship can constitutionally be protected by copyright only if it is “original.” And the Court has interpreted “originality” to require both “creation” and “creativity.” Cage’s 4’33” is undeniably creative – it fundamentally transformed the concept of a musical work. But can it be protected by copyright? The idea/expression dichotomy seems to say no. So one is left struggling with what role “creativity” does and should play in copyright protection.
In any case, 4’33” is in the news (again) because Soundcloud recently removed a “remix” of 4’33” on copyright grounds. It looks like Soundcloud’s action was based on a software bot that just looked at titles, but it still presents a range of copyright questions. Is the Cage composition copyrightable at all? Surprisingly, Cage’s publisher seems to believe that the answer is yes. And they have aggressively pursued infringement actions against anyone performing “silence.” Color me skeptical. I’m not sure I even see independent creation.
But the more interesting point is that works like 4’33” show that the Court’s “creativity” requirement is incoherent nonsense. The purpose of copyright is to solve market failures in works of authorship, not to promote creativity. Copyright is not a value judgment: many immensely influential and creative works of art cannot be protected by copyright (see, e.g., Marcel Duchamp’s Fountain), and many painfully banal works can (see, e.g., anything painted by Thomas Kinkade). That is ok & as it should be. Cage’s compositions may not be protected by copyright, but that doesn’t diminish their creativity or value. If anything, it’s part of what makes them so important.
UPDATE: Zvi Rosen has alerted me to another instance of copyright entanglement with Cage’s 4’33”, in this case a rather witty conceptual art stunt, in which a YouTube user uploaded the song ‘Murderers’ by John Frusciante & titled the upload “John Cage’s 4’33″”. Initially, YouTube muted the music as infringing, inadvertently making the title “true” and implying that Cage’s “silent” work was muted. Unfortunately (?), YouTube eventually changed its copyright policy & as a result unmuted the track, spoiling the joke.
Posted by Brian Frye on November 29, 2015 at 09:19 PM