The Sound of Silence

As a supporter of the Royal British Legion (and an ex-serviceman myself) I'm pleased to see the RBL finding new and innovative ways of raising money. This year they have taken the novel step of releasing a single of the Two Minutes' Silence. You can see a short excerpt from the video here.

Now at this point I was suddenly reminded of John Cage's silent 4'33" and more specifically the legal case brought by Cage's UK publishers against Mike Batt (better known to many for the theme song of The Wombles) for allegedly infringing it. Batt included a one-minute silent track on an LP, crediting it to "Batt / Cage". The case settled out of court, reportedly for a substantial sum, although this denied the chance for some judicial enquiry into the extent to which copyright exists in silence.

For a detailed review of the legal issues see Cheng Lim Saw's very thorough analysis in 'Protecting the sound of silence in 4'33" - a timely revisit of basic principles in copyright law' [2005] EIPR 7:12. Cheng Lim Saw concludes that 4'33" very likely does not attract copyright protection under English law, although the question is not as trivial as it might at first appear. For example, the work is not simply a silent interval; it is meant to be performed (albeit very passively) so an audience will always be aware of background noise and environment. But what copyright was asserted in was not a specific recording of a near-silent performance, but the piece itself, and in Cheng Lim Saw's view this is where the copyright claim fails, for how can there be certainty in the identity of the work copied if the piece has no content to be identified?

So what about the RBL's track? Well, it is not a work of sound - or silence - alone. It is a video, featuring well-known personalities as well as injured soldiers as they observe silence. Although everyone in it is static there is no reason to believe that it is not a dramatic work, in terms of the composition and editing. And, as with 4'33" the soundtrack is not truly silent; rather it records the sounds of someone standing still.

In a sense the RBL video has a very important point in common with 4'33": it is meant to make the audience concentrate and reflect on the attempt at silence, although the two works do so in very different contexts. I agree that if the Batt case had gone to trial the copyright claim might well have failed, but were there other potential heads of claim that could have been more arguable? (False attribution, for instance, or passing off; Batt's real mistake may have been in putting Cage's name to his track.)

I very much doubt that the RBL are going to find themselves following Mike Batt in terms of receiving a claim for copyright infringement. A silent video, even if it's point is the depiction of silence, is not a performance of a 4'33", even if the later does enjoy copyright protection - which it probably doesn't. But part of me wishes that there was another case on this that went to litigation, because I would love to hear the legal arguments put forth.