LawClanger Link

[major_clanger]

The Sound of Silence - could the Royal British Legion be sued by the estate of John Cage?

Comments

[cartesiandaemon.livejournal.com]

:)

I know unfortunately too little about copyright law to know what's legal. Common sensicly, if they say right on the packet that that segment was copied from John Cage, then they owe him royalties, and if you can tell by examining the encoding of the sound that segment was copied from John Cage, then they owe him royalties, or if the segment is obviously inspired by Cage from the context, then they owe him royalties, and if it has a completely different artistic value that just by coincidence shares some similarities, then they DON'T owe him royalties.

The difference with a normal work, is you can't easily tell if it's copied by comparing the contents, whereas you normally can, and it's disproportionately more likely that something WILL be very similar, just by coincidence.

I guess -- though I have no idea -- the same applies in the law. What I don't know is if two things that are similar by coincidence should be prevented, legally, or morally. (I think "no" but I don't know for sure.)

[major-clanger.livejournal.com]

The legal test we currently have is actually fairly pragmatic. It's from the Designer Guild v Russell Williams case on fabric designs, which went all the way to the House of Lords. Their Lordships decided that 'substantial copying' requirement for infringement meant pretty much what it said, and that you shouldn't try to, for instance, dissect a work into little bits and see which had been copied. It's a subjective judgement, although obviously if you can technically prove literal copying that helps a lot.

As I said in my blog post, I suspect that Batt's mistake was to put Cage's name on the record without permission, and so it may have been more a case of trading on the reputation of a famous composer than actual copying of a work that might well not be copyable at all.

[penguineggs.livejournal.com]

I was one of the lawyers involved in Designers Guild (specifically, extensively on the preps for first instance, almost not at all with regard to the CofA, and with regard to the preparation of the application for leave to appeal to the House of Lords) and I would say it's extraordinarily difficult to apply the test to anything other than a visual medium; the tests for aural and literary works are cognates but not identical.

[major-clanger.livejournal.com]

Thank you for clarifying the point - and how interesting to hear that you were involved in DG!

This, again, is why I rather regret that the Batt case never went to court. It would have been fascinating to hear what, for instance, Laddie J might have said about it.

[ffutures.livejournal.com]

I can't see any way the estate of John Cage would come out of this without looking like rapacious gits. Which is why I suspect it won't happen.

[major-clanger.livejournal.com]

Yes indeed. Part of being a barrister is giving your client useful practical advice rather than just a dissertation on the applicable law, and in this case it would be "and besides, suing a charity in such a way would look so awful I can't imagine anyone doing it."

That doesn't mean that charities get carte blanche though; if a charity did something that was blatant infringement, such as copy someone's photos without permission for a Christmas card, then if they refused to resolve the matter it could be reasonable to take legal action against them to ask for, say, an appropriate licence fee. But as a charity trustee myself I'm aware that if you do the sort of thing as a charity that gets you justifiably sued, then the lawsuit is just one of your problems; an Interview Without Coffee with the Charity Commissioners may well follow...

[pwilkinson.livejournal.com]

Isn't the RBL recording one of a work that's been performed regularly and widely since about 1919 (rather before the composition of 4'33")? Even though that almost certainly doesn't provide grounds for suing the Cage estate, isn't there anything similar to prior art when it comes to copyright?

[uitlander]

Surely 'prior art' applies in the case of silence? Or at least any silence that is not exactly 4 minutes and 33 seconds long in a performance context?

Prior art and silence

[penguineggs.livejournal.com]

Only if you're trying to patent it.

Re: Prior art and silence

[uitlander]

"In the United Kingdom, virtually every work created by the labour, skill and judgement of individuals and institutions is covered by copyright as long as it meets certain conditions. These pre-requisites are:

1. The work must be original

2. The work must be in a material form. Ideas cannot be copyrighted, but the expression of those ideas into a physical format will gain copyright."

From http://www.ahds.ac.uk/copyrightfaq.htm#faq1?

In what way is the concept of 'silence' original. I am fairly sure it existed before Cage's 1952 composition?

Also all blank recording media start life by being 'silent'. I do not see how 4'33" can be copyright in any form beyond the use of the name on a recording of 'silence' of the specified length.

Re: Prior art and silence

[major-clanger.livejournal.com]

It's A Bit More Complicated Than That.

All forms of IP (copyright, patent, trade mark and registered design*) require some level of originality, but the test differs from one to another. 'Prior Art' is a concept from patent law, and has a specific technical meaning; to put it in simple terms, someone else must have openly worked the invention or described it in enough detail to put it straight into effect.

For copyright (and I'm simplifying a bit here too) the test is that a work needs to be original, but the threshold of originality is very low, although the simpler a work is, the harder it is to show originality. Unfortunately that paper I cite is on a sub-only site, because a good part of it comprises a detailed analysis of whether a period of silence could in any way be held to be 'original'. (The author's conclusion being that it very likely couldn't.)



(*Yes, there's passing off as well. That's strictly a tort rather than a form of IP in its own right but is bundled in with trade marks, and it requires that you have 'goodwill' in the appearance of your goods, so implying a degree of distinctiveness and originality.)

Re: Prior art and silence

[surliminal.livejournal.com]

I think the idea of silence as a *musical work of art* is in fact very original - hence the fact that Cage's work is probably one of the best known classical pieces ever.

[feorag.livejournal.com]

There was a case a few years ago where Cage's record company successfully sued someone who joked that the silent patches on his record were sampled from 4' 33".

[feorag.livejournal.com]

Ignore me - commenting before actually reading the link.

[davidwake.livejournal.com]

That's just ludicrous.

I suspect Mike Batt fell foul because he credited his silence "Batt/Cage" - clearly copied.

2 minutes silence has prior use and a different creative trajectory (as has been pointed out), so it should be fine. (Unless the law decided to be ass like.)

Is putting "Pause" in a play infringing Pinter?
Is putting "Pinteresque pause" in a play infringing Pinter?

[surliminal.livejournal.com]

Oh that's great.
I'd argue that like common newspaper headlines ("Man hit by truck in coma") though these may reproduce directions Pinter wrote, they are not copies but were merely coincidentally created the same.

As ideas - you can't copyright ideas just the expressions of them.

God I'm turning into an IP lawyer.

Simon - I've suggested we invite Jack of Kent to next eastercon!