Lewis Hyde/Nicholas Riddle Exchange

From:   Lewis Hyde
Sent:   09 July 2008
To:   Nicholas Riddle
Subject:   John Cage & Mike Batt -- a query

Dear Nicholas Riddle,
I have your name from Laura Kuhn at the John Cage Trust.  I wrote to Laura a while back because, in a book I am writing about "cultural commons" vs. proprietary work, I think I may use the story of Mike Batt listing a minute of silence under the "Batt/Cage" credit--and the Peters Edition suit that followed.
I know about this from various news reports, such as the one I paste below (see Cassingham essay.)

Cage was/is an important figure for me (he appears in a chapter of my book, TRICKSTER MAKES THIS WORLD), and mostly I am amused by the philosophical implications of this tiff.  (For example:  much copyright law is based on the idea of the work reflecting the author's personality; Cage, of course, went to some lengths to remove personality from the work.)

I rather assume that there is more to this story than what's reported in the papers. Is there?  What might you tell me?
All best wishes,
Lewis Hyde

From:   Nicholas Riddle
Sent:   10 July 2008
To:   Lewis Hyde
Subject:   John Cage & Mike Batt – a query

Dear Lewis (if I may),

Very many thanks for your message - Laura had mentioned that you would be writing. I'm certainly very happy to answer your questions as far as I can, the only proviso being that we did make a confidentiality agreement over some details, and so some specifics have to remain private to the people and organizations involved. However, I suspect that much can be deduced from more general statements.
The first thing to say is that the press went considerably beyond the facts that they were given and in some cases did not entirely understand the import of what they were being told. It might also be worth knowing that only a couple of journalists turned up for the "final round" on the steps of the High Court, and their impressions of what was happening then traveled around the world and became the holy writ of the story - in spite of the fact that they had not entirely accurately grasped the matter. In particular, neither Mike Batt, nor I, nor any member of the Peters team or the Cage Trust, has ever quoted any figure to the press in connection with the settlement.
Perhaps it would be helpful to use the text you forwarded as a basis for a brief commentary:

British musician Mike Batt produced the album Classical Graffiti for the rock group The Planets. The album had two distinct styles on it, so Batt decided to put a minute's break between the two sections.
"I thought for my own amusement it would be funny to call it something, so I called it A Minute's Silence and credited it as track 13, and put my name as Batt/Cage, as a tongue-in-cheek dig at the John Cage piece," Batt said.

So far so good, but it might also be important to know that his record company forwarded the label copy to MCPS, which was handling the mechanical royalties for these CDs. They then identified Cage’s 4’33” as the work in question and started to pay out pro rata royalties to us as Cage’s publisher. It was some time before this turned into a late June news story in one of the broadsheet papers. After some discussion between the parties, we agreed to a run-off between the Batt piece (performed by The Planets) and the Cage piece, performed at the clarinet by our London firm’s Head of New Music, Marc Dooley – a real virtuoso on the instrument when a work actually calls for notes to be played, by the way. A great deal of press turned up for this at Baden Powell House in London, with television coverage and many slightly stereotypical journalists who had not the faintest idea what we were talking about, but wrote quite entertaining – if also misleading – stories about it.

The Cage piece he refers to is a 1952 "composition" called 4'33", a "famous" bit of "music" -- 4 minutes and 33 seconds of silence -- by American avant-garde composer John Cage, who died in 1992. Cage was granted a copyright for 4'33". Batt's acknowledging it, even in a cheeky way, was a big mistake: Peters Edition, Cage's music publisher, sued Batt for copyright infringement on behalf of the John Cage Trust, asking for a quarter of the royalties from Batt's album.
That's right: the lawsuit claimed Batt stole his silence from Cage. "As my mother said, 'Which bit of his four minutes and 33 seconds are they claiming you stole?'," Batt said at the time. None of it, he insisted. "I certainly wasn't quoting his silence. I claim my silence is original silence." Perhaps in the world of lawsuits, such a claim makes some sort of logical sense.

Of course, the claim was nothing to do with stealing silence from Cage. The issue was entirely that Batt identified this silence as having Cage authorship, leading to a presumption that he was quoting in some sense from 4’33”, and was so successful in doing so that the collecting society started to pay out mechanical royalties for it. There were really only two options here: either, the track really was intended as a quotation from 4’33” or some other unidentified Cage work, in which case mechanical royalties were due; or, he was misappropriating Cage’s name in the context of a musical work, and that also would not do. He, after all, was the one who claimed it was Cage in the first place. Was he passing off something else as being by Cage, or was the work actually Cage? Since performances of 4’33” could be said in some sense to be self-identified as such, it was really his call.

When the infringement claim came to light, few thought it could possibly prevail. Duncan Lamont, a British lawyer specializing in the music industry, was one expert who rolled his eyes over the squabble. "Is [Cage's composition] a work? Has it been written down, is it a literary, artistic or dramatic work? The argument will be there is no work because there are no notes." If there is "no work", there could be no infringement and the case would fail.

Well yes, it has been written down – in three versions, as a matter of fact. There is another point here: what makes a performance of 4’33”? Partly it must be the announcement of the performance, the attendance of the audience, the intention of performer and his/her/their adherence to the instructions in the score; but one could argue that it is also the apparatus around it – the concert hall and its traditional accoutrements, and perhaps also the payment of performing or other royalties that attends the performance of any work of music. Well, that’s one of the more theoretical issues in the story. In fact, the question Duncan Lamont put is only partly related to the issue. If there was no performance of an artistic work here, then Batt is still open to question for having used Cage’s name as he did.

Batt, too, was feisty. "Has the world gone mad? I'm prepared to do time rather than pay out," he told the press. "We are talking as much as 100,000 pounds (US$155,000)" in royalties. Besides, he said, "mine 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."

If a 1 minute piece on a 76 minute CD could, on a pro rata basis, generate £100,000 royalties, just imagine what the overall royalty rate would have to be – or alternatively, how many copies one would have to sell to reach these figures…

But just a few months later, Batt was done -- he settled out of court for an undisclosed six-figure sum, or pretty much what he was afraid he would have to pay if the suit succeeded. He handed over a check on the steps of the High Court in London, saying he was "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."

See my comments above on what I can and cannot say. However, the events described above did indeed take place. Actually, here’s something nobody knows: the cheque he handed me on the steps of the High Court turned out actually to say “Pay the Bearer: An Undisclosed Sum” – which was very funny at the time, and perhaps just showed that he did not want the details discovered by accident if one of us were to drop the cheque. However, he followed it up, good as his word, with a real cheque shortly thereafter.

A spokesman for Peters Edition, Cage's publisher, called the payment a "donation" which was accepted "in good spirit." He said the company had been ready to go to court to defend the copyright they controlled.

Well, not quite. We carefully said that we would willingly go to court to defend the reputation, works, and legitimate interests of our composer – a distinction that was lost on the reporter.

Donation, or extortion payment? You be the judge, but be warned: now that you know of this case, you really can't afford to be silent about it.

Well, obviously it was not the latter. Mike Batt really did make a donation, and he did so as his proposed solution to the issue, which we accepted.
Although we didn’t actually talk about this in arriving at the settlement, my personal take on this is that it is important to remember that Mike Batt is also a composer and that a significant part of his income is from royalties earned on his existing works. The same applies to CDs of his music or the music of the bands he creates and promotes. He is heavily invested himself in the concept of intellectual property and its value. And rightly so, in my view. Artistic creativity is one of the things that truly differentiates us from the animal kingdom (as well as opposable thumbs), and is one of the most distinctively human characteristics. It has always seemed to me that the current generation has its sense of values completely screwed up: artistic creativity is one of the most valuable things on the planet, worthy of more protection and appreciation than most of the things on which we place emphasis and consider valuable. The people who think that artistic creativity of all or any kinds should somehow be valued like the air we breathe, or the water we need to live, simply don’t understand what kind of human gold dust they are dismissing as so much air and water. It’s the crown jewels of the human race. Of course, it should be made available to all, but the creators should be protected and valued for what they say about what it means to be really human.
Hope this has been of some help. If there’s anything else you would like to know (apart from the things I cannot go into, obviously), please do not hesitate to get in touch.
With best wishes,
Nicholas Riddle

From:   Lewis Hyde
Sent:   Between 10 July and 23 July 2008
To:   Nicholas Riddle
Subject:   John Cage & Mike Batt – a query

Thanks so much for the helpful background on the Mike Batt dust up. I had suspected that the issue had more to do with attribution than with infringement.

I end up with one set of questions about the case, which I'll preface with a few somewhat philosophical reflections.

First of all, I agree with you about the value of intellectual property although, as I am deep into a book about this, I feel there are many nuances to be teased out. One of those nuances appears in what follows; beyond that I'll simply say that I think the 1710 Statute of Anne was a wise and just law, combining authors' rights with a term limit such that created work eventually feeds the public domain. Much of the puzzle in IP policy is to figure out how to balance public and private rights such that both are preserved.

As for the Batt business and the nuance it raises, I would now frame the conflict as a moral rights issue, where such rights include the right of attribution, the right to prevent false attribution, and the right of integrity. As I understand it, the concept of moral rights comes out of a tradition (beginning with Kant) asserting a connection between an author and his or her creation. Moral rights protect the personal and reputational, rather than purely monetary, value of a work to its creator.

We don't really have this tradition here in the United States--with one exception, and that rather recent: the Visual Artists Rights Act of 1990 speaks to both attribution and integrity. That law says that these rights "are considered personal to the author and cannot therefore be bought, sold or transferred"; moreover, they end with the death of the artist.

A chapter in my book, TRICKSTER MAKES THIS WORLD, is devoted to the creative uses of chance and, of course, contains considerable reflection on Cage's practice. At one point I contrast Picasso and Cage:

"Picasso ... was quite happy to work with accident as a tool of revelation ('From errors one gets to know the personality!'), but Cage was not ('Personality is a flimsy thing on which to build an art.'), for Cage was after [Jacques] Monod's 'absolute newness' of pure chance. He was not out to discover any hidden self, nor did he think chance operations would reveal any hidden, already-existing divine reality, as ancient diviners thought. 'Composition is like writing a letter to a stranger,' he once said. 'I don't hear things in my head, nor do I have inspiration ....'"

Elsewhere I contrast Cage and Jackson Pollock:

"Pollock's working assumption was that the wildness of his paintings expressed his deep, primitive, and feeling self, and Cage would argue, I think, that no matter how 'deep' the self is, it's still the self. 'Automatic art... has never interested me, because it is a way of falling back, resting on one's memories and feelings subconsciously, is it not? And I have done my utmost to free people from that.' Cage much preferred the incidental drawings that are scattered throughout Thoreau's JOURNALS: 'The thing that is beautiful about the Thoreau drawings is that they're completely lacking in self-expression.'"

You write that artists help us know "what it means to be really human." I agree. In Cage's case, what he wanted us to know is that the impermanence of personality is a gateway to perception.

I am aware that there are complexities here, that Cage for example used chance in composition but then cared very much that his pieces be performed as composed, not submitted to further chance.

That said, and to come back to the Mike Batt affair, what interests me is the seeming disconnect between Cage's Buddhist practice that sought to suspend self-making and personality, and the philosophy behind moral rights which assumes, as some European law asserts, that the work contains "the imprint of the author's personality." Though not working from the same tradition, U.S. Copyright law has sometimes touched on "personality" in a related way. A key Supreme Court case from 1903, for example, concerned whether or not there could be a copyright in something as mundane as printed posters for circus acts. In affirming that there could be, Justice Oliver Wendell Holmes wrote that "an artist who draws from life ... makes a work that is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible which is one man's alone."

Such is the set of ideas out of which I'm musing on the Mike Batt story, with one addition, I suppose, and that is Cage's sense of humor wherein there is a strong link between happiness and being open to happenstance. For it seems to me that this tale begins with a joke on Batt's part, and that once the mechanical royalties appear, the joke continues--the "run-off" between the two pieces seems entirely in the right spirit.

But then things seem to have gotten serious, I presume because of the background moral rights issue (as you say of Batt, "he was misappropriateing Cage's name"). All of which leads me to my questions:

You write that Batt's donation was "his proposed solution to the issue." What had Peters Edition ask for, such that a solution was required? Was a legal action ever brought or suggested? If so, what was the point of law? If not, what issue needed to be solved? If the issue is "reputation" and misappropriation, and if Batt--himself a composer--understood that, why not a simple apology and change in the credit line? Why a donation? From the outside, at least, the donation has the look of an out-of-court settlement.

I really appreciate your having taken the time to reply to my original e-mail.

All best wishes,