“Which Minute Did You Steal?” by (AI) Mike Batt

Here is a song that ‘I made’ for our final assignment. I put ‘I made’ in quotation marks not to be cute, but because I didn’t play any instruments, nor did I sing or record anything. Instead, I used online software to make an AI song.

I copy, pasted, and rearranged into song lyrics various excerpts from interviews with Mike Batt where he spoke about his legal battles with John Cage. We addressed these battles in class at some point in the semester, but they weren’t on the syllabus. As a reminder, John Cage wrote a piece of music titled “4’33,” aka “Four Minutes and 33 Seconds of Silence.” Mike Batt then wrote a song called “A One Minute of Silence,” which was one minute of silence; and the John Cage estate came after him. At least, that’s what Batt and a few others claimed in the media. It all turned out to be a highbrow hoax.

I didn’t rearrange individual phrases that Batt used in the interviews I plucked from. I only cut certain words and placed some before or below others.  I then used the AI software (many times) to create the song. I wanted the song to sound like “The Sound of Silence” by Simon and Garfunkel. But I had already paid $10 for the software and I would’ve needed to spend an additional $30 just to see whether it was possible to make a song that sounded like “The Sound of Silence.” So I didn’t spend the $30.

I first came up with the general idea for the song while thinking about Gould Estate. A person’s oral statements are not literary creations and do not attract copyright protection — but what if I turned the statements into a song? Would that attract copyright? If so, would it entitle the owner of the copyright to royalties? But what if I thoroughly rearranged the words from the interview such that they no longer constituted a substantial part of the work under the Copyright Act?

Batt’s oral statements were not literary creations. I wondered if, by turning his oral statements into song lyrics, I would be turning them into a musical creation under the Act. If so, could I then accuse Batt of plagiarizing my song if he were to turn the same oral statements into, say, a literary work?

I found this interesting given that, in the interviews I took Batt’s oral statements from, he talked about how he didn’t plagiarize John Cage because “You can’t copyright silence; there’s too much of it about.” There’s a lot of oral statements about as well.

But I’m not sure if it is or should be true that you can’t copyright silence. Komesaroff v. Mickle is a  frustrating case because, regardless of whether sand can be fixed in copyrightable way, artistic concepts can be – and I think this should be true no matter what an artwork is made of materially.

Although silence itself is immaterial, a recording of it is not. So perhaps the temporal parameters of a piece of silence could fix the silence for that length of time, such that a musician who writes a similar piece of music can be said to be taking a substantial part of the original work under the Act.

That said, Batt’s song, “A One Minute of Silence,” is prima facie a parody of Cage’s “4’33,” and parodies are fair dealing.

You can’t parody nothing, however . This suggest that Batt parodied something. If something is something, can’t it have substance? It seems possible that silence, as a form of intentional musical omission and conceptual novelty which requires skill and judgment, could have substance under the Act.