Can silence be copyrighted?

A DJ recently made the news after claiming that SoundCloud — an online audio distribution platform — removed a song of his because of copyright infringement. The song in question was titled "John Cage — 4' 33 (DJ DETWEILER REMIX)."

The title refers to the late American composer John Cage, and arguably his most famous, most important work, 4'33". For those not familiar with the piece, the 1952 score instructs a performer (or performers) to not play their instrument(s) for the entirety of the piece. The 'music' comes from the environment in which the performance occurs — a creaking door, a cough from the audience, a chirping bird, and so on.

It was initially reported that SoundCloud deleted the song because because it infringed on the copyright of John Cage and his famous silent composition. However, it was later revealed that the track included Justin Bieber's "What Do You Mean." An official statement from SoundCloud reads:

"The upload [...] was not a track of silence and was taken down because it included Justin Bieber's What Do You Mean without the rightsholder's permission. The respective user uploaded the track under the title "4'33"," which is also the name of John Cage's famous piece of silence but it was not, in fact, silence. We're happy to host any content on the platform as long as it's properly authorized. If we're told that any content has been posted without permission, we need to remove that content in accordance with applicable law."

Regardless, the situation raises an interesting and important question: can silence be copyrighted?

This isn't the first time the issue of copyright in connection with 4'33" has been raised. In 2002, songwriter/arranger Mike Batt settled out of court with the John Cage estate after being accused of copyright infringement. An album called Classical Graffiti included a track titled "A One Minute Silence" (which described precisely what it was), and was credited to "Batt/Cage". While the title and songwriter seemed to be obvious references to John Cage, Batt claimed that it was a reference to Clint Cage — a pseudonym Batt had registered for himself. In the end, Batt considered the payment to be more "extending a hand of friendship" than an admission of guilt.

It may surprise some that there are, in fact, available recordings of the piece. In 1993, Frank Zappa recorded 4'33" for "A Chance Operation" — a tribute CD which included works written by, influenced by, or dedicated to John Cage (and in this case, royalties were paid). Listen to Zappa's recording in the clip below.

And by contrast, here's a full orchestral version led by conductor Lawrence Foster:

https://www.youtube.com/watch?v=zY7UK-6aaNA