[Air-L] public private

Gilbert B. Rodman gbrodman at mindspring.com
Sat Aug 11 10:49:25 PDT 2007

At the risk of arguing with a lawyer (when I'm not one):

burkx006 at umn.edu wrote:
>> it's legal to perform other people's songs without their permission.
> My previous comment notwithstanding, I AM going to correct this: absent a 
> handful of unusual and narrow exceptions (like public performance of 
> nondramatic musical works at agricultural fairs) -- no, it's not. You 
> almost always need a non-statuory license for public performances.

A legal mechanism that governs what one needs to do in order to avoid
penalties for infringement is not quite the same thing as needing to
secure permission from the songwriter, though, is it?  If I want to
record a horrible version of "Like a Rolling Stone" -- and, trust me, it
would be horrible -- there are all sorts of things I need to do to make
that recording legal, but formally securing permission from Bob Dylan to
butcher his composition isn't one of them.  Dylan has all sorts of legal
rights in connection with songs he's composed, but those don't include
the right to choose who can and can't perform/record those songs.  My
point -- sloppily phrased though it may have been from a legal
perspective -- was the songwriter doesn't get to play gatekeeper here
(which was, as I understood it anyway, the point Ed's post was making),
not that there are no laws whatsoever governing what a covering musician
can and can't do.

To spin this back in the direction of the original thread, my main
concern with the "always ask permission first" philosophy is that it
gives us a world where criticism and cultural commentary can only happen
at the whim of those whose words are being critiqued.  If, for example,
Dan wants to write an article about "silly things people say about the
law," he should be able to do so -- and to quote me accordingly, if he
thinks it worth the bother to do so -- without having to come to me, hat
in hand, and asking for my permission to use words I've posted in a
public forum.  "My words" may not exactly be his to do with as he
pleases -- legally or ethically -- but they're also not (and shouldn't
be) exactly mine to control as I please either.  I can certainly imagine
contexts in which "asking permission first" would be the wise and/or
ethical thing to do ... but that's still a long way from presuming, as
some of the posts in this thread have done, that such requests should be
the default approach to online research.

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