In terms of asking the authors, when I was in the process of planning my CD, The Real Story!, I wanted to use Dave Mallett's The Garden Song. I found his e-mail address, and told him I was doing a small-run, personal CD and would like to use it, and how much would make it okay with him?

I never heard a word.

I also wanted to use two songs by Utah Phillips, John Thurman and another, the name of which won't come to my aging brain at the moment. I wrote him in hard copy, explaining the scope of the project, and expressing my willingness to pay appropriate fees, and how much?

Never heard a word from him, either.

Now, it may well be that their silence could be taken as tacit permission. Or maybe evidence of sloppy business practices. Or something else entirely. I incline towards the tacit permission theory in each case, myself.

In any case, I didn't want to use any of the songs with explicit permission, either freely given or purchased, and I didn't want to bug either of those fine gentlemen, so I ended up not using any of those songs.

If I had been determined to use one of those songs, I would have sent the author a check (certified mail) for the projected number of disks times nine cents, which I understand to be a sort of average rate per song per disk, explaining what it was for and how I figured it. If the author cashed my check, I'd have a contract. If he didn't cash it but was silent, I would have assumed that I had permission without payment.

As I understand it (remember here, I'm not a lawyer), once a song has been issued on record, anyone else can cover it; the author cannot deny you the right to record it. The acceptance of tendered payment or the refusal of payment which you can prove you tendered I think protects you.

I suppose the author (or his representative) could not cash your tender check and come back and say, "You can record, but it will cost you 'X' instead of what you tendered." In that case you'd have to decide whether it was worth what was asked.

Dave Oesterreich