societies so we actually license their performances in the United States. So a license with all three, [allows a venue] to use virtually all copyrighted music.” All three PROs offer any venue that wants to play music a license. “It’s like a library card,” Lee said. “You can use as much or as little of the repertory as you want, and you don’t have to keep records of it. By having a blanket license, a band can come in [to a venue] and play any song that they want and it’s covered.” Without these blanket licenses, the venue—whether it’s a bar, a restaurant or an ice skating rink—is open to lawsuits brought about by PROs on behalf of their affiliates in the name of copyright law infringement. Under copyright law, anybody who performs music needs permission prior to playing or performing that music, unless it is considered public domain. But chances are very good that any music currently bumping through a popular nighttime venue is not in the public domain. Under the copyright law, listed in Title 17 of the United States Code, works created after Jan. 1, 1978, are protected for the life of the longest surviving author plus 70 years, meaning the earliest they could go into the public domain is the year 2048. Works registered before Jan. 1, 1978, are protected for 95 years from the date the copyright was secured. And anything registered before Jan. 1, 1923, is now in the public domain. So if a venue owner wants to plan his or her playlist around songs like
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I T ’S LI KE A LI BRA RY CA RD, ” LE E SA I D. “ Y OU CA N U SE A S MU CH OR A S LI TTLE OF THE REPERTORY AS YOU WANT, AND YOU D ON’ T HAV E TO KE E P RE CORDS OF I T. ”
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1902’s “Bill Bailey, Won’t You Please Come Home” or 1913’s “Danny Boy,” there’s no need for a blanket license. That might work well at a senior dance, but it isn’t going to fly at a hip nightclub. So those venue owners buy the licenses. Rocci Johnson, co-owner of Humpin’ Hannah’s—a Boise institution for three decades and frontwoman for Hannah’s longtime house band, the Rocci Johnson Band—purchases blanket licenses from all three PROs for a cost of about $5,000 annually. Hannah’s is only open four nights a week now, but back in the ’80s, the place was jumping with live music every day but Sunday. And back in the ’80s, their licensing fees cost them closer to $30,000 a year. “We are charged based on the amount of time that we could be open and utilize music. Like, we open at 3 p.m. and during that time, we have background music,” Johnson explained. “All of the time we are potentially open, we have to pay for the rights to music. Even if we have the radio playing, any kind of background music that is copyrighted, we have to pay for it.” Even karaoke.
The algorithms that PROs use to determine how much to charge is, in part, what makes some venue owners so angry. “They charge for occupancy and for number of seats. Then they qualify that by the number of bar stools and other types of seating,” Johnson said. “Then they have categories of live music. Karaoke is a different charge and a DJ is a different charge.” Since the Rocci Johnson Band is almost exclusively a cover band, not licensing music from all three PROs would be legal suicide. “We do everything above board,” Johnson said. “We’re so high profile, we don’t want to be caught with our pants down. We’ve been in business for 31 years and it’s better to do things the right way.” Hannah’s did at one point try to talk to the PROs to see about lowering their fees but didn’t get anywhere. “It was like they really don’t give a shit,” Johnson said. “They just stonewalled and told us what they would do to us litigiously if we didn’t pay. Do we really want to get caught up in litigation?” And litigation may come from all three
directions. When a bar owner brings in a band, he or she probably doesn’t know exactly what music they will perform. They may be known for their originals, but slip in a cover of Cyndi Lauper’s “Girls Just Want To Have Fun” (ASCAP), Bob Dylan’s “Blowin’ In The Wind” (SESAC) or Lady Gaga’s “Poker Face” (BMI) at the end of the night. By paying for a license from all three PROs, the venue is protected, strange as it sounds, from those performers. Those licenses also cover jukeboxes, digital music services, Muzak, satellite radio, DJs, karaoke and even a business owner’s personal CD collection if he or she chooses to play it during business hours. Kevin Settles, who owns Bardenay, won’t allow his employees to play any of their own music in his establishments. He also won’t let any band who plays at his Eagle location to play cover songs. “We’ve never had live music [at Bardenay] downtown. But in Eagle, Wednesday nights were a little slow and the co-manager out there loved music and asked if we could please have some live music,” Settles said. So they started booking bands to play on the patio. And Wednesday night traffic started to pick up. And that caught the attention of ASCAP. “We got a bill for $8,000. That’s when I said we’re done,” Settles said. And then BMI started calling. “They were calling continually and threat-
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