THE JOY OF BUSKING: From left, Jacob Elkin, Ric Becker, David Whitwell and Becca Patterson play on a subway platform.

Thank you for the article in the December issue about subway musicians and the law. I think this is a really important issue, but I also think you left a few things out – namely, the vague discrepancy between those things which are expressly permitted in the MTA rules, and those which are prohibited. Additionally, some practical advice for what to do when confronted by police officers should always be included in a discussion about our legal rights, because in the end, if the police ask you to stop doing something and you don’t, you will be arrested. I used to perform with bands working under the Music Under New York program, and even with a permit, the MTA advised you that if the police asked you to stop, you had to stop.

The rules actually seem confusing and a little contradictory. While they specifically allow “artistic performances, including the acceptance of donations,” they also expressly forbid “commercial activities includ[ing] … the solicitation of money or payment for food, goods, services or entertainment.” So, what is the distinction between accepting donations and soliciting money? Also, is there a legal status required for accepting donations, such as being a nonprofit entity?

In the end, it seems like the crux of the matter is that when NYPD officers tell you to stop playing, it is in your best interest to listen to them, because all non-transit activities are only permitted “provided they do not impede transit activities,” and it is at the discretion of a police officer to decide if your activities are impeding transit.

I would like to see some sort of guidelines issued which cover these intricacies of the rules, and some practical advice for dealing with such situations. Not only do we need to know what is legally permissible, but we also need to know at which point our activities become illegal- like if a cop asks you to stop- and how to best act in that situation.

I also want to share a little story with you. Though I am doing very well with gigs these days and have not been busking lately, there have been times in my life when busking in the subways made the different between paying rent and not paying rent. For many musicians out there, it’s an integral part of life. I will never, ever forget the first time I busked.

I was 16, and spending the day in Center City Philadelphia for youth orchestra rehearsals. Each Saturday I would go down in the morning, rehearse from 9 to noon with the Philadelphia Youth Orchestra, then hang around the city until my 5 p.m. rehearsal with the Philadelphia Sinfonia. Now, ever since I was younger traveling down to Philly with my mom, I had noticed street musicians. I remember once when I heard the distant sound of a saxophone and ran two blocks just to find the guy so I could put some money in his case.

So, one random Saturday afternoon with time to kill and no money in my pocket, I decided to put my case out on the street corner and start playing. I just jammed on some jazz standards I knew for about an hour, with no expectations, no pressure, just having fun. I looked down after an hour and saw my case was full of change!! I added it all up and it came to around $12, all quarters. It was not big money, but more than I had ever made in an hour. I promptly blew it all on the biggest ice cream I could at the local Ben and Jerry’s.

A really important seed of knowledge had been planted in my mind: from then on I knew that no matter what happened, no matter where I was, if I had my instrument with me I could entertain people, earn money, and feed myself. Just like that. It was an important lesson I never forgot.

This story reminds me of why it is important for musicians to have a safe and predictable way to busk. Busking is a part of city life, and indeed a part of the historical culture of musicians. Even those of us who don’t have to do it (although there are many of us who love it!) need to understand and support the musicians that choose to earn part or all of their living through busking.

I urge you to continue publishing articles on this subject in Allegro. This is a conversation that needs to happen in the public sphere, and I applaud you for helping the union to be involved.

Trombonist Ric Becker is a member of Local 802.

Under MTA rules, musicians may generally perform on subway platforms and accept donations. See MTA website for details.

RESPONSE FROM SHANE GASTEYER

Thanks to Ric and everyone else who has responded to my article. I agree that musicians need more explicit guidelines of what you can and can’t do as a subway performer, and we hope to publish some follow-up coverage on this issue in Allegro in the future. Ric’s point is a good one; the MTA’s rules on subway performing are sometimes unclear and contradictory, not to mention the inconsistent enforcement of those rules. Of course, even when you are following the letter of the law, the MTA Police sometimes don’t even know the rules concerning musicians (or disregard them altogether). Ric is also correct in noting that it is usually in one’s best interest to comply with police when they tell you to stop playing, since ultimately they get to decide if you are “impeding transit” or not. However, we should recognize that the musician I wrote about in my article has brought a lot of attention to this issue by standing up for his right to perform. Also, it is important to note that one of the reasons a community of performers and advocates came out in support of Andrew Kalleen was that his arrest was captured on video. We should support groups like Busk NY (www.BuskNY.com) that are calling for clarity on these issues from the MTA, and stand in support of a musician’s right to perform in public places in NYC. I am glad to see people engaged in this issue, and if anyone is interested in contributing to future articles on this subject, or if you have suggestions for how the union can be more helpful in this area, please feel free to get in touch with me at Sgasteyer@Local802afm.org.

– Shane Gasteyer,
Organizer, Local 802

RESPONSE FROM BuskNY

Actually, there is no permit for subway performance in New York City – it simply doesn’t exist. Musicians who play for the MTA’s program Music Under New York (MUNY) are issued a promotional banner – but this is not a “permit.” MUNY’s banners are not legally required, nor are they used by the gifted freelancers who provide over 90 percent of all subway performances. My organization, BuskNY, supports MUNY’s efforts to promote subway performance, but we feel there is an ongoing failure by MUNY to inform the public (and the police) that displaying its banner is not a legal requirement. Also, it’s not true that any order by a police officer is lawful. When police officers eject legal performers, it is a violation of their civil rights, as well as a violation of MTA rules. Though performers should use common sense and good judgment to avoid arrest, it’s crucial to note that performers who are wrongfully arrested or ticketed are entitled to compensation through the justice system. No performer should be blamed for an unlawful arrest when performing legally. If Local 802 members are aware of subway performers who have experienced wrongful ejection, ticketing, or arrest, we invite them to contact BuskNY for advice. We are also pleased to mail official MTA rules pamphlets to any performer, in order to promote the dissemination of accurate information about the rules governing the world’s foremost subway performing network. Contact us at www.BuskNY.com.

– Matthew Christian
Director, BuskNY

RESPONSE FROM HARVEY MARS, ESQ.

There is in fact a legal distinction between acceptance of donations and commercial solicitation of money for performance. Acceptance of donations is non-obligatory on the donor. The performer will play regardless of whether or not donations are made. On the other hand solicitation makes performance contingent on payment. The performer will only play if they receive payment. Most buskers will not run afoul of this distinction since they will play irrespective of there being any payment. However, so there is no confusion, it may make sense to have a sign displayed that says donations are welcome and appreciated.

– Harvey S. Mars, Esq.
Counsel for Local 802

If you have any stories of busking – including any encounters you may have had with the police – please e-mail them to Allegro@Local802afm.org. Let’s continue this dialogue and support the rights of all musicians to perform live music.