Some subway performers are reevaluating their venue of choice after a video of the “Dancing is Happiness” saxophonist, John Ajilo, getting arrested at the 34th St Herald Square station went viral earlier this week.
“I don’t want to be down there again,” said 20-year-old Davishmar Hicks who has been playing his saxophone throughout the system periodically since he was sixteen.
It’s been a month since he has been back in a station to play but said, “If that’s how they are cracking down, it honestly is not worth it.”
While Hicks said the video of Ajilo was “sickening” – especially since Ajilo has always been kind to him when it comes to sharing performance real estate in the subway – Hicks still knows that his rights to play in the terminal are “pretty clear, but there are some blurred lines.”
For most performers the gray area around what their rights are in the subway is not only frustrating, but frightening.
While there are a lot of rules for subway performers, there is also more leeway than one might imagine, according to the MTA and interviews conducted by Gothamist with a lawyer advocates, and subway buskers.
The problem: Police themselves are often unaware of the regulations.
“One time I showed the rules to an officer who stopped me and he told me I had photoshopped it,” said Nigel Dunkley, a busking puppeteer.
Here are some of the more important rights and regulations Gothamist was able to verify for the crooners, jazz combos and steel drummers of the MTA.
Do I need a permit to perform?
No. Every musician has the legal right to perform in the subway stations, according to the MTA’s website and court rulings. Even with New York City’s rich history of musicians coming up through busking on the subways, the practice was still illegal until the 1980s. The People v Manning case in 1985 was the first to provide First and Fourteenth Amendment protections to subway performers in New York City. According to court documents, a folk guitarist, Roger Manning, was given a summons for playing on the platform of the BMT line at 59th St and Lexington Avenue. Manning challenged the ticket and won in court.
The reason why some performers and police officers may be under the impression that permits are needed is because the MTA has a specific program, Music Under New York, which was started in 1985 after the court decision. MUNY holds auditions, gives performers an orientation on safety protocol and hands out pink banners to their selected artists for display while they are in the subway. The banner is not a permit, but it can play the role of signaling to police or MTA workers that these performers have a stamp of approval. Advocacy groups, like BuskNY, have criticized the banners for making performers without them feel more targeted by police.
If a non-MUNY performer is scheduled to play in an area where another performer is set-up, the MUNY artist does have the permitted rights to that area based on their scheduled time.
Where can’t I perform?
Performing in a subway car is prohibited, according to the MTA’s rules of Conduct and Fines. Showtimers, doo-woopers, guitarists: all technically not allowed on the cars. If they step back out onto the platform, then yes, they are allowed to perform there. But — and here is where throwing a tape measure into your guitar case could come in handy — buskers are not permitted within 25 feet of a station booth. Less than 50 feet from an authority tower or office? Not allowed.
Don’t set up in front of elevators, escalators, or stairs (even though they do make for a fantastic way to dramatize a ballad or guitar solo) — any place where a performer could be interpreted as “impeding transit services or the movement of passengers.” Also, do not set up by maintenance or construction areas.
Hicks and Dunkley said being up against a wall is normally the safest bet.