Is Busking Legal in USA

[RTW]

I posted a concern on Busking & the demise of Open Mic in USA on another thread, but it got no traction. Here is a LINK to a real world experience of an accomplished accordion player's experience in Houston TX published in 2022 If it can happen here, it can happen anywhere!

Victory! Busking now legal in Houston

Accordionist Tony Barilla has successfully overturned Houston’s busking ordinance, with Pacific Legal Foundation's help.

pacificlegal.org

Regards,
RTW

P.S> the street musicians and Open Mic performers didnt have a seat at the table when the copyright law was revised

P.P.S if you google this topic for an answer/ explanation as to ones options to contest prohibition, you will be diverted to answers from Attorneys representing the Copyright Companies . Thus a waist of time, just sayin

 

[murathan]

Some say some buskers earn a lot of money which possibly not true. U.S. is about to make illegal the homeless people. Difficult to argue with law.

 

[Dingo40]

All I can say is in my home state (in Australia) busking is currently still legal but there are some basic rules.
No licence fee currently.

 

[Tom]

I don’t think there is uniformity at all throughout the US. I suspect that in most places, it’s up to the municipality (city, town, village). If the buskers are seen as beggars, or overly aggressive the municipality will consider a local law banning busking and/or requiring a license. In some municipalities the police or other authorities will make this decision, regardless of local restrictions. Never a pretty site.

In tourist areas, such as where I live, busking is viewed as quaint, and tolerated, if not encouraged. I have never had a license, or been asked for one. If the busker is polite, actually playing, and not bothering anyone, no problem. Every place is different.

 

[debra]

I don’t think there is uniformity at all throughout the US. I suspect that in most places, it’s up to the municipality (city, town, village). If the buskers are seen as beggars, or overly aggressive the municipality will consider a local law banning busking and/or requiring a license. In some municipalities the police or other authorities will make this decision, regardless of local restrictions. Never a pretty site.

In tourist areas, such as where I live, busking is viewed as quaint, and tolerated, if not encouraged. I have never had a license, or been asked for one. If the busker is polite, actually playing, and not bothering anyone, no problem. Every place is different.

That applies not only to the US but in most countries. In some areas you do need a license, from which supposedly royalties are paid to the collecting body of that country. Most buskers do not play only music that is in the public domain (meaning, of which the composer died ages ago), and whether the organization that collects royalties actively tries to get buskers to pay or not may vary a lot from country to country.
The rules set out by municipalities are more about where and when busking is allowed so as to not be a problem for tourists and residents. (In Castelfidardo, Italy for instance it is more strictly regulated than say in Rome, for obvious reasons...)

 

[OuijaBoard]

You must research and ascertain the laws and regulations not just in your state, but within an individual county, and sometimes within the individual municipality. They differ. Licensing requirements, registration requirements, fees, time/place/distance/density rules, etc. They can vary even from county to county or from city to city.

 

[Xiane]

I posted a concern on Busking & the demise of Open Mic in USA on another thread, but it got no traction. Here is a LINK to a real world experience of an accomplished accordion player's experience in Houston TX published in 2022 If it can happen here, it can happen anywhere!

Victory! Busking now legal in Houston

Accordionist Tony Barilla has successfully overturned Houston’s busking ordinance, with Pacific Legal Foundation's help.

pacificlegal.org

Regards,
RTW

P.S> the street musicians and Open Mic performers didnt have a seat at the table when the copyright law was revised

P.P.S if you google this topic for an answer/ explanation as to ones options to contest prohibition, you will be diverted to answers from Attorneys representing the Copyright Companies . Thus a waist of time, just sayin

Ordinances for busking will vary by city, even areas within a city (as indeed they do in Houston's messy laws on the matter), or county, or possibly state. There is no national law on the subject I'm aware of. Is busking "speech" - that's an interesting question. Is busking fair use? I'd argue that it is, as there's no element of ongoing attempt to sell copyrighted material.

This case doesn't hinge on copyright, but rather city ordinances for where, when and how one might busk. Since busking is allowed in one area of the city, it's going to be hard to justify an outright ban.

Interestingly, the Houston case IS a Federal case. Which might be good news for anyone wanting to challenge laws around the country, as you might be able to claim (amusingly) federal premption on the matter of busking. I'll read it and see how the Houston law was challenged federally. (see below)

Anyone who wants to busk outside in Houston for about 8 months of the year, well, God bless them.

 

[Xiane]

That applies not only to the US but in most countries. In some areas you do need a license, from which supposedly royalties are paid to the collecting body of that country. Most buskers do not play only music that is in the public domain (meaning, of which the composer died ages ago), and whether the organization that collects royalties actively tries to get buskers to pay or not may vary a lot from country to country.
The rules set out by municipalities are more about where and when busking is allowed so as to not be a problem for tourists and residents. (In Castelfidardo, Italy for instance it is more strictly regulated than say in Rome, for obvious reasons...)

Ok, but the idea of dozens and dozens of accordion players busking in Castelfidardo is kind of charming. Maybe for a couple of days a month, anyway.

 

[Xiane]

"Today In Accordion Legal Matters"

So the Barilla v Houston case is not firmly settled for Barilla. It is remanded to the lower court to reconsider, as the case was dismissed previously for lacking standing, and lack of injury. The higher court found standing, and found the possibility of injury (in the form of a threat of enforcement on what (they don't exactly say but to me, imply) is an unclear, and untenable law.

Odds are the lower court will now find in Barilla's favor, but not necessarily. Meanwhile no accordion-friendly or busking-friendly precedent has been established, merely the possibility of one. I'd imagine the court will rule for Barilla and tell Houston to clean up its law. Houston's argument about "transport safety" is laughable to me. Maybe the lower court will be bold enough to suggest a standard for such laws, but I doubt it.

I'd speculate that there's an element here involving the homelessness problem. If there is absolutely NO legal requirement/permissions in order to busk in Houston, versus a minimal one, various homeless people might well claim their begging is "busking". Houston has been among the most successful US cities in dealing with the homeless problem in a way that's both humane and pragmatic, and I'd imagine behind a lot of what they're doing is an attempt to keep things moving ahead on that front. Houston offers shelter for homeless people, and if shelter is available, they may not refuse it and remain on the streets. A sweeping "busking" reform might change that, so I'd imagine Houston will offer a solution that is a minimal fee, but a license that's frequently renewed, busker required to display license at all times, etc.

 

[RTW]

Excellent and informative responses on Busking. I would like to hear feedback on "Open Mics" that are being closed or ended in USA due to threating letters to sue the small business establishment for allowing musicians to play Cover songs unless a fee is paid to one of the three major copyright overseers, ie ASCAP, BMI and Sesac ( or all three). It seems my Google searches get funneled to opinions from those that represent the interests of the three copyright overseers and bias in my opinion. I believe an exception was carved out in copyright law under "Fair Use", but unclear if Open Mics qualify - so long as nothing is being recorded?

Regards,
RTW

 

[Tom]

Excellent and informative responses on Busking. I would like to hear feedback on "Open Mics" that are being closed or ended in USA due to threating letters to sue the small business establishment for allowing musicians to play Cover songs unless a fee is paid to one of the three major copyright overseers, ie ASCAP, BMI and Sesac ( or all three). It seems my Google searches get funneled to opinions from those that represent the interests of the three copyright overseers and bias in my opinion. I believe an exception was carved out in copyright law under "Fair Use", but unclear if Open Mics qualify - so long as nothing is being recorded?

Regards,
RTW

This is a good question and I don’t know the answer. The local open mic here that I have been to also plays music so must have some awareness of the copyright issue. Maybe the musicians are covered by some agreement? I will ask next time I go. Again, probably up to whether anyone “complains.”

 

[RTW]

P.S I believe its not just coffee shops, restaurants and bars subject to copyright infringement for playing live music, but includes all establishments open to the public, i.e. Nursing Homes, Retirement Community Rooms even though no charge or fee is involved. I know the last two venues mentioned are favorite places for accordion players to perform.

Regards
RTW

 

[mtj]

Ordinances for busking will vary by city, even areas within a city (as indeed they do in Houston's messy laws on the matter), or county, or possibly state. There is no national law on the subject I'm aware of. Is busking "speech" - that's an interesting question. Is busking fair use? I'd argue that it is, as there's no element of ongoing attempt to sell copyrighted material.

This case doesn't hinge on copyright, but rather city ordinances for where, when and how one might busk. Since busking is allowed in one area of the city, it's going to be hard to justify an outright ban.

Interestingly, the Houston case IS a Federal case. Which might be good news for anyone wanting to challenge laws around the country, as you might be able to claim (amusingly) federal premption on the matter of busking. I'll read it and see how the Houston law was challenged federally. (see below)

Anyone who wants to busk outside in Houston for about 8 months of the year, well, God bless them.

Busking of copyrighted material is not fair use. For the USA you can read the wikipedia article on fair use. There is a four part test, but in general fair use is for educational, research, parody, review, commentary or transformative works. It does not matter if you charge or make money off the performance, or not, so as noted by RTW performing songs with a copyright for free at a nursing home is infringing.

I'm not a lawyer or giving legal advice.

 

[Ventura]

fortunately, in the Health Care setting, you can easily get away with
playing all public domain material (they are old enough to
remember them)

 

[RTW]

By Ventura:
fortunately, in the Health Care setting, you can easily get away with
playing all public domain material (they are old enough to
remember them)

By RTW: I think that statement makes a reasonable legal argument that a Judge just may sign off on for its creativity!

Regards,
RTW

 

[RTW]

Has anyone ever been sued, given a cease-and-desist order or even busted for performing / busking on street corners or in other outside public places such as parks performing Cover songs in the USA =-specifically by one of the three copyright overseers? (NOT as it relates to town / city ordinance violations or Municiple licensing violations) These organizations have no independent police power and it would be considered a civil matter, even if they contacted police. In conclusion, at least as it pertains to Busking, I suggest just do it respectfully and ignore threats by the copyright police should they show up , then laugh them off, but please don't get confrontational. Sadly, the public performers did Not have a seat at the table when the copyright laws here in USA were updated over the years by government

Regards,
RTW

 

[Ventura]

over here they usually do not confront buskers or performers,
but they do have agents with a specialty of "name that tune"
natural ability.. they then list and send you a bill/fine that is legally
enforceable and you are stuck.. they forward info to the IRS from
any investigating they do on individuals

they prefer to hit the deeper pockets of the venue owners/managers
with a licensing offer

if a venue has a MUZAK license/arrangement, this typically
includes occasional live performers so that special events,
weddings, and such are covered

 

[RTW]

By Ventura:
over here they usually do not confront buskers or performers,
but they do have agents with a specialty of "name that tune"
natural ability.. they then list and send you a bill/fine that is legally
enforceable and you are stuck.. they forward info to the IRS from
any investigating they do on individuals


By RTW: I believe you are referring to a Brick and Mortor business and NOT street performers getting bills/fines from copyright organizations - and the IRS notice sounds completely bogus, if not laughable . Civil matters are adjudicated in Civil Court

Happy Busking

Regards,
RTW

 

[Xiane]

Busking of copyrighted material is not fair use. For the USA you can read the wikipedia article on fair use. There is a four part test, but in general fair use is for educational, research, parody, review, commentary or transformative works. It does not matter if you charge or make money off the performance, or not, so as noted by RTW performing songs with a copyright for free at a nursing home is infringing.

I'm not a lawyer or giving legal advice.

I understand the test, but I'd still argue it with some confidence. Should I be doing that, which I'm not.

That's the thing about the law, sure, here it is, but you can always make an argument. Online articles are a good starting point, but it's useful to understand that whole floors of giant law libraries are devoted to one subject, and its interpretation in various circumstances (tax, mostly tax). Law is tedious and complicated because life is tedious and complicated.

Hypothetically, in the case of the four part test one might argue that literally nothing a busker does would ever infringe on part four. It would have to do with not being a scheduled event with tickets sold, random passer by, not even hearing a whole song, etc.

Could the person making the claim of unfair use point to just how much money was thrown into the hat for that one song, specifically? If it's no money, what is the injury? I understand the charging money part, but if you want damages, you have to show injury, typically. If no monetary damages, you're probably talking "cease and desist". If they say "Buy a license." you could argue "Ok, what's the license fee for one tune, this really old one? I don't want all your songs."

Also one can't treat the busking as one performance, as nobody sticks around for all of it, there's no set time, place, etc, pretty much. So maybe the money was for public domain material. The point is to distinguish some guy with an accordion on a corner from a giant nightclub.

One could make an argument that might prevail on literally all the points of the test, distinguishing busking from what the law was actually intended to prevent, not what it might, without equity, be applied to. Might win, might not. Real study of the case law and precedent would be necessary either way.

It's not that you can't argue these things and win, it's that most people don't have the time, patience, energy and money to do it. Particularly buskers.

Since the accordion is so derided in the US, you could argue that ALL performance falls under "parody".

It's going to be interesting to see what copyright law in the US looks like after all the AI cases.

 

[Xiane]

over here they usually do not confront buskers or performers,
but they do have agents with a specialty of "name that tune"
natural ability.. they then list and send you a bill/fine that is legally
enforceable and you are stuck.. they forward info to the IRS from
any investigating they do on individuals

they prefer to hit the deeper pockets of the venue owners/managers
with a licensing offer

if a venue has a MUZAK license/arrangement, this typically
includes occasional live performers so that special events,
weddings, and such are covered

In the case of wineries where I live, the wine industry group has successfully fought this kind of thing to a standstill. It took several years, but this is why common interest groups can be useful. It's complicated, but part of it was fighting the "law suit mill" nature of the enforcement. One thing that was done was to drag the licensing industry group to court for every. single. filing. This makes it less of a riskless profit center for the licensing businesses, and also really makes the courts hate them. Not that the courts would ever be that way...

Another part was setting up scheduled tastings, ticketed everything, even if the tickets are free. Then you make a claim that the licensing lawsuit mill contractor trying to send a bill had no right to be there, thus can't enforce, and is subject to a trespass claim, false pretenses, etc. Since the people who do this stuff tend to be bottom feeders, they don't want that. That doesn't really work for busking, of course.

I think there's now a blanket license the industry pays, and it's not that high.