IP aspects of busking (aka the street performer hoping for donations)

If there were a competition for the worst saxophone player ever, this Kat would be a worthy candidate. Eight years of lessons and a summer at music camp did little to change the bitter reality that when I played the saxophone, it was the aural equivalent of assault and battery. For that reason, perhaps, I have always had a grudging respect bordering on envy for those musicians who set up shop at the local street corner or subway station, empty music case nearby, performing on the musical instrument of choice and hoping for the financial best from those passers-by who might appreciate the musical interlude. Popularly called "busking", such performance by musicians and others in a public space is an integral part of urban, and not-so urban landscapes, around the world. Busking on streets, at least in the U.S. was once a crime, but no longer. The same is now true for busking at a subway station, although the use of amplifiers and the like may still be disallowed. And, as we are reminded, there are those in the law enforcement community who still seem to think that busking requires a permit.

After recently leaving an energetic local busker a suitable donation for his artistic endeavours, this Kat got to wondering about the IP aspects of busking (although Mrs Kat thought my fascination a bit over the top). Before doing so, a word about the economics of busking. As summarized in a recent online post on the subject at priceonomics.com, several factors need to be taken into account by a prospective busker. First, some times of the day are better than others for busking (i.e., they are more profitable). That may seem obvious when one compares 3:00 am with 6:00 pm but it may be less obvious that Friday evening is a much better bet than Monday afternoon. Secondly, treat the busking performance as a business opportunity. "Sort of knowing" the music and words will not do, even if you are performing at a peak busking time. Thirdly, location is crucial. This is more nuanced than it may seem; the challenge is to find a site "where you music fits in". Actually, that should read "sites". No one can make a busking go at it solely by lodging oneself at only one location (otherwise, "you overstay your welcome"). Fourthly, be ready for wide swings in the audience and its receptivity to your music. There are no season tickets for those who might pass by at any given moment. Fifthly, learn the local rules. While busking may not be illegal, it may be subject to local regulations. Finally, busking is also becoming a creature of the online world, which enables a performance to be recorded and shared beyond the confines of the particular public space.

Against this backdrop, perhaps the overarching IP implication of busking is that IP simply seems not to apply, even if rests on the public performance of a (usually) copyright-protected musical work. If the public space is large and fluid enough, it is as if the notion of the public ceases to have practical copyright meaning. This Kat is not aware of any instance in which the owner of a musical work sought to shut down a busker performing his work because the owner did not wish to have his work associated with busking. Moreover, this Kat is not aware of a busker that has received a demand that it pay a fee for having engaged in the performance of a musical work. Compare that with the demand for payment that is made on a radio station simply for having played a recording of a musical work. From the vantage of the busker, in those jurisdictions in which the performer enjoys a separate performer's right, this Kat is not aware of a circumstance in which the busker has sought to prevent the recording of his performance.

The notion of trade marks and branding also seems to play a different role in the busking environment. As noted:

"On the street, except for extreme circumstances, reputation rarely plays a part. You're almost always performing as an unknown" … [busking feels to a busker] "like art in its purest form".

The article goes on:

"The upside to this is that it’s a level playing field. It doesn't matter who your agent is or whether you have a record deal: if you win someone over in the brief window of time they're in earshot, they're yours."

Perhaps this is changing a bit as the impact on social media enables individual buskers to develop their own brands. Still, it is the case that the brand at issue in busking is rarely the person or group that is performing, but busking itself. The rising tide of general public appreciation for the work of buskers in a given locale redounds to the benefit of all. To recall—busking feels "like art in its purest form." Keep that in mind the next time that you pass a busker plying his or her craft.