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 is honestly 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 in 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.

A photo of a subway performer dancing with a skeleton

A subway performer dances with a skeleton. His use of a speaker is technically OK as he's not on a subway platform.

A subway performer dances with a skeleton. His use of a speaker is technically OK as he's not on a subway platform.
David Giambusso/Gothamist

Can I use speakers?

One attorney said just don’t use them. They are technically allowed, just not on subway platforms (acoustic music is ok there). They can’t be excessively loud or be used during public service announcements. There are also volume restrictions: “Any sound in excess of 85 dBA on the A weighted scale, measured at five feet from the source of the sound or 70 dBA measured at two feet from a station booth.” Roughly translated, that's between the sound of a loud hair dryer and street traffic.

Also, if your act requires any other type of multimedia, like video or a slide show, that is prohibited.

Can I ask for money?

Explicitly panhandling is not allowed, but peppering a guitar case or hat with some dollars hoping it prompts commuters to throw some change in there is allowed. Some advocacy groups recommend putting up a sign with your Venmo or Cashapp to protect against theft.

Selling CDs is technically not allowed, though it's become less of an issue in the streaming era. Handing out promotional goods or materials, like a T-shirt, is also a no-no.

What should I do if I am stopped?

Even if you know you are in the right, under the MTA’s Rules of Conduct and Fines, any one in the subway system has to comply with directives from “any police officer, peace officer or any employee of the authority or the MTA acting within the scope of their employment.” This means moving performance locations or giving identification. Attorneys say performers should comply, especially on the subway platform, where death or injury can occur. But document everything, one attorney said, as there are strong legal precedents for subway performers to successfully sue.

Even with limitations on space and the potential for harassment, musicians like trumpeter Kafele Bandele, say they won’t — and can’t afford – to let the latest incident keep them from playing.

“I have had to start playing more frequently in the subways since COVID closures dried up a lot of gigs and never brought them back,” said Bandele. In recent months, a swath of jazz clubs have also closed, leaving fewer places for musicians to book gigs. Bandele has used the subways for supplemental income for more than a decade since moving to New York City.

“The reason I moved to the city was because it is a vibrant hotbed of culture and performance and the fact that this is happening and people are trying to rip that away makes me so sad," he said.

Correction: Due to an editing error, a previous version of this story mischaracterized the use of video and multimedia in subway performances. Those elements are prohibited under MTA rules.