Gigs – Jazz and the cabaret laws in New York City by Paul Chevigny

Abstract

On 10th July 2003, the Licensing Act 2003 received Royal Assent in the United Kingdom, delivering New Labour’s promised overhaul of licensing. However, contrary to hopes and expectations, this legislation reversed one of the most important exceptions to public entertainment licenses for live performances: the ‘two in a bar rule’. It permitted unlicensed performances by no more than two musicians in liquor licensed venues. The UK’s new legislation introduces, in effect, anone in a bar rule’, meaning that most venues will require entertainment licenses to provide any form of live music. This was and remains a very controversial move, in advance of which the legislature would have done well to consider the development of equivalent legislation in New York.

How to Cite

Edwards, P., (2016) “Gigs – Jazz and the cabaret laws in New York City by Paul Chevigny”, Entertainment and Sports Law Journal 4(3), p.7. doi: https://doi.org/10.16997/eslj.84

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On 10th July 2003, the Licensing Act 2003 received Royal Assent in the United Kingdom, delivering New Labour’s promised overhaul of licensing. However, contrary to hopes and expectations, this legislation reversed one of the most important exceptions to public entertainment licenses for live performances: the ‘two in a bar rule’. It permitted unlicensed performances by no more than two musicians in liquor licensed venues. The UK’s new legislation introduces, in effect, a ‘ none in a bar rule’, meaning that most venues will require entertainment licenses to provide any form of live music. This was and remains a very controversial move, in advance of which the legislature would have done well to consider the development of equivalent legislation in New York.

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Introduction to the New York Jazz Scene

 

It is now taken for granted that, if customers want it and proprietors can afford it, there will be live music in New York clubs. However, from 1926, those clubs were subjected to ‘cabaret’ licensing: a collection of local regulations which restricted the playing of live music in bars and restaurants. Even if a club could overcome the bureaucracy, a cabaret license came at a cost – often prohibitive for the small clubs in question. Yet, for jazz, these were, and remain, the most important venues to showcase new talent. These licenses forced jazz clubs either into illegal performances, or out of business. Many venues simply refused to house musicians. In consequence, certain styles of music were driven out of town or underground. The problems for live music were compounded by zoning restrictions, introduced at the same time as the cabaret licences.

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Gigs documents the bringing of a suit against New York City, a case which was ultimately successful in having the ‘three in a bar’ rule, which was in force in the 1980s, struck down. Over the years, exemptions to the different regulations in New York had sprung up, relating variously to the number of musicians playing, the nature of the venue and the type of instruments on which they played. Chevigny explains systematically the flaws in the various justifications offered for each, and for the continued regulation.

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It is necessary to note at the outset that, whilst the successful outcome of the suit was unarguably a considerable achievement, the first amendment action which is the legal pinnacle of the book was hardly a landmark Supreme Court case. Rather, the action was brought in the State court, and did not even go to trial – the successful decision was made on summary judgment (albeit this was on the City’s application). The effective moment of change came in 1990, when a statutory cabaret licence exemption was created for venues with an audience capacity of no more than two hundred. Nonetheless, the judgment, alongside relentless lobbying, had an influential role to play.

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One of the most attractive stylistic features of this work is the way in which Chevigny builds up a picture of the jazz scene over the decades, offering glimpses of clubs and musicians. The book is rich in quotes and anecdotes from politicians, lawyers and musicians, recounting their experiences and giving first hand insights into the world of jazz. Thus we see how the original Harlem clubs bred fervent camaraderie, housing only those with a true passion for the music: ‘The tables were three inches square and the chairs were hard wood. The drinks were probably watered. They were miserable places. There was nothing to them but the music.’

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Throughout, Chevigny recognises the deep-seated prejudice underlying the discrimination. The old apprehension about the ‘jazz crowd’ was rooted in racism and a fear of the ‘hip and oppositional’. These clubs were thought to attract people of a ‘lower type’. The author also notes the fact that government regulators were guilty of assuming that all jazz bands and clubs were economically strong and could thus withstand a little regulation.

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Chevigny’s rational analysis of the history of cabaret licensing almost makes its haphazard and unprincipled development seem logical. His political chronology highlights clearly where the real problem lay: power. Despite the musicians’ arguments, politicians simply would not take the risk of annoying constituents or other politicians. Thus the reader is led through set-backs and small victories, haphazard enforcement and sheer victimisation, until she arrives at the constitutional success.

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The Legal Change

 

The account of the First Amendment action is brief but enjoyable. The reader is made party to many of the considerations which faced the petitioners, including the factors which influenced both their choice of court and the framing of their arguments. The legal arguments themselves are well set out, although of course were never tested in the context of a trial.

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This does not, however, diminish the importance of the outcome, or the significance of the ultimate legal change. In examining the subsequent process of change, the author is under no illusion that the judgment had any legal force. Rather, he describes the most effective use to which the piece of paper could be put, namely as a tool of political and social persuasion. Indeed, Chevigny acknowledges freely that a number of significant changes in administrative practice over the century were founded more on social attitudes than any clear-cut change in legal norms.

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Moreover, Chevigny illustrates his awareness of a central danger in any narrowly ‘legal’ struggle: that it will become a drive for those gains that the political system is most likely to yield. Thus, perhaps more beneficially, the judgment was used to focus the attention of the increasingly influential media on the cabaret laws. Chevigny’s inclusion of newspaper editorials is particularly revealing, showing how they reflected the complete reversal of public opinion. During the course of the campaigning, mainstream papers, such as the New York Times, completely reversed their oppositional stance against jazz musicians.

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How much effect the judgment and associated lobbying in fact had is left open to question. At certain points, Chevigny is quite clear that the results of the whole process were ambiguous, noting that the main reasons for the ultimate legislative success were a shift in administration and an economic downturn in the city. Yet the overall tone of the book paints a slightly more self-approbatory picture.

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Weaknesses

 

For the most part, Chevigny has an enjoyable writing style. He explains each stage of the legal process with an admirable clarity and succinctness, rendering it accessible to any non-lawyer reader. Equally competently, though at somewhat greater length, he verses the non-musical reader in the terminology and lifestyle of jazz. The ease and evident pleasure with which he does the latter demonstrates his love of the music, but also reveals his pride in his own knowledge – a recurrent feature which has a tendency to become obtrusive.

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This is indeed the book’s greatest weakness. It is perhaps most apparent in a later chapter, entitled ‘ The Lives of Musicians’. The attraction of this chapter is the seemingly wide array of insights into the aftermath of the action. It introduces a pleasant symmetry to the book by mirroring the early chapters, as it examines the effects any changes had on individual musicians. The fragmented style may be seen to reflect the diverse lives in question – the jazz scene in New York is, after all, hardly a specimen readily amenable to investigation or quantification.

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However, a more accurate characterisation might conclude that the chapter is overly concerned with portraying the extent of the author’s contacts and involvement in the jazz scene. The selection of musicians appears to be entirely random: there is no sense of coherence, nor any indication of how each example relates to the next. The chapter begins and ends with quotations from parties previously unknown to the reader, with little attempt to offer explanatory narration or argument along the way.

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The difficulties continue into the final chapter. Within an opening section entitled ‘Social and Political Processes’, Chevigny proceeds to indulge in a somewhat repetitive chronology of the past century, apparently ‘“ naturaliz[ing]” and domesticat[ing]’ the preceding chapters. It is open to doubt whether he makes any new observations which could not have been woven throughout the rest of the volume. The chapter gives a slight impression, a cynical voice might suggest, of a need to pad out an expensive tome.

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Further, at both the beginning and end of the book, Chevigny makes unsatisfactory forays into legal theory, and the relationships of music and law with modern society. His coverage of the area is not only thin but lacks coherence. Through a confused discussion of institutional autonomy, he attempts to question the premise that law cannot have the same social independence as art. His conclusion, unsurprisingly, is that changes in the law must occur within an institutional framework and must be relatively incremental. This is in clear contrast to art, where escaping institutionalised forms of expression and subverting contemporary ideas is often the aim. Sadly, Chevigny’s conclusions regarding law might be better gleaned from the introductory pages of a work on jurisprudence.

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A final issue to mention is the price of this book. This might be more easily justifiable if this second edition did more than incorporate a new preface and introduction (by others), and a two-page afterword by the author. A scattering of careless editing slips compounds the sense of poor value.

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Conclusion

 

Lying at the intersection between legal regulation and musical expression, this book should appeal to lawyers and musicians alike. An even wider readership might be attracted by the general exploration of forces of cultural repression; the lessons in the difficulties for minorities of bringing about social change can be extrapolated to many contexts. Above all else, the book offers valuable exploration of the issues and interests at stake in the New York jazz scene, and provides eye-opening insights into this exciting world. The criticisms above do not negate the value of a book which has been researched with such diligence and enthusiasm, but they do render it a book to borrow, rather than buy.

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Patricia Edwards

Brasenose College, University of Oxford


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Patricia Edwards (Brasenose College, University of Oxford)

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