Recently, “house concerts” have become extremely popular amongst musicians, especially singer-songwriters. There are even websites that allow musicians to schedule their own house concert tour. For a great description and insight into house concerts from an artist’s perspective check out musician/actor Ari Herstand’s great article here.
But what about the legal issues surrounding house concerts?
To start, let’s briefly examine the term “house concert”. As the term implies, they take place in a “house”. I would not recommend holding a concert in an apartment or condominium. I have had downstairs apartment neighbors complain to me about making too much noise when I feed the cats in the middle of the night (true story). You will absolutely incur the wrath of your neighbors and have the police called if you host live music in an apartment. I do not recommend it. Also, the term “concert” is a misnomer in that I would not recommend having a full band perform at your house, or for that matter any drums or electric instruments. The reasons why will be explored below in my discussion on nuisance law. Further, there is a HUGE difference between a “house concert”, as the term is popularly being used now, and a “house party”. I am not going to give advice on how to throw a house party and avoid having the cops called to your door. Trust me, if you have a full band at your house, kegs, charge admission, and a huge group of people on your lawn drinking and making noise, the police will be called and you will be fined (or worse). A quick personal anecdote to enforce this point.
When I first started playing in bands, we used to play in houses out of necessity. We simply weren’t
talented old enough to get legitimate gigs, so we set up shop in our basement. In college, I lived in a house with several friends and we used to set up our amps, drums and PA’s in the basement. We had a few kegs, charged people a few bucks admission to cover our expenses, turned up our amps till our ears bled, played rock and roll the way it was supposed to be played and generally had an All-American good time. I can also tell you that every time this happened, the police arrived, and that after several months we were eventually evicted from the house. So, this is what happens when you throw “house parties” and choose to ignore the law and the advice of posts such as this. Since I don’t want anyone being fined, arrested, and/or evicted, below are some legal issues to bear in mind so that your next house concert goes smoothly for everyone. (typical caveats apply-I’m licensed in Nevada so I’ll discuss Nevada laws. Also none of this should be construed as legal advice. Always speak to a lawyer for legal advice).
DO I NEED A BUSINESS LICENSE?
Well, that depends. Are you operating a business? For Las Vegas residents, Clark County describes a business as “any…activity engaged in… for the purpose of gain, benefit or advantage, either direct or indirect”. In Nevada, NRS 76.020 (a) defines a “business” as “any person, except a natural person, that performs a service or engages in a trade for profit”. (Note- a “natural person” is simply legalese for a human being) Assuming that you have not created a company, LLC, or corporation for the occasion, then the next question is “are you engaging in a “trade for profit”? This is a factual inquiry-are you selling tickets, advertising the show, and selling food/drink at your house? Do you have a sign out front? Are you keeping a large amount of the money in the proverbial “hat” for yourself, thus making a “profit”? If the answer to any of these is yes then there’s a good chance you are a business. The more sophisticated an “operation” you are running the more likely it will appear that you are, in fact, operating an unlicensed concert venue out of your basement. There’s a big difference between inviting friends over for dinner, having someone play a show, then passing around a hat at the end and actually running an illegal concert venue out of your basement.
Note- the above applies to the host of a house concert. The ARTIST, however, should absolutely be paid for the concert, and should sell merchandise at the show. Just remember to document your income for tax purposes. We’ll address this issue from the artist’s perspective in a further post.
As a point of reference, in 2009 the City of Raleigh, North Carolina ruled that Bett Padgett’s house concerts constituted a business even though she didn’t sell tickets, make any money or try to, and spent her own money on refreshments. The city’s “Board of Adjustment” (whatever that means) determined that more than 3 concerts a year constituted a business. So if you are hosting more than 3 house concerts a year I would suggest speaking with an attorney to determine whether you are a business or not.
There is a big difference in having some friends over to your house to listen to someone play some songs on a guitar and operating a speakeasy out of your basement. Keep it simple, uncomplicated, and profit free and you should be fine.
DO I NEED A PERMIT? IS THIS A SPECIAL EVENT?
Anyone who has planned an event in a public area knows that there are licenses and permits necessary to have public gatherings such as concerts. Additionally, there are licenses required if food and/or drink are being provided. For instance, Clark County Municipal Code 8.20.270 requires a license “to sell, serve, allow consumption, give away or distribute” any kind of alcohol. But is a house concert a special event? Do I need to get any permits?
Clark County Code 16.06.010 defines in pertinent part a special event as “any…special activity which may include but not limited to block parties or grand openings which require the temporary closure of any public street or right-of-way”. So be careful that your house concert is does not fall into the “block party” category. The key in Clark County Code 16.06.010 is whether any streets or right-of-ways are blocked. Make sure your guests are legally parked in a manner that does not obstruct anyone’s property or driveway and you should be able to steer clear of “special event” designation. If possible make sure that your guests are gathered in your house and not in a large crowd outside.
Check your homeowner’s insurance policy. Does it provide coverage in the event that someone is hurt on your premises as part of a social gathering? If not you could be liable, especially if the injury was caused by some sort of defect on your property. There are many homeowner’s policies and they are all different so read the fine print and consult with your insurance company. Check your house and yard for any potential liability issues (holes in the yard, broken stairs, etc.) and fix them beforehand. Remember whatever might happen can and will so be prepared in the event of an accident. This is probably a good time to address the next topic-alcohol.
If you are hosting a house concert there’s a good chance alcohol will be present. Who doesn’t want a cold beer while listening to some great music? A few things you should be aware of in Nevada.
Nevada is fairly unique in that it has no “dramshop law”. Many states have such laws that place liability upon establishments that sell alcohol in the event that one of their patrons gets drunk and does something stupid. You can probably imagine why a State who practically built their economy on plying people with free liquor in order to allow them to get drunk and be stupid (What happens here stays here!) would not want such a law on the books.
Officially, Nevada subscribes to the “nonliability principle”, that “individuals, drunk or sober, are responsible for their torts”. Rodriguez v. Primadonna Company, 216 P.3d 793 (Nev., 2009) As such commercial liquor vendors cannot be held liable for damages related to any injuries caused by the intoxicated patron, which are sustained by either the intoxicated patron or a third party. Id.
But what if you are not a commercial liquor vender? Do Nevada’s protections apply to social hosts as well? NRS 41.1305 states that “no liability” is imposed upon a social host if the person served is 21 years of age or older. In “certain circumstances”, however, a social host may be liable for the actions of an intoxicated person “if the person served is under 21 years of age”. NRS 41.1305 gives some complex and detailed descriptions of when liability is imposed upon a social host for the actions of an intoxicated minor. I’ll spare you a full blown analysis in order to simply state that a little common senses goes a long way-don’t serve alcohol to anyone under 21. Period.
But what if a guest becomes drunk and unruly? Can I kick him/her out of the house. In Nevada, yes, so long as you “act reasonably under the circumstances. Billingsley v. Stockmen’s Hotel, 111 Nev. 1033 1037, (1995); see also NRS 651.020. As an interesting aside, in Billingsley, an “intoxicated and belligerent” patron was led by security personnel “backwards by his lapels through the doors”, whereupon he fell, and broke his ankle, and THEN was placed in a “choke hold”. Needless to say the Court did not consider this reasonable.
So long as you use reasonable force in kicking out a drunk person from your home, you are not required to consider their “level of intoxication in order to prevent speculative injuries that could occur off the proprietor’s premises.” Rodriguez v. Primadonna Company, 216 P.3d 793 (Nev., 2009)
Interestingly, the Rodriguez case noted that in California, a social host does not have a duty to provide alternative and safer means of transportation to an intoxicated social guest who was ejected from the premises. See DeBolt v. Kragen Auto Supply, Inc., 182 Cal.App.3d 269 (1986).
So to recap, some common sense applies here. Don’t allow anyone under 21 to drink. If someone gets drunk and unruly, you have the right to ask him/her to leave and can kick them out of your house so long as your actions are reasonable. A bit of cautionary advice however-despite some of the apparent protections afforded by the case law cited above, basic courtesy and morality dictate that you shouldn’t let a drunk person loose to possibly injure others. Use some common sense and order a cab for the intoxicated person and send the unruly guest home. Or find another guest to take him/her home. There are various Designated Driver apps available, also a list of such services is available here. While the law affords you a certain degree of insulation from liability as a social host, nobody wants an intoxicated guest hurting themselves or others. So be smart, considerate, and think of others.
If you are having a group of people over to your house, then you should be aware of noise and nuisance issues and take steps to prevent them. Whether it’s loud noises, large amounts of people outside, or cars parked on the street, there’s always the possibility that a neighbor could call the police. Take all of this into account when planning the house concert. For instance, it is a solo musician or a full band? Is the concert unplugged or electric? Do you own a PA? Where will people park, and where will they congregate once they arrive? Here’s some basic info on nuisance law to be aware of when making your plans.
NRS 40.140 (1) (a) defines “nuisance” as “anything which is injurious to health, or indecent and offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” As you can see this is a fairly broad definition. The keys here are “obstruction to the free use of property” and “interfer[ence] with the comfortable enjoyment of life or property”. Don’t allow people to park their cars in a way that blocks your neighbor’s driveways or access to the street. This is a quick way to guarantee that a neighbor will call the police. Further, don’t allow your house concert to “interfere” with your neighbors “comfortable enjoyment of life or property”. This includes noise- loud blaring music is another sure way to get a visit from the police. My suggestion is to keep your house concert acoustic. If possible refrain from microphones and amplifiers save for maybe a small practice amp at a low volume. Try to avoid drum kits and electric bass amplifiers. These have bass frequencies which can be heard and felt by neighbors. While this may sound like a lot of limitations on an artist, from an artistic perspective it’s consistent with the intimate nature of a house concert. From a legal perspective it’s an easy way to make sure there’s no noise booming out of the house.
Anyone who follows the news in Las Vegas knows that Homeowner’s Associations (HOA’s) can be very powerful and influential organizations. They typically have their own set of rules and a handbook that lists them. Make sure you read through your HOA rules with regards to the above issues (parking, noise, crowds, etc.) in order to avoid a “nastygram” in your mailbox with a possible HOA fine. While I have tried to address some of the pertinent laws with regards to house concerts, I like to joke that HOA’s operate “above the law” (at least they think they do) and might fine you for an arbitrary reason. So dust off the HOA guidelines and make sure you are within your rights.
PERFORMANCE RIGHTS ORGANIZATIONS
If you’re familiar with performance rights organizations, then you know that there’s a good chance you’ll hear from then before you hear from the police. Performance rights organizations (“PRO’s”) such as BMI, ASCAP, and SESAC collect live performance royalties for their artists. Speak with the artist who is playing and determine if he/she is a member of any performing rights organization. Also, find out if the artist typically registers his/her set list (many savvy artists do). If the answer to both of those questions is “yes” then do some you should definitely go to that organization’s website and read the information regarding live performance royalties and licenses. Also find out if the artist is going to play any cover songs. A singer-songwriter playing original music will generally fly under the radar, but if an artist performs a great cover song and someone uploads it to the internet, then PRO’s might take notice and attempt to collect licensing fees. One way to control this is to ask the artist to play ONLY original material. I know that ASCAP allows you to obtain licenses which permit music to be played at your venue.
The key is whether the PRO’s determine that your house concert is a “public performance”. If the PRO thinks the house concert is a public performance, they might attempt to collect hefty fees. ASCAP defines “public performance” as “one that occurs in a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.”
So there you have it. Per ASCAP’s definition, keep your house concert limited to a small number of family and friends and, per their definition, there is no public performance. ASCAP also states that a a public performance occurs when “the performance is transmitted by means of any device or process (for example, via broadcast, telephone wire, or other means) to the public. In order to perform a copyrighted work publicly, the user must obtain performance rights from the copyright owner or his representative.”
As such I would not recommend uploading the video to the internet, live streaming, or anything of that nature. Enjoy the moment for what it is.
The issues of PRO’s, house concerts, and public dissemination of videotapes performances are complex subjects that I will probably explore in a later post. In the meantime here is an excellent article about ASCAP targeting house concerts in order to collect royalties.
Bearing in mind the above, here are a few final tips.
–DON’T charge admission or sell tickets. If you do you could trigger the requirements for business licenses and lots of other annoying paperwork. There’s also fees involved and the state will want to collect them from you.
–DON’T have your guests park in a way that obstructs your neighbor’s driveways or right-of-ways.
–DON’T advertise for the show or have permanent signs out front.
–DON’T sell alcohol! Guests can bring drinks or you can have food drinks available. Just make sure anyone drinking is 21 or older.
–DO keep the crowd small and manageable
–DO ensure that the music is just loud enough to enjoy but not loud enough to be a nuisance.
–DO “pass a hat around” to pay your artist
–DO speak with the artist beforehand regarding the various details and if possible have a signed contract
Ultimately, ask yourself what is your motivation for hosting a house concert? If the answer is money then you are not hosting a house concert but an unauthorized music venue out of your house. I certainly have no problem with someone wanting to operate a concert venue out of their home, just be aware that you need licenses and permits to do that. Remember by definition a house concert is a business if it turns a profit. If you are hosting a house concert because you enjoy live music, in the comfort of your home, surrounding by a few close friends who you can share the experience with, then hopefully you should be able to enjoy this experience without the paperwork and hassle of actually running a proper concert venue. Think of the house concert this way-imagine that you host a dinner party for a small group of friends. You supply some food and drink, the guests might bring some appetizers and drinks, and everyone eats and has fun. After dinner, everyone listens to the new album from your favorite artist, has a drink or two, socializes then goes home. Now imagine this scenario, but instead of listening to an album, the actual artist is in your living room playing. That is a house concert. Bear that anaology in mind when you are planning. I cannot guarantee that you won’t open yourself up from some sort of legal dispute, but I can state that in the event you are in a legal dispute over the nature of your house concert that courts analyze matters on a case by case basis and heavily scrutinize the facts of each particular case. Make sure the “facts” of your house concert are consistent with applicable rules and laws. Most importantly, enjoy the experience!