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Melissa Potter, Program Officer, NYFA Source This article originally appeared in the Winter 2005 NYFA Quarterly publication. Can I sell my artwork on the street in New York City? What kinds of special permits are required?
Selling on the street is known as vending. Street vending ranges from hot dog carts in Central Park to paintings for sale on the sidewalk outside the Metropolitan Museum of Art. Vending rights have never been a simple issue, but over the past few years a battle has raged in New York City. Eager to control congestion and money flow, city authorities have been limiting the number of streets where vendors can set up shop. Artists have reported police harassment, fines, and even jail sentences. Local businesses and galleries—especially in commercialized neighborhoods like SoHo, a traditional spot for street vendors—have called the police in an effort to remove vendors from the sidewalks in front of their stores.
Artists sometimes forget that the preservation of artistic freedom is a work in progress and needs to be vigilantly defended. In 1994, artist Robert Lederman founded A.R.T.I.S.T. (Artists Respond to Illegal State Tactics), an artist advocacy organization fighting for street vendors’ rights. Lederman was part of the successful struggle to win artists the right to sell artworks on the streets of New York City without a vending license as part of their First Amendment right to freedom of expression. As part of this ruling, they are entitled to eight feet of sidewalk space, as long as it doesn’t impede pedestrian traffic.
The reason this case is so critically important is that the waiting list for street vending licenses in New York City is up to ten years or more, and requires documents that recent immigrants may lack. New York State limits the total number of licenses issued to 853, which is a scant number considering the many thousands of active vendors working in New York City’s five boroughs. The Urban Justice Center’s Street Vendor Project (www.streetvendor.org) is introducing legislation to the City Council that will challenge and hopefully raise the licensing cap.
The Department of Consumer Affairs has a PDF posted on its website entitled NYC Business Solutions (visit http://search.nyc.gov and search for “street vendors”). The document is a general guide to street vending rules and regulations and includes information on participation in street fairs. Pottery, jewelry, dolls, and crafts are listed in the general description of merchandise that requires a license. There is substantial debate concerning which arts and crafts items are protected by New York City’s free speech laws, and artists depend upon pro bono lawyers and legal counsel from organizations such as the Urban Justice Center to argue for their rights to vend. Because of waiting lists and quota restrictions on licenses, artists take a risk whenever they attempt to sell their art outside of officially sanctioned street fairs (in April of 2002, the city removed what it construed to be unlawful art vending spots by throwing the work for sale into garbage trucks).
So how is “art” defined? This is where the trouble starts. Fine art painting, for instance, is legal to sell without a license. Graffiti art and crafts, on the other hand, are up for debate. The Street Vendor Project reports in its website’s litigation section that in April of 2004 two graffiti artists brought a case against the city of New York for police harassment and unlawful arrest for selling their work on the street. The police did not recognize clothing individually decorated with graffiti text and images as works of artistic expression. A federal judge’s ruling allows the artists to continue vending, but the city has appealed.
In another case, a Russian artist named Zivile Kaminskaite was arrested numerous times for vending without a license. Kaminskaite hand-paints Russian stacking dolls known as matryoshkas. Her lawyers argue that while the dolls are of uniform design, each is an individual expression in painting, and therefore protected under free speech laws. As her lawyers write in papers filed in her defense: “First Amendment rights are not absolute; the government may impose restrictions, even in a traditional public forum, so long as they are reasonable restrictions at the time, place, and manner of speech. . . .” Interpretation will likely continue to muddy the waters of this debate for many years to come. It is interesting for artists to note, however, that while a work of art is protected as free speech for being a form of expression, a particular message is not necessary to this definition. In other words, in Kaminskaite’s case, the expression is one of culture, rather than meaning per se.
Vendor rights advocates have argued that the city has been putting a stranglehold on artists by issuing a restricted list of legal streets on which they can vend. Sean Basinski, founder of the Street Vendor Project, notes that with the creation of business improvement districts (commonly known as BIDs) funded and supported by dues-paying property owners, “Residents, businesses, and property owners have had more success in restricting where and when vendors can sell.” During the past few years, city administration has been encouraging street fair vending, considered by some to be a more efficient way of clearing and controlling public sidewalk space. However, other arts proponents have argued that these street fairs are much more of a menace to local communities. Artists can obtain a temporary license for street fairs. This may be the path of least resistance for artists concerned that their goods will not be protected under free speech. A list of city-approved street fairs is available through the Community Assistance Unit at 212.788.7418. For artists interested in a list of streets restricted to vendors, the Street Vendor Project will be posting the information on its website.
Regardless of whether artists obtain a license or are protected by free speech and can vend without one, all vendors in New York City are required to obtain a New York State sales tax number and collect appropriate sales tax (for an article on sales tax in New York State by NYFA Quarterly’s Ask Dr. Art, please visit the For Artists—Business of Art Articles section on NYFA’s website at www.nyfa.org). Obtaining a sales tax number is far easier to secure than any other related vending license.
Artists can join the Street Vendor Project to receive legal assistance, voting rights information, an ID badge, the quarterly newsletter, help with filing police complaints, and a disposable camera and tape measure. The project helps artists by taking photos of their vending locations, going to court on behalf of the vendors, filing appeals, and fighting forfeitures cases.
Contact them at:
Street Vendor Project - Urban Justice Center
123 William Street, 16th Floor
New York, NY 10038
phone: 646.602.5679
or 646.602.5681
For further information on A.R.T.I.S.T., visit groups.yahoo.com/group/nycstreetartists
For more information on vending in your state, please email NYFA Source Live Assistance source@nyfa.org
A regular column in NYFA Quarterly, Ask Artemisia is made possible by the NYFA Source funding consortium. Major support for NYFA Source has been provided by The Ford Foundation. Additional support has been provided by Basil H. Alkazzi; Artist Legacy; Lily Auchincloss Foundation; The Cowles Charitable Trust; The Robert and Helen Gould Foundation; Independence Community Foundation; The Liman Foundation; Virginia Manheimer; The Joan Mitchell Foundation, Inc.; a gift in honor of Eva J. Pape; Pew Fellowships in the Arts; The Pollock-Krasner Foundation, Inc.; The Judith Rothschild Foundation; The Marie Walsh Sharpe Art Foundation; and The Andy Warhol Foundation for the Visual Arts, Inc.
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