As spring returns to the east coast, New York City prepares for the return of the costumed “performers” and spangled desnudas who extort tips from Times Square tourists. The city council, working with the NYPD and entities such as the Times Square Alliance, has at last arrived at a kind of solution to the scourge. Zones within the Times Square pedestrian plaza will be demarcated for commercial use, and tourists who wish to take a picture with these artistes will be free to do so. Those who prefer not to be solicited will be assured safe passage.

It’s a sign of how degraded our urban culture has become that people demonstrating no originality or creativity beyond what it takes to put on a tattered costume have bamboozled the city’s leaders into weighing their claims to artistic free speech. Breakdancers, musicians, mimes, or jugglers—even if they are untalented or annoying—at least do something that resembles self-expression. But donning an Elmo or Spiderman outfit and mugging for cameras hardly qualifies as art, and is arguably theft of intellectual property.

If you sell a knock-off Coach bag or a cheap imitation Rolex in Times Square, you’ll likely get arrested. Your goods will be seized and destroyed. Even using the MTA’s subway fonts in advertising or on products will result in the threat of a lawsuit. The transportation agency has its own line of t-shirts and other products. It doesn’t want its brand diluted. Surely Disney or Marvel would take legal action if someone were openly selling bootlegged DVDs of their films in Times Square. Why then do these same companies do nothing about the unauthorized commercial use of their valuable characters by untrained, unlicensed street hustlers? City officials apparently met resistance when they approached the companies last year about getting into the fray over the Times Square performers. “They didn’t want to step on any toes, or be accused of putting people out of work,” said one council member who spoke anonymously. “Targeting Elmo doesn’t look good.”

Many of the Times Square performers appear to be mentally ill. “I’m the Joker,” said Keith Albahae in recent testimony to the council. He was seated next to a man in full Spiderman regalia. They fulminated about the injustice of having to remove their masks and makeup in order to appear before the council. Most of the costumed performers, however, are more mercenary, and it was for them that council members reserved somber statements about “hardworking people” doing “jobs.” Transportation committee chair Ydanis Rodriguez argued that the council’s proposal “will not put anyone out of business.”

Every council member at the hearing gave lip service to the idea that most of those wearing costumes are “good actors.” Only a tiny minority cause trouble, they said. But statistics don’t bear this out. According to the Times Square Alliance, 61 percent of people who work around the pedestrian plaza report negative interactions with the costumed characters. Tourists routinely report being pressured to give money, and the frequent fights and scuffles that are reported indicate that it isn’t just a question of good or bad actors. Rather, a class of parasites somewhere between professional panhandlers and scam artists has hijacked the First Amendment—along with the classically liberal ideal of common space—and is seeking to guilt-trip New Yorkers into putting up with their fraud.

Commenting in 1929 about London organ-grinders, George Orwell wrote, “To ask outright for money is a crime, yet it is perfectly legal to annoy one’s fellow citizens by pretending to entertain them. Their dreadful music is the result of a purely mechanical gesture, and is only intended to keep them on the right side of the law.” The costumed characters of Times Square, who reportedly wheedle between $100 and $200 per day out of New York City’s hapless tourists, shouldn’t complain about being made to operate within “zones.” They should count themselves fortunate that the generous spirit of New Yorkers allows them to ply their trade at all.

Photo by Andrew Burton/Getty Images


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