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Traveling Bands Do Not Cross

How music industry rules are blocking artists from playing in Oakland.

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If the Oakland music scene needs a cheerleader, it may very well come in the form of a strong-jawed, swift-talking, tattooed punk-rocker. Damon Gallagher is probably the first to admit that he's not exactly a rah-rah type, but get him talking about the East Bay's musical landscape — and its myriad challenges — and it's clear that he is personally invested. Slightly obsessed, even.

It's why Gallagher has been playing the scene for several years as part of Damon and the Heathens, and it's why he opened Vitus, a massive Jack London restaurant and music venue, in September. "We have more venues than ever, better venues than ever before, and a serious community spirit," he said, sitting in his upstairs office at Vitus as sounds of the rehearsal for that night's act — a bracing neo-soul ensemble — wafted through the open door. "People are excited to be going out in Oakland, excited to be seeing music in Oakland. I really feel like this is the place to be right now."

He's got a point. In the last few years, the East Bay — especially downtown Oakland, once a veritable ghost town at night — has seen a near-explosion of dance clubs and music venues, including Vitus, The Layover, The Uptown, Disco Volante, The New Parish, and the refurbished Fox Theater. At the same time, with the arrival of pedigreed new bars and restaurants like Plum, Make Westing, Bar Dogwood, Rudy's Can't Fail Cafe, and Xolo, Oakland's cachet as a regionally-recognized drinking and dining center has grown, and the city now has the infrastructure to support hungry and thirsty concertgoers.

Civic investment in redevelopment and public safety made Oakland a more attractive nightlife destination, and the Broadway Shuttle — which runs free from Uptown to Jack London Square until 1 a.m. Friday and Saturday nights — has made it more accessible. At the same time, the Great Recession has prompted cavalcades of young, hip, creative people to give up their Mission and Lower Haight flats for Uptown apartments and West Oakland warehouses. Several nationally known hip-hop, garage rock, and electro-pop bands also have come out of Oakland in recent years. All told, this is the East Bay's moment for a live-music renaissance.

Except there's one big, institutional obstacle to creating the kind of destination music scene that Gallagher and his peers envision: Many music acts are simply not allowed to book shows in Oakland.

The reason has to do with the little-known, behind-the-scenes process that governs where musicians play and when. And in the Bay Area, San Francisco rules. Most San Francisco venues, in fact, require acts to sign a contract stating that they won't play elsewhere in the Bay Area within a prescribed time period. It's known within the industry as a radius or territory clause, and it's arguably one of the biggest shapers of the Bay Area's musical topography, influencing which bands book where — and, by extension, which clubs succeed and fail, which neighborhoods capture popular and media attention as anointed "destinations," and which cities' economies get the benefit of money spent on food, drinks, and tickets.

A radius clause also can be unfair to artists, because it strips bands of the power to determine their own fanbase.

Proponents of radius clauses, however, say they're necessary to balance supply and demand, especially as the live music industry continues to sustain the aftershocks of the recession. After all, this is still a business, and in order to stay afloat, clubs and concert halls need to be sure that an act they book won't show up on the other side of the bay playing for half the ticket price. Besides, a half-filled show isn't good for the venue, performer, or audience.

But from another perspective, radius clauses are unfair at best, opportunistic at worst, and in some cases, borderline illegal: In 2010, Illinois State Attorney General Lisa Madigan investigated Lollapalooza promoter C3 Presents for anti-trust violations after it tried to impose an outlandish radius clause that barred bands from playing within three hundred miles of the festival's site in Chicago. What's clear is that these arcane rules fundamentally privilege bigger cities over smaller ones and raise questions about the limits of fair competition.

Or, at the very least, they put Oakland at a systemic disadvantage — especially when it comes to touring bands. If you ask Gallagher, it's something of a no-brainer: Acts that are unfamiliar with the Bay Area are almost always going to choose the bigger, brand-name city over the smaller, scrappier one, leaving Oakland venues with fewer options.

Even bookers who don't have a vested interest in one side of the bay over another acknowledge this. "When you're a small club act on tour and you have to pick one place to play in the Bay Area, you're gonna pick San Francisco," said Allen Scott, executive vice president at Another Planet Entertainment — which books venues including The Independent, The Fox Theater, The Greek Theatre, and the Bill Graham Civic Auditorium, as well as the Outside Lands and Treasure Island music festivals. "It's just a reality."

As a result, East Bay venues are, by and large, forced to settle for lower-quality and lesser-known acts — or the bands themselves are forced to violate their contracts and play in Oakland anyway. "I can't tell you how many friends' bands I've had coming through who weren't reading their contracts or who maybe had to go through their label, and they had to either sneak around and play secret shows, or just not play Oakland at all," Gallagher said. "It definitely hurts."