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Koltun offered the analogy of automobile manufacturers who often use similar language when contracting with retailers. "They'll say, 'We'll let you open a dealership for our project, but you can only sell within a restricted radius," he said.
The Lollapalooza case in Illinois warranted investigation, Koltun continued, because it involved an entity with a lot of power trying to create an unreasonable restriction. In contrast, though, it would be difficult to prove that San Francisco clubs are conspiring to undermine their Oakland counterparts.
Another option is for artists and their booking agents to take it upon themselves not to sign contracts with radius clauses. But even that seems unlikely, Gallagher said. He's actually had some luck convincing acts to skip San Francisco entirely in favor of Oakland — but, ultimately, it's tough to persuade an artist who's never been to the area to bypass the best-known city in the region, or to convince someone you're never met not to sign a contract.
Moreover, he said, many bands simply don't read all the fine print before signing, or their management company deals with the paperwork on their behalf. And in a difficult financial climate in an industry where many bands shoulder the burden of filling every venue they play — which is, indeed, the case for most small-to-midlevel music acts in the Bay Area — asking artists to fight the system would mean asking them to take a significant risk. The truth is, all but the biggest bands are generally at the mercy of venues, and inspiring any kind of industry-wide backlash against radius clauses would be far from easy.
Perhaps the most likely solution would be to encourage more venues to adopt the Yoshi's and New Parish model, or some variation thereof — that is, to co-present shows on both sides of the bay and in such a way that neither venue is at financial risk. But that would require venues to have the capital to open up a new sister club — again, not easy in this climate.
There's a fourth solution, too, or maybe it's part of another solution: Wait for Oakland's nightlife scene to coalesce into something with real influence and appeal within the industry. In fact, the prevailing sentiment appears to be that Oakland's moment just hasn't come yet. "I'm really excited about what's happening in Oakland," said Scott of Another Planet. "It just takes time."
McTaggart, Starfucker's booker, said Oakland's mystique is beginning to build within booking-agent circles, largely because of all the new venues. "It used to be, if bands were playing in the East Bay, they were playing at the Greek," he said. "But now the Fox is attracting a lot of bands, and so is The New Parish."
Still, it may take a while before music industry types are willing to bank on an emerging scene. Furthermore, Oakland's downtown has had the backward fortune of beginning to bloom at a time when the music industry started to struggle nationally; Scott believes that as the wider market picks up, Oakland may be primed to absorb that new business.
And even now, there are some silver linings. For one thing, radius clauses have had the unintended consequence of spawning a thriving warehouse scene, as many bands have been forced by contracts to play secret shows and underground venues. Ross Peacock of the band Mwahaha says he occasionally circumvents the rule by playing warehouse shows or house parties, which aren't advertised and can serve to promote a larger show at a legit venue. "I had one band tell their management they were playing as a backing band for a birthday party, and then they came [to Vitus] and played an unadvertised show," Gallagher recalled.
And just because East Bay clubs can't always get the big names, venues like The New Parish and Vitus are building their reputations on booking riskier, edgier, more up-and-coming acts — which can potentially pay off. For his part, Gallagher, ever the optimist, believes Oakland is on its way to becoming the kind of place bands prefer to play, based on quality of experience. He recalled a national touring band that came through town a few years ago and opted to skip the City altogether in favor of downtown hole-in-the-wall Cafe Van Kleef. The cover was minimal, the drinks were stiff, and the house was packed. "It's just this little neighborhood bar, but there weren't any rude bouncers, they weren't trying to just get you in the door and take your money. People were actually dancing, instead of standing against the wall."
Later, Gallagher said, the band members told him it was the best night of their tour.
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