Religious ‘Hamilton’ Reproduction may be Legal in New Jersey but has caused a Controversy for a Texas Church

“Everything’s legal in New Jersey” is one of the more memorable lines from playwright Lin-Manuel Miranda’s ‘Hamilton’. But, unfortunately for a Texas church, they are not in New Jersey. The Door McAllen Church has been sued by the playwright for violating the Copyright Act when the church produced a modified version of Hamilton. Hamilton is Broadway play that depicts the founding of America through song and rap, using a diverse cast to portray America’s founding fathers. It swept the nation, winning 11 Tony awards and is generally regarded as a critical success. The church changed the lyrics of Hamilton to include religious reference and symbolism and performed their modified version of the musical. Moreover, a sermon was given after the production where the pastor stated those struggling with alcohol, drugs, or homosexuality should call on God.

Churches rarely employ intellectual property attorneys to determine what their options are for special programming. This is in no small part due to the “religious exception” to the Copyright Act. The religious exception allows churches to perform (1) (a) non-dramatic musical or literary works or (b) dramatic or musical works of a religious nature , so long as the work is put on (2) in the course of services (3) at a place of worship or religious assembly. Under this exception, churches are shielded from what would be an infringement in other settings. But the religious exemption likely won’t protect the church from an infringement claim of Hamilton.

The church can trivially establish that the production was put on at a place of worship or religious service. But that is one element of three. The first issue the church will face is that Hamilton, while having religious undertones, is not obviously “of a religious nature.” The church modified Hamilton to increase its religious character. However, the religious exception gives churches an exception to perform dramatic or musical works of a religious nature. The exception does not give churches the right to prepare derivative works, which is what a modification is. And therefore, even if the performance fell within the religious exception (and that is highly unlikely), the modification did not. The second issue the church will face is that the performance was separate from a traditional church service. There is an argument that because a sermon was given after the performance, then it was a non-traditional service. This is compelling argument, and therefore the dispute will likely hinge on the first element.

Another consideration is fair use. Fair use exists when a copyrighted work is used without the copyright holder’s permission for the purpose of “criticism, comment, new reporting, teaching, scholarship, or research.” Intent alone is not enough. Instead, there are four factors Congress has codified that the Courts must consider to find fair use: (1) the purpose and character of the use, (2) the nature of the original work, (3) how much of the original work was used, and (4) how the use affects the market for the original use. These factors are very fact specific. Moreover, fair use is often used to justify parodies. Critically for parodies, the first element includes a transformation analysis that, while not being dispositive, may overshadow the other elements. The Courts have gone as far as to say that the more transformative a work is, the less important the elements become. Fair use is a better, but is still probably a losing, defense.

Some facts stand out that lend themselves to the church’s fair use of Hamilton. First, the use was for religious education or political advocacy, as suggested by the sermon after the performance. Hamilton was transformed for the performance, but how it much it was transformed, and the character of the transformation are open questions. Nevertheless, this does favor fair use under the first element. But on the other hand, the entire play was used, not a small portion. This favors infringement under the third element. Had the church used an isolated rap or two, they would have a much stronger case for fair use. The second and fourth elements are probably not implicated or as important as the play is commercial in nature, but it is unlikely that any measurable change in revenue has been caused by the church’s performance. With these facts, the amount of transformation will be critical. The amount of religious and political commentary and how precisely Hamilton was changed will have a huge influence over a finding of fair use. Nevertheless, it is fair to say that even with the fair use defense, the church’s attorneys may have a challenging litigation in front of them.

Hamilton is not the only musical out there. In fact, there are claims that the church has previously transformed Beauty and the Beast in a similar manner to Hamilton. Disney’s Beauty and the Beast is based on a fairytale, La Belle et la Bete. The fairytale was published in 1740, and therefore its copyright has long expired. However, Disney’s version adds new content from the version in the public domain, such as songs, which are entitled to copyright protections. Therefore, any reproduction or changing of Disney’s interpretation of Beauty and the Beast or Disney’s songs may have also been an infringement. In the future, the church should consider having a trained intellectual property attorney look over their planned productions when they are intending to use another’s work to ensure that they are not violating the Copyright Act. Or the church should move to New Jersey.

James W. Taylor II is an attorney in our Livonia office where he focuses his practice on patent prosecution, intellectual property law, intellectual property litigation, complex litigation, commercial litigation, and business law.

Mr. Taylor has over 10 years of experience in patent prosecution. He started his career for the United States Patent and Trademark Office as a Patent Examiner and Patent Classifier, where he gained exposure to internal practices of the Patent Office. At the Patent Office, he examined specialty polymer materials in classes 523-524, including thermal insulators for rockets, revulcanization processes for recycling tires, and drag reducing agents for oil pipelines. Since leaving the Patent Office, he has obtained hundreds of patents for inventions for both Fortune 100 businesses and independent inventors. Some representative areas that he has drafted and prosecuted applications include: batteries, atomic layer and chemical vapor deposition systems, firearms, cellular and wireless communications, autonomous vehicles, software, lasers, vehicle components, bioremediation devices, and personal lubricants. In addition to patent prosecution, Mr. Taylor also works in complex litigation, intellectual property litigation, business litigation, and employment litigation, where he is an accomplished brief writer, having drafted dozens of favorable dispositive motions.