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.
CMDA Law
Recent Posts
- Michigan Expands its Earned Sick Time Law and Increases Minimum Wage
- Richards’ Article on Medicaid Estate Recovery Featured in Urban Aging News
- Jim Acho Guest on WJR Morning and Afternoon Shows to Discuss New NCAA NIL Lawsuit
- Jim Acho Files Landmark NCAA Class Action Suit
- Livonia Attorneys Participate in Detroit Mercy Law School’s On-Campus Interviews
Recent Comments
Archives
- October 2024
- September 2024
- August 2024
- July 2024
- June 2024
- May 2024
- April 2024
- March 2024
- February 2024
- January 2024
- December 2023
- November 2023
- October 2023
- September 2023
- August 2023
- July 2023
- June 2023
- April 2023
- March 2023
- February 2023
- January 2023
- December 2022
- November 2022
- October 2022
- September 2022
- August 2022
- July 2022
- June 2022
- May 2022
- April 2022
- March 2022
- February 2022
- January 2022
- November 2021
- October 2021
- August 2021
- July 2021
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- November 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- June 2019
- May 2019
- April 2019
- March 2019
- February 2019
- January 2019
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- April 2018
- March 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
- January 2016
- December 2015
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014
- December 2013
- November 2013
- October 2013
- September 2013
- August 2013
- July 2013
- June 2013
- May 2013
- March 2013
- February 2013
- January 2013
- December 2012
- November 2012
- October 2012
- September 2012
- July 2012
- June 2012
- May 2012
- March 2012
- February 2012
- January 2012
- December 2011
- November 2011
- October 2011
- September 2011
- June 2011
- March 2011
- February 2011
- October 2010
- August 2010
- January 2010
- January 2009
- September 2008
- June 2008
- May 2008
Categories
- 50th Anniversary
- Allan C. Vander Laan
- Appeals and Litigation
- Appeals and Litigation Articles
- Barbara M. Moore
- Business Law
- Business Law Articles
- Carol A. Smith
- Christopher G. Schultz
- Community Association & Real Estate Law Practice Group
- Community Association and Real Estate Law Articles
- Community Association Law
- Daniel W. Ferris
- Douglas Curlew
- Education Law
- Education Law Articles
- Employment and Labor Law
- Employment and Labor Law Articles
- Estate Planning and Elder Law
- Estate Planning and Elder Law Articles
- Firm News
- Gary D. Klein
- Gerald C. Davis
- Gregory A. Roberts
- Gregory R. Grant
- Haider A. Kazim
- Insurance Defense
- Insurance Defense Articles
- Isa M. Kasoga
- Jacklyn P. Paletta
- James R. Acho
- James W. Taylor II
- Jeffrey R. Clark
- Joel Ashton
- John "Jay" Gillen
- John D Gwyn
- John M. McFarland
- Joshua J. Cervantes
- Kenneth M. Gonko
- Kevin J. Campbell
- Kimberly M. Coschino
- Kristen L. Rewa
- Latest News
- Law Enforcement Defense and Litigation Articles
- Law Enforcement Litigation and Defense
- Linda Davis Friedland
- Litigation
- Margaret A. Lourdes
- Matthew C. Wayne
- Matthew W. Cross
- Michael O. Cummings
- Michelle L. Richards
- Municipal Law
- Municipal Law Articles
- News & Events for Business Law
- News & Events for Municipal Law
- News Archive
- Norman E. Richards
- Owen J. Cummings
- Patrick R. Sturdy
- Plaintiff's Personal Injury
- Plaintiff’s Personal Injury Articles
- Presentations & Articles
- Published Articles
- Ray E. Richards II
- Real Estate Law
- Robert J. Hahn
- Robert L. Blamer
- Ronald G. Acho
- Ryan D. Miller
- Sarah L. Overton
- Shane R. Nolan
- Stanley I. Okoli
- Stephen C. Johnston
- Suzanne P. Bartos
- Timothy S. Ferrand
- Uncategorized
- Utility Law
- Utility Law Articles
Leave a Reply