The halting of an unauthorised production of the hit musical Hamilton by a Texas-based church has highlighted the risks involved in copyright infringement – as well as the infringement of moral rights. Emma Mitchell from our Law and Trade Marks team discusses the case and how it applies in an Australian context.
Background
The team behind the Tony award-winning musical, ‘Hamilton’ (Hamilton) has alleged that a Texan church known as ‘The Door McAllen’ (the Church) infringed copyright in the work by performing and streaming an unauthorised production of the well-known stage show in early August.
The following day, fans of the musical immediately alerted Hamilton to the existence of the performance, which had been streamed by the Church on YouTube. Clips of the performance quickly went viral on the social media platform TikTok alongside the hashtag ‘Scamilton’.
Hamilton immediately issued a cease and desist letter demanding that all content relating to the performance be removed from the internet. Hamilton gave permission to the Church to proceed with their scheduled second (and final) performance that evening on a without prejudice basis, and subject to strict conditions including the non-publication of content relating to the performance and the payment of an undisclosed sum of damages.
Of particular concern to Hamilton was the Church’s modifications to the original script and lyrics which included multiple references to Jesus and other overt Christian ideologies, as well as a sermon that God could ‘cure’ people of homosexuality and addiction issues.
The creator of ‘Hamilton’, Lin-Manual Miranda is a staunch supporter of LGBTQIA+ rights and famously delivered an emotional acceptance speech honouring victims of the mass-shooting at an Orlando nightclub at the 2016 Tony Awards. In response to the Church’s performance, a spokesperson for Hamilton said:
The Hamilton family stands for tolerance, compassion, inclusivity and certainly LGBTQ+ rights. We are in the process of reviewing the unauthorised changes made to the script to determine further action.
The spokesperson later told The New York Times that the undisclosed sum of damages paid by the Church would be donated to a charity which supports the LGBTQIA+ community in Texas.
Copyright infringement
In order to mount a production of a play or musical, it is crucial to obtain the right to do so from the owner of the copyright in the works (being the music, lyrics, and script). Generally, rights to perform shows are not available to third parties for some time after the show has run professionally. This includes rights for schools, amateur drama societies or even churches to perform those works. In most cases, a licence fee will be payable. Any performance without those rights will infringe copyright in the works.
Exemptions to copyright infringement for religious institutions: United States
In the United States, in addition to a ‘fair use’ defence to copyright infringement (which is similar to Australia’s ‘fair dealing’ exemption), religious organisations may perform ‘dramatico-musical works of a religious nature’ in the course of services at a place of worship or other religious assembly without infringing copyright.
Legal commentary in the US surrounding the Church’s performance considers that the performance is highly unlikely to qualify for protection as Hamilton is not itself a religious work (despite some minor biblical references), and the exception to infringement is “not a free license to perform any play that references God”.[1] It should also be noted, the Church’s rendition was arguably not performed in the course of a religious service.
Exemptions to copyright infringement for religious institutions: Australia
In Australia, registered charities (including some religious organisations) may play sound recordings in public ‘as part of the activities of, or for the benefit of [the registered charity]’, provided that any proceeds from an admission charge are applied only for the purposes of the registered charity.[2] This exemption is narrower than its US counterpart.
A fair dealing exemption may also apply depending on the circumstances of the reproduction of copyright works, which include reproductions for the purpose of parody or satire, criticism or review.[3]
Infringement of moral rights
In certain circumstances where a copyright work has been modified, the author may pursue an action for infringement of their moral right to integrity of authorship.[4] To establish such infringement, the person must prove that the modification to the work is prejudicial to the author’s honour or reputation, amounting to derogatory treatment.[5] If the Hamilton scenario to occurred in Australia, the inclusion of anti-LGBTIQA+ content may constitute an infringement of moral rights, particularly given that Miranda is a strong supporter of the LGBTIQA+ community.
Key takeaways
- Organisations should obtain explicit permission to exploit copyright works, noting that in the case of dramatic works there can be multiple permissions required to cover lyrics, script and music.
- Religious organisations which are registered charities may rely on very limited exemptions to actions for copyright infringement in Australia.
- Where online infringement is involved, it is imperative to act quickly to mitigate infringing content going viral.
[1] Boston University Professor of Law Jessica Silbey, quoted in Tiffany Hu, ‘Church’s ‘Hamilton’ Show Likely Runs Afoul of Copyright Law’ (Web Page, Law 360)
[2] Copyright Act 1968 (Cth) s 106.
[3] Copyright Act 1968 (Cth) ss 41A and 41.
[4] See Copyright Act 1968 (Cth) Div 6, Subdiv A.
[5] Copyright Act 1968 (Cth) ss 195AI, 195AJ and 195AQ.
