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Church's 'Hamilton' Show Likely Runs Afoul Of Copyright Law

Partner Shanti Sadtler Conway was quoted in this article from Law360 regarding copyright law.

A Texas church's unauthorized rendition of the Tony award-winning musical "Hamilton" this month is likely not covered by a provision of U.S. copyright law that exempts churches from facing potential litigation for performing copyrighted works during religious services, legal experts say.

This past weekend, a McAllen, Texas, church called The Door McAllen put on two performances of the hit musical "Hamilton," which tells the story of American Founding Father Alexander Hamilton. The church had apparently changed the original lyrics to include biblical references and a sermon that tells parishioners God can help those struggling with alcohol, drugs or homosexuality.

A spokesperson for the official "Hamilton" production said in a statement it had sent a cease-and-desist letter for the "unauthorized use" of its intellectual property after the first performance was live-streamed to the church's YouTube channel, but allowed the second performance as long as it was not live-streamed, recorded or shared on social media.

There doesn't appear to be a lawsuit filed, and a "Hamilton" spokesperson didn't respond to a request asking whether the production is planning to bring a suit. "Hamilton" creator Lin-Manuel Miranda tweeted Wednesday that he was grateful to everyone who reached out about the "illegal, unauthorized production," adding: "Now lawyers do their work."

A representative for The Door McAllen did not immediately respond to a request for comment Thursday.

Churches can perform certain copyrighted works under the so-called religious services exemption of the Copyright Act, which allows performances of a "nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly."

However, The Door McAllen's performances don't appear to be shielded by the exemption, which does not apply to dramatic stagings of musicals, legal experts say.

The exception for "dramatico-musical works" is limited to those of a religious nature, and "'Hamilton' is not a religious work," says Xiyin Tang, a law professor at UCLA School of Law.

Though the original "Hamilton" script may include some biblical references, the legislative history is clear that "dramatico-musical work of a religious nature" refers to oratorios, cantatas, choral services and other religious music, according to Tang. An "underlying religious theme" isn't enough to render a work into one of religious nature, she said.

The religious services exemption is "not a free license to perform any play that references God," Boston University law professor Jessica Silbey told Law360. "If you think about how broad that exemption would be and realize how hard the dramaturges fought for their licensing rights during the negotiation of the Copyright Act … you'd realize this is a very limited exemption."

Further, while the religious services exemption applies to performances of certain works, it "does not authorize the creation of derivative works, which is what appears to have been done at least in part here," Haynes and Boone LLP partner Jason Bloom said.

Some attorneys seem to agree that the church's performances could be considered worship services or "religious assembly" under the statute. But since the original "Hamilton" musical isn't of a religious nature, the performances do not "qualify for the exemption, regardless of the fact that it may have been performed during a religious assembly," according to Kirkland & Ellis LLP partner Shanti Sadtler Conway.

Other attorneys, like Nicole K. McLaughlin and Tyler R. Marandola of Duane Morris LLP, posited that there could be an argument that the church performance was not "in the course of services," which would mean the Texas church's rendition does not meet the exemption.

After all, the church seems to have advertised the two-hour performance on Eventbrite separately from any church services, according to McLaughlin. However, she said there may be a stronger argument that the church's rendition does fall under the exemption.

"The fact that the church changed the play to make it more Christian ironically might help them argue it's part of a service," she said.

There have been relatively few cases involving the interpretation or application of the religious services exemption, according to Vijay Toke of Rimon PC.

In 2006, an Alabama federal judge ruled that a radio station owner was jointly liable for copyright infringement when stations he owned broadcast several copyrighted songs owned by members of the American Society of Composers, Authors and Publishers, or ASCAP.

Though some of the songs were performed during church services, the judge rejected the station owner's argument that he qualified for the religious exemption, concluding that the exemption said nothing about permitting broadcasts from a place of worship.

Unlike a radio station broadcast, The Door McAllen's productions appear to have taken place at the church. Still, the "Hamilton" team would "certainly be well within its rights to sue for infringement, as the church put on an unauthorized dramatic performance," according to Tang.

It's hard to say whether The Door McAllen could argue its production was fair use of the original musical, without knowing all the edited content, experts say. It's likely that this defense would fail unless the church could argue that its staging, with its altered lyrics, were transformative enough, "altering 'Hamilton' with new expression, meaning or message," Tang said.

The church would probably have "an uphill battle in arguing [its production] was not an infringement," Toke agreed. If the church put on a performance of the entire musical, or "even large chunks of it," it seems unlikely that would qualify as fair use, he said.

"On the other hand, if there was a performance of small scenes or portions from the 'Hamilton' musical and then commentary, that would bolster an argument for fair use," Toke said.

The church hasn't announced any upcoming "Hamilton" productions on its website.