Recent press reports have talked much about a Texas church that decided to put on a production of the musical Hamilton – both live and streamed via YouTube. The church not only put on the performance of the musical, but also adapted the script to include material with religious themes not included in the original version. Lin-Manual Miranda, the creator of the musical, was reported to say that, following the discovery of the unauthorized performances, “now the lawyers do their work.” But just what did the church do wrong? This case serves as an illustration of how copyright issues pervade society – and these issues are often ignored until an improper use is discovered by a rightsholder or their representative. At that point, the user often gets a quick education in the significant potential penalties they face from ignoring the law.
Like all other copyrighted works, among the rights given to creators of a musical like Hamilton is the right to consent to the public performance of that work. We have written how that right to consent to public performances is in some cases restricted by statutory or blanket licenses, where the government (either directly, through the Copyright Royalty Board for public performances of sound recordings and the use of musical compositions by noncommercial broadcasters, or indirectly through antitrust consent decrees or settlement agreements that apply to ASCAP, BMI and, in some instances, SESAC – see our article here on some of the issues with these rights). There are other statutory licenses giving, for instance, cable and satellite television providers the rights to retransmit broadcast stations in exchange for the payment of statutorily set fees (see our articles here and here for some examples of the issues with these statutory licenses). For most other copyrighted works, like plays and musicals, that right to restrict the public performance of a work is not restricted by statutory licenses. And the writers of theatrical works are diligent in enforcing their copyrights. So every junior high school performance of The Music Man, or community theater performance of Rent, should be licensed by the representatives of the copyright holders in these works.
The Copyright Act in Section 110 provides some limited exceptions that allow works to be performed in certain situations that are socially or culturally favored. Certain nonprofit educational uses are permitted, but only in connection with classroom teaching (or online teaching under limited circumstances). Churches, too, have a right to perform certain copyrighted works without receiving licenses, but only to the extent that the copyrighted work is “of a religious nature” and is presented “in the course of services at a place of worship or other religious assembly.” Seemingly, Hamilton is not a work of a religious nature nor, apparently, was the performance done in the course of a religious service. These and other exceptions set out in Section 110 relieving a user of the need to get permission for performances from the copyright holder are narrow and specific, and the religious exception does not include any reference to the streaming of any performance exempted under that section. Rely on these exceptions only after careful study to make sure that all of the requirements of the statute are met.
Moreover, the exceptions in Section 110 apply to the “performance” of a copyrighted work. There is an entirely different right to make a “derivative work” from any copyrighted work. As we wrote in more detail here and here, a derivative work is broadly defined to include any substantive change to a work that has been copyrighted. As defined in Section 101 of the Act, a derivative work includes:
a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
Certainly, the copyright holders in Hamilton have a substantial argument that the addition of religious material not contained in the original work would recast, transform or adapt the original work. Indeed, that would be an issue for any unauthorized adaptation of a copyrighted work. I have dealt with copyright holders of Broadway musicals to get permission for non-profit adaptations of their works, and the representatives almost always want to review any script to assure themselves that any changes do not materially affect the substance or nature of the original work.
The internet transmission itself raises other issues. As we have written (see, for example, our articles here and here), recording any copyrighted work makes “reproductions” of that work, and transmitting it through internet channels on an on-demand basis constitutes both a reproduction and distribution of the work – both of which need permission of the copyright holder.
In short, any company or organization planning a production or internet transmission of any play or musical, or any dramatization of any book, article script, or other written work needs to carefully consider the copyright implications of the planned use. In virtually all cases, except in those very limited situations where the Copyright Act provides an exception, permission from the creator or copyright holder of the work will be needed. As any infringement can be subject to “statutory damages” of as much as $150,000, not paying attention to a copyright holder’s rights can prove to be very expensive very quickly. Copyright law is confusing – but if there are questions, get advice as the alternatives can be costly.
Courtesy Broadcast Law Blog