SCAM-ilton: Implications of a Church’s Unlicensed Attempt at Broadway
In the fall of 2022, a Texas church added to its production prowess beyond the annual Christmas pageant with a church-friendly version of Hamilton.[1] After all, what more could entice the modern non-believer than rap, dancing, and America’s founding fathers? For the Door McAllen church, the contemporary craze of the Broadway musical was the perfect lure.
Hamilton, written by Lin-Manuel Miranda, is a rap musical that tells the story of Alexander Hamilton, the United States’s “ten-dollar founding father.”[2] Since its debut in 2015, Hamilton captivated the nation, generating over $1 billion in revenue.[3] Although the church acquiesced to its wrongdoing without a lawsuit, one wonders if Door McAllen’s pure intentions really led them down a path of sinful infringement.[4]
Infringement
For a case of infringement to prevail in the U.S., a copier must be guilty of both copying in fact and in law.[5]
Copying in Fact
Copying in fact is the “actual copying” of the original source material by an infringer—a show that the “defendant actually used some elements of the plaintiff’s work.”[6] This is demonstrated by proving an infringer “had access” to the copyright owner’s work, a seemingly simple yet significant element.[7] After all, given enough time, even monkeys randomly striking a typewriter could produce a work of Shakespeare. In this case, no law degree is required to discern whether Door McAllen had access to Miranda’s production or employed a barrel of monkeys. Not only did the church lift numerous exact and unique elements from its highly-publicized predecessor, but Door McAllen openly thanked the “Hamilton team for granting them rights” to perform the show.[8] This public admission relieves any doubts of whether the church had access to Miranda’s musical.
Copying in Law
Copying in law is the quantitative and qualitative bar that provokes “legal liability for infringement.”[9] In many cases, a license grant discharges an infringement case. Although the church claimed Hamilton granted them a license to perform, the claim was certainly false. Hamilton is not currently granting licenses for schools, churches, or any other off-Broadway productions, especially while the show is itself on Broadway.[10] In fact, a spokesperson for Hamilton stated:
“Hamilton does not grant amateur or professional licenses for any stage productions and did not grant one to [Door McAllen]. We issued a cease-and-desist letter for the unauthorized use of Hamilton‘s intellectual property, demanding the immediate removal of all videos and images from previous productions from the internet, including YouTube, TikTok, Facebook, Instagram, their own website, and elsewhere.”[11]
Even if Hamilton had granted Door McAllen a license, the church could still be in hot water for its homophobic messaging and Christian-motivated censorship. Fortunately, this is not a problem that needs to be analyzed and, in this defense, Door McAllen can find no solace.
Although Door McAllen had access to the musical, did the church copy the work to the extent of legal liability? While Door McAllen replicated much of the original Hamilton production (however poorly), they employed a few notable changes.[12]
To shape the musical into the perfect parable, Door McAllen cut several non-conforming songs and scrapbooked “Jesus” into lines that otherwise advanced Hamilton’s plot. For example, Eliza Schulyer abruptly tells Hamilton “my hope is in Jesus” rather than her original line, “I know who I married.”[13] The church even flexed its screen-writing chops with an original scene depicting a priest leading Alexander Hamilton through a prayer asking God to forgive him of his sins.[14] “Stop running from God, Alexander,” says the priest, after gently implying that the death of Hamilton’s son was punishment for his adultery.[15] Despite these changes, Door McAllen imitated nearly two hours of the original two-hour and forty-five-minute show, down to the choreography.
Keyboard critics were also not shy to highlight the production’s uncomfortably long silences, fumbled lines, and off-key performances. Unfortunately for the church, a poor production does not lessen the earnest attempt to copy directly from its source material, especially when most of its performers are just excited kids trying their best.
Finally, one could argue that Door McAllen’s changes reshaped the heart of the show, deeming it unrecognizable as the original. The church flipped Hamilton’s original story of Alexander obsessively crafting his legacy without help from God (“and when my prayers to God were met with indifference / I picked up a pen, I wrote my own deliverance”) to one of Alexander escaping his self-made hell with God’s help.[16] Door McAllen reinforced the new message with an alter call at the show’s end, beckoning the audience to seek God’s forgiveness as Scam-ilton’s Alexander had. “‛[God] wants to forgive you for your sins,’” said the pastor.[17] He then encouraged the audience to use a musical that openly implies Hamilton’s fluid sexual orientation as inspiration to repent from homosexuality-related sins: “Maybe you struggle with alcohol, with drugs—with homosexuality.”[18]
And yet, Door McAllen’s substantial similarity to Hamilton remains overwhelming. Despite the differences, a court would examine the work as a whole and find that “an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.”[19] Based on the public backlash and referential nickname, a court need not ponder long on this standard. The church may have subverted Hamilton’s original message, but its production is still recognizable as Manuel’s show. So, while Door McAllen was very likely in the wrong, a closer examination of the law could nonetheless loosen the knot of the church’s self-tied noose.
Defenses
The law provides several safe harbors for otherwise infringers to bypass the condemnation of their theft, including religious exemption or by proving fair use.
Religious Exemption
Interestingly, there is a religious exemption for copyright that may have been the inch that the church ran a mile with. Section 110(3) of the Copyright Act provides a narrow allowance for religious entities to perform certain works in the course of worship without first seeking permission from the copyright owner.[20] Unfortunately for Door McAllen, the rule’s absolution applies explicitly to “nondramatic” works or dramatic works “of a religious nature.”[21] Hamilton’s narrative format deems it a dramatic work that is not captured under the exemption umbrella.[22] And however Door McAllen may wish it so, Hamilton’s occasional references to Christianity do not embody the nature of the musical.
The Copyright Act’s religious exemption also does not allow for public distribution or derivative works—a narrower limitation that Door McAllen breached regardless of Hamilton’s classification. Distribution of copies amounts to publication, a right reserved for the copyright owner regardless of an infringer’s religious status.[23] By filming and publicly broadcasting their production, Door McAllen created and distributed unauthorized copies of Hamilton. Not only did Door McAllen rob Hamilton’s registrant owner of his publication right, but the church’s copies were arguably derivative. Section 110(3) does not authorize derivative works of the content it exempts—the cherry on this condemnatory sundae.
Fair Use
There are, as with many copyright infringement cases, the mutterings of the ever-present “fair use” argument. Section 107 of the Copyright Act provides reproduction allowances for certain enumerated purposes.[24] At least four factors must be considered in a fair use analysis: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount of the original work copied, and (4) the aggregate effect of the work’s use on the market.[25]
The first factor—purpose and character—examines “commerciality” and “good faith.”[26] Door McAllen’s attempts to spread the gospel could be deemed a noncommercial, good-faith use that beckons its production under the safe harbor of privileged copying. A “purpose and character” analysis also examines the extent to which a copier added “something new and important” to transform the original work.[27] While Scam-ilton certainly contains elements new to its original production, it is debatable whether they are new to the extent of being transformative. Some harsh critics may attempt to brand the transformative effect of Door McAllen’s production as a parody. And while classification as a parody does not automatically usher Door McAllen into the graces of fair use, Scam-ilton cannot even be classified as such.[28] The church’s production “merely uses” Miranda’s musical for its eye-catching prolificacy, and its commentary has no “critical bearing on the substance” of the “original composition.”[29] The mere possible good faith of Door McAllen’s intent cannot outweigh Scam-ilton’s lack of transformative value.
Door McAllen is also out of luck with the second factor. Publishing status and the extent of an original work’s creativity as opposed to factual composition are both key to determining its nature.[30] An unpublished, factual work is more likely to be “up for grabs” by creators to reinterpret. Here, Manuel’s musical is not only a published work but is a creatively driven venture. Although Hamilton is based on numerous historical facts, Manuel took many creative and protectable liberties not in the public domain. After all, it is unlikely the founding fathers jaunted about budding America in choreographed song and dance. Thus, the second factor of fair use also weighs against Door McAllen.
The third factor examines the quantitative and qualitative amount of the original work copied by the potential infringer.[31] The quantitative allowances are easily exceeded as the church attempted to recreate over ninety percent of the original show. And despite the overhaul of Hamilton’s original messaging, Door McAllen’s production also copied “essentially the heart” of the show to the extent of non-privileged copying.[32]
Finally, the effect of Scam-ilton on the Broadway market is arguably substantial. If a curious observer wanted to glean the popularity of Hamilton without significantly lightening their wallet, then they needn’t search further than Door McAllen. For the low price of religious propositioning, an audience member may watch a near-exact reproduction of Hamilton (quality aside). This too weighs against Door McAllen, making fair use an unlikely defense for the church.
Result and Implications
Through well-meaning tweets from fans and public reprimand by the Dramatists Guild, the church’s production was quickly brought to the attention of Lin-Manuel Miranda.[33] After publicly apologizing in since-deleted social media posts, Door McAllen paid an undisclosed amount in damages and removed their performance recording.[34] Miranda then directed the funds to be donated to South Texas Equality Project (“STEP”), an LGBTQI advocacy organization.[35]
It is not uncommon for Christianity to parody or reference pop culture to appeal to younger generations. Dozens of shirts are available online sporting graphics like “Jesus Did It” alongside the trademark Nike “swoosh” or “FedUp? Give God Control” in FedEx’s signature purple and orange.[36] While merchandise is the most apparent intellectual property infringement, there is no shortage of churches borrowing movie clips, music, artwork, or plots to encourage worship. The religious exemption provides a clear limit, but its real-life application is blurred. Infringement cases by churches seem to run more undetected compared to their agnostic counterparts. Is this because companies are reluctant to undergo the public backlash that would result from attacking a non-profit, deity-fearing entity?
There is also difficulty in proactively protecting an intellectual property owner’s rights when churches, though open to the public, maintain a small, familial community. In fact, Hamilton was not the first infringing production of Door McAllen’s.[37] It was only the absurdity of its most recent performance that launched “Scam-ilton” into the public eye.
Door McAllen’s venture into theatre has been paused, but what can be said about other places of worship? How many other infringing ventures are shrouded by stained-glass windows? Perhaps it is time for legislators to revisit the Copyright Act’s religious exemptions. Should Congress expand 110(3) in light of our “instant access” and technologically modern world?[38] Or should Congress instead abolish the exemptions?[39] For now, we can only wonder if “forgive us our trespasses” extends to intellectual property.
Footnotes
