In August 2022, The Door Church in McAllen, Texas made national headlines with its unauthorized performance of the Broadway musical production "Hamilton." The show was reported to included script changes with references to Christianity. The Broadway show’s producers learned of the performance on social media and issued a cease and desist order. One of the church's pastors later issued an apology, which stated in part, "On behalf of The Door Christian Fellowship McAllen Church, I would like to personally apologize to the creator of Hamilton, Lin-Manuel Miranda, the producers of Hamilton, and the numerous others who contributed their intellectual property to Hamilton, for staging an unauthorized production of Hamilton that infringed on the rights and copyrights of many.” Damages were paid. A Texas TV station covers the story here.
Brock Shinen, Esq., Anaheim Hills, California
Churches often navigate copyrights when it comes to music they perform – but theatrical productions can be even trickier according to Brock Shinen, a California attorney who specializes in copyright law. He says plays are protected content as written script/dramatic work and the owner has exclusive rights. If someone violates without consent or exemption, they are liable for copyright infringement. He says churches always need permission or exemption – but far too many assume the exemptions, which are not clear cut. “Most churches just literally leap over any analysis and say, ‘non-profit, fair use, or parody. No one's going sue us.’ And that's their analysis.”
Shinen says churches also may think that changing a play by adding religious content makes them exempt, but that’s not how the law works. Shinen explains that churches usually start by throwing around the words, “Fair Use.” He says, “Keep in mind fair use is a defense to infringement. It's not permission. You may think it's fair use and you still may lose in federal court and still be liable for infringement even if you've done a full analysis. The court is entitled to disagree with you.” Permission to use a play comes with licensing and fees. Fair use would allow using it without obtaining permission or paying those fees. Judges use four factors to resolve fair use cases, and churches that fail to assess all four factors do so at significant risk.
Fair Use Exemption Factor #1: Purpose and Character
The first fair use factor examines the purpose and character of the use, and whether the use is commercial. “So, this is part when churches say, ‘We're a non-profit, we're good.’ But that's only one piece of it,” Shinen says. “Being non-profit doesn’t mean your use isn’t commercial and even a non-profit use must still be a ‘fair’ one. In fact, the statute literally says the use should be for education, teaching, criticism, social commentary - there's a short list of examples.” Where do most churches miss the first factor? Shinen says churches typically use outside content to entertain or set the mood, not transform it.
Churches may think – we are teaching! But Shinen says there’s a huge difference between teaching about or commenting on a play and performing one. “How is taking an existing piece of content and just adding some scriptures or adding a spiritual mix to it, really commenting on the original? What courts have said in cases like these is that you’re just using the value of someone else’s property to add value to your own. And that's theft.”
Fair Use Factor #2 - Nature of the Original
The law provides a thinner layer of protection for fact-based creations as opposed to fictional works. So, in some ways, historical content has less copyright protection. But Shinen explains the creative expression of “facts” in a production like Hamilton provides more protection. “Hamilton takes historical facts and creates a completely original expression. So, there's a huge amount of protection on that because we don't just stumble into creating a musical out of historical fact. That's a creative expression. Somebody puts some sweat into that one. When we look at this factor of the analysis, it weighs against fair use because the creative expression is so prominent.”
Fair use factor #3 - The Amount and Substantiality of the Original
So how much of the play are you using? 1%, 10%, 100%? Does it matter? Shinen says it does, but there are still no guarantees that using a small percentage will work. “When it comes to a play, a film, a song, and our argument for fair use, it’s not often we can make a valid argument to use the whole original content. Instead, we need to use as little as possible," Shinen says. “You may have heard people say, ‘If you use 10% or less, that's clean,’ but that’s false. One frame of a film can infringe. There’s case law on that. The 10% content is one some courts may follow, but it is not the law at all.” The less you use of the original, the more likely this factor weighs in your favor.
Fair use factor #4 - Your Use Supplants the Market for the Original.
If you’ve taken attendance or dollars that would have gone to the original content, then you’ve supplanted the market for the original. In other words, if people, watch your Hamilton and thus, forego watching the real Hamilton, you’ve supplanted the market for the original.
Shinen says churches might think, “We aren’t charging admission – we aren’t putting dollars in our own pockets.” But he says a court could rule that the impact of doing popular plays does bring dollars for the church - even without admission fees. “I do think there's an economic argument that takes place when you use somebody else's material and it doesn't look directly financial because you're not charging admission, but you're getting the donors or the tithers coming in because of it,” he explains.
Religious Service Exemption
Some churches will also mention the “Religious Exemption,” which allows, “…the public performance 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 or other religious assembly at a place of worship.”
Shinen explains, “For the ‘religious exemption’ to apply, the original content has to be a nondramatic literary or musical work, or a dramatico musical work of a religious nature, like maybe Jesus Christ Superstar. If it's not one of those things, the religious exemption does not apply, period." Also, the use has to take place at a place of worship and during services or other religious assembly. That further limits the use.
He also wants to remind churches that trademarks in a production can also be under a separate protection. “In regards to NFL games shown at churches, for example, the NFL sort of settled with churches and said, you can show the game, you can't charge admission, but no team logos, no team colors,” he adds. “Before that ‘understanding,’ churches were at risk of a copyright infringement action for showing NFL games at church.”
There’s also the difficulty that many times one copyright incorporates multiple other copyrights. Think of music in a film, or film content in a TV show. “If you assess fair use or the religious exemption for one piece of property, you must also assess it for each piece of property within the first piece of property.” He adds. “It gets pretty complicated when you have dozens of copyrights within a copyright. And that’s without even getting into whether you’re permitted to change an original work, which might be a violation of the right to made derivative works.”
Tony Parker
Spiritual Twist production of Pygmalion in Garner, North Carolina
Spiritual Twist
Bottom line - A church needs a permission or an exemption. How do you get permission? Spiritual Twist Productions in Garner, North Carolina is a theater group that does what The Door Church tried with Hamilton. The children’s theater performs well known theatrical works with a Christian spin– but they take copyrights very seriously. “We are extremely careful to abide by the various copyright parameters that come with each script,” says Barbara Long, the executive director for Spiritual Twist Productions. “We license material through various resources, which often have specific limitations in their contracts. For instance, one of our sources only
Barbara Long, Executive Director, Spiritual Twist Productions, Garner, North Carolina
allows videography for posterity’s sake and will not allow for distribution beyond cast members. Each publishing company is a little different in how they handle their licensing.” Long says they find material through recommendations, searching the internet and submission by writers. They also produce material that has been written by their own community. That process always starts with a public domain search before writers even begin to create scripts. “Once a story is in public domain then a script can be written and ‘spiritually twisted,’” says Long.
Their most recent performance was Gatsby: A Prodigal Story. Since F. Scott Fitzgerald's work is now in public domain, the author of the play has taken the liberty to layer the story of Jay Gatsby and Jesus' parable of the prodigal son. It uses Fitzgerald's characters in the 1920s while staying true to the biblical parable. “When Addison Horner, the author of the book, lyrics, and music, approached us about producing his work, we went through a long process that included a couple of read-throughs and several rewrites. Once we were all in agreement, Addison and STP signed a contract to license the material. This is the process we go through with all the writers in our community,” Long explains.
Spiritual Twist production of Little Women
She says they never change an original script without the permission of the author or authors. “It's important to understand that unless a piece of literature is in public domain, no one has the right to use the material or change the work. We have even reached out to foundations such as the C.S. Lewis foundation to ask for permission to write a new Narnia musical. Lewis' grandson continues to deny our request, so the only version that we can do is the one that has been authorized.” Spiritual Twist Productions is also a resource for original material with strong biblical messages. Long says, “Good quality scripts are hard to come by, but they are out there.”
We don’t know how much in damages The Door McAllen Church paid in the settlement, but Long believes the Church as a whole was publicly damaged. “As a Christian, it pains me to see other believers blatantly defy copyright laws,” she says. “As believers, we should be above reproach when it comes to protecting creative works.”
Licensing has a cost, but paying damages costs more.
Brock Shinen, Esq., Anaheim Hills, California
Shinen says a church might avoid a few thousand-dollar license fee, but end up paying hundreds of thousands in damages. “The owner could say, ‘We want statutory damages of $150,000 per infringement.’ A judge might say each night they put on the show was a separate independent infringement. If there are seven performances times $150,000 plus cost, plus attorney fees? Now we are talking a really chunky seven figure liability. It is mind boggling churches don't take this serious enough.’”
With Christmas coming, churches often use movies and plays. Shinen concludes, “If you're going use a movie or play, get a CVLI License or go find out if you can get permission directly from the producer or search low-cost licenses to perform local plays. Just run some searches and you might find there's a company down the street to get a license for Elf and show the whole film for 300 bucks.”
And while the law can be confusing, ignorance of the law is not a defense. At the very least churches could contact an attorney to find out if their performance meets any exemptions.
Copyright licensing organizations include:
Christian Copyright Licensing International
http://www.copyrightsolver.com/
http://www.copyright.com/
OneLicense.net
