When copyright infringement to intersects religious zeal, things get weird fast. In 2014, the Westboro Baptists performed, recorded, and distributed an anti-Semitic version of “Hey Jude” they cleverly called “Hey Jews,” and although no legal action was taken,[1] I thought it was a pretty good example as to why “remix culture” is not always a positive thing and why copyright owners may enforce their rights for reasons other than financial harm.
This week it was reported that The Door Christian Fellowship Ministries of McAllen, Texas not only performed and livestreamed the musical Hamilton without a license, but the organization also took the liberty of revising some of the show’s lyrics to convey various religious messages and then ended the performance with a sermon that seems to equate homosexuality with alcoholism and drug addiction.
Allegations of homophobia notwithstanding, the copyright infringement is clear, and it is unknown whether the owners of Hamilton will take legal action beyond the Cease & Desist notice sent to The Door McAllen. For copyright watchers who may ask whether the church is entitled a religious exemption under the law, the relevant part of the statue (Section 110) states that the following is not an infringement of copyright:
(3) 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 at a place of worship or other religious assembly.
So, this exemption does not apply. Hamilton is a Dramatic Musical Work and is not a work of a religious nature. A license to perform the show is required, whether in a church or anywhere else, and changing the expressive elements of the work can only be done by permission of the copyright owner(s). Also, it is notable that Door McAllen is not some small-town church hosting bake sales to fix its roof before Winter. It appears to be one of many God, Inc. enterprises with satellites around the world, a substantial media/entertainment production capacity, and a slick website.
If the owners of Hamilton choose to take further legal action, Door McAllen does not have a reasonable defense as a matter of law, but given the climate in which we live, legal merit would not necessarily stop a potential litigation from becoming a PR circus. Because the statutory exemption under Section 110 does not apply, Door McAllen would presumably assert a fair use defense, claiming that its changes to the Hamilton book were “transformative” under factor one. This defense would, naturally, be entangled with strenuous appeals to the speech and religious exercise rights under the First Amendment, which just might confound at least a district court.
I know I’m speculating here, which my attorney friends would never do, but Door McAllen has already infringed the copyright rights attached to one of the most famous works in the world, and it is too sophisticated an organization to claim ignorance about the nature of its conduct. Further, Hollywood Reporter writes that pastor Roman Gutierrez, in addition to stating that the church is “not anti-LGBTQ,” did falsely claim that license was obtained to perform the show. At the very least, this implies that the church was aware that a license is required, and according to a spokesman for Hamilton, the producers “[do] not grant amateur or professional licenses for any stage productions and did not grant one to The Door Church.”
We don’t know what, if anything, will happen next, but The Door McAllen already reveals certain behaviors we have seen in other parties who willfully infringe copyrighted works, and given the way “religious exercise” warps the principles of law for many folks (and judges), this may not be over. Wouldn’t that be a show? A constitutional demolition derby involving the biography of a constitutional framer. Sounds about right these days.
[1] Though at some point, the video was removed from YouTube.
