Under what circumstances does the producer of Hamilton tell a judge that one cannot copyright historical facts about Alexander Hamilton’s life? One-two-three-four-five-six-seven-eight-nine. There are ten things you need to know about a dismissal motion filed on Friday in a lawsuit that’s now pending in New York federal court.
Number one!
Hamilton, Lin-Manuel Miranda’s musical about the American founding father, based very loosely on historian Ron Chernow’s biography, is a smashing success. At this point, pretty much everyone knows that. Originally costing $12.5 million to mount, the production has raked in more than a billion dollars in sales.
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Number two!
Audiences want more, and Hamilton producer Jeffrey Seller aims to satisfy appetite for the 10-dollar-founding-father-without-a-father. He rallies the creative team behind the musical to develop an immersive museum exhibition. An audio tour is narrated by none other than Miranda. Many of the ideas come from Hamilton set designer David Korins. And in 2016, Tom Zaller and Imagine Exhibitions Inc. are hired to be the production manager for this exhibition.
Number three!
The development of this exhibition doesn’t go smoothly. Imagine Exhibitions says it negotiated the essential terms of a lease in Chicago, sourced hundreds of historical artifacts for potential display and developed a script, but the Hamilton team wasn’t satisfied. According to Seller’s team, despite representations to the contrary, there was never any deal with the Chicago Museum of Science and Industry to host the exhibition. An alternative venue had to be found. The budget went from $6 million to $8 million to nearly double that, as Imagine Exhibitions allegedly provided little thought to actual cost.
Number four!
Hamilton Exhibition LLC, the entity established by Seller, files suit in New York with fraud and contract claims against Imagine. Alleging that it never received a usable narrative script, Seller’s company targets “subpar work product and unresponsiveness” and seeks compensatory damages. In June, a federal judge rejects most of the claims (see here) — but allows the plaintiff to try again, which Seller does (read here).
Number five!
Behind schedule, the Hamilton exhibition finally opens on Northerly Island in Chicago on April 29. While it receives a warm review from the Chicago Tribune — “God fave the chutzpah of a creative team that spares no expense to give history a giant, gorgeously decorated stage and trust that 21st-century Americans will pay good money to go see it” — it evidently doesn’t meet commercial expectations. The exhibition closes on August 25, which according to Zaller’s team, is months earlier than originally expected. And Imagine puts blame on Seller, stating in court documents that he frequently ignored planning advice and instead incorporated “impractical design ideas” from Korins.
Number six!
While it may be a bit of an exaggeration to say Alexander Hamilton “practic’ly perfected” the practice of law, he does deserve credit for helping the American judicial system declare independence from English courts. And American judges have exploited their sovereignty in all sorts of noteworthy ways. Take copyright. Original expression gets protection. Bare historical facts don’t. The selection and arrangement of these facts may, but per the Supreme Court in Feist Publ’s, Inc. v. Rural Tel. Serv. Co., only when there’s some show of creativity, not because of “sweat of the brow,” or reward for the hard work that went into compiling facts. And when it comes to historical fiction, yes, copyright can be had, but only upon a careful parsing of protectable fictionalizations from unprotectable interpretations.
Number seven!
Could Chernow have sued Miranda for ripping off his book? Would Miranda have had a colorable defense premised on using unprotectable historical facts? We’ll never know because Miranda attained a license to Chernow’s Alexander Hamilton and cut the historian into profits from the hit musical.
Number eight!
And how about Miranda’s Hamilton? Is that entitled to copyright? Yes, it’s the original expression that counts, and even if it’s based on Chernow’s preexisting work, derivatives are entitled to their own copyrights. For example, see this opinion about a different theatrical production.
Number nine!
Back to the legal war between Seller and Zaller: In counterclaims (read in full), the latter demands to be compensated for all the sweat that went into the Hamilton museum exhibition and has apparently registered associated work with the U.S. Copyright Office. According to court papers, the registrations include illustrations executed by Imagine that depict the design of specific rooms, including one showing the Battle of Yorktown, another an interactive display illustrating policy debates reflected in the Federalist Papers, and yet another showing the infamous duel between Hamilton and Aaron Burr. Zaller’s company says the work contains “extensive detail and evidence hundreds of creative choices” and that Seller’s company “relied heavily on these Works in creating derivative works that formed significant portions of the final version of the Exhibition.”
Look him in the eye, aim no higher; summon all the courage you require. Then count (one-two-three-four-five-six-seven-eight-nine, number-ten paces, fire!)
“The Exhibition is a work of non-fiction that provides a factually accurate account of Hamilton’s life story and his contributions to the American Revolution and the founding of our nation,” states Friday’s motion to dismiss (read here) from the Hamilton producer, adding that Imagine hasn’t even attempted to identify any protectable, original expression.
“That IEI does not allege that the Exhibition copied IEI’s original expression is no accident,” continues the court brief. “As IEI admits, David Korins Designs was responsible for designing the Exhibition, not IEI. Indeed, throughout the Counterclaims, IEI goes out of its way to distance itself from the final Exhibition, blaming its lack of commercial success on Counterclaim Defendants’ and DKD’s design choices and their unwillingness to follow IEI’s recommendations. Simply put, IEI cannot copyright historical facts about Hamilton’s life, and the Exhibition cannot infringe IEI’s Works merely because it covers the same historical subject.”
