Canadian high school Wexford Collegiate School for the Arts created headlines last week after YouTube clips of the school’s students performing songs from the musical Hamilton circulated online. Unfortunately for the staff and students who were involved, the musical performances have already been removed from YouTube, and online commentators, such as Howard Sherman from Arts Integrity, called out Wexford Collegiate for infringing copyright. However, the situation is more nuanced than it appears at first blush, and it is important for amateur productions and education institutions to understand their obligations, and rights, when it comes to performing theatrical compositions.
It is uncontroversial that Wexford Collegiate requires licences to perform the literary, dramatic and musical work that comprises Hamilton and to post this performance online. The literary and dramatic works include Hamilton’s dialogue, staging, characters, costumes and choreography; the musical works are the musical compositions and their lyrics.
While the owners of the copyright which subsists in Hamilton may, for the time being, have no desire to licence their work to others, individuals and organizations such as Wexford Collegiate can still comply with Canadian copyright law in order to perform the musical compositions from Hamilton in limited circumstances.
Many musical rights in Canada are administered by collective societies. These collective performance rights are known as “small rights.” “Small rights” are contrasted with “grand rights,” which, for present purposes, are rights that cover the performance of theatrical works, operas, ballets and other dramas. The standalone performance of a musical work from a theatrical production, without the use of costumes or sets, is not a “grand right;” it is a “small right” administered by SOCAN and other copyright collectives.
Given that “small rights” are administered collectively, the royalties payable for such rights are set by the Copyright Board of Canada. While Wexford Collegiate may not have been aware of the copyright tariff regime, the school could have offered offer to pay the appropriate copyright tariff for the public performance of the musical compositions they sang from Hamilton. A tariff has been certified for the use of musical compositions by municipal, school and similar community recreational facilities (SOCAN Tariff 21) and requires the payment of fairly modest royalties.
SOCAN’s tariffs do not, however, deal with the performance of a musical work in combination with acting, costumes and sets; these “grand rights,” which include many of the other protectable elements from Hamilton, would have to be licenced from the various creators of Hamilton. This leaves Wexford Collegiate in a scenario where, should they offer to pay the relevant SOCAN tariff to perform the musical compositions, they are able to publicly sing musical compositions from Hamilton, just without the accompanying characters, costumes, dialogue, staging or choreography. Where the students went wrong was to try to stage a small-scale theatrical version of Hamilton, complete with choreography, costumes and sets. Such a performance requires a “grant rights” licence, which the creators of Hamilton are unlikely to grant at the present time.
A second issue arises with respect to the posting of videos of the Wexford Collegiate performances of Hamilton songs on YouTube. While YouTube, as a streaming service, is subject to copyright tariffs pursuant to SOCAN Tariff 22.D.2 for the communication to the public by telecommunication (a “small right”), Wexford Collegiate would be required to make a reproduction (perhaps many reproductions) of their filmed performance of the Hamilton songs. Even if the students performed a “small rights” performance, there is no collective which would be able to grant such reproduction rights and, therefore, there is no tariff for the reproduction right required in this circumstance. Any reproduction of the Hamilton musical compositions, including any reproduction of the public performance of those musical compositions in order to post the video to YouTube, would require a private licencing agreement with the composer and music publisher.
Lastly, it must be considered whether the Wexford Collegiate performances might qualify for an exemption under Canadian copyright law. There are several exceptions to copyright infringement that Wexford Collegiate could potentially rely on. For example, had Wexford Collegiate students performed and recorded the Hamilton songs with completely different (and satirical) characters, costumes and choreography (rather than trying to reproduce the original performance on a more limited scale), a strong argument could be made that the fair dealing exception for “parody” or “satire” would apply. Another possible fair dealing purpose available to Wexford Collegiate would be “education.” However, given that such purpose has yet to be addressed in great detail by a Canadian court, there is little clarity surrounding education and fair dealing.
Lastly, section 29.21 of the Copyright Act may apply to the YouTube reproductions so long as the online postings were done for non-commercial purposes (and the other requirements of the section are satisfied). Note, however, that even if one or more Canadian copyright exceptions were to apply, YouTube will apply American copyright law to determine whether there has been any infringement. It is likely that the US law would provide even less scope for the posting of such videos than Canadian law.
While Wexford Collegiate may have been ill-advised to perform musical compositions from Hamilton and post videos of the performances on YouTube, there were avenues available to the school to engage their students’ creativity while complying with Canadian copyright law. Hopefully Wexford Collegiate’s story can provide a useful roadmap for similarly situated institutions who want to use copyrighted material for artistic and educational purposes.