As a result of their quixotic effort to secure the first high school performance rights to Hamilton, Wexford Collegiate School of the Arts’s Hamilton videos drew a great deal attention earlier this month, perhaps as much for being pulled from YouTube than from their short life online. A CBC video about Wexford’s efforts to gain the attention of the Hamilton team remains online, even though it contains material that was otherwise withdrawn from circulation due to claims of copyright infringement. That video has been seen much more widely than the original Wexford videos were, racking up many hundreds of thousands of views after being posted to Facebook by the CBC.
In the wake of the debate over the videos, Ann Merriam of Wexford Collegiate, who directed the Hamilton performances, responded to questions posed by Arts Integrity about the origin of the school’s Hamilton videos, and any public performances of the material. The questions were posed prior to the videos being removed from YouTube, with no anticipation that such action would necessarily take place.
Merriam said that the material from Hamilton was performed four times publicly, once at a show choir festival at the Etobicoke School for the Arts, once at a Benefit for Arts Education, and twice as part of the Wexford Variety Show. In addition to “Right Hand Man,” “Yorktown” and “Burn,” which appeared as videos, the songs “Alexander Hamilton,” “Guns and Ships,” and “You’ll Be Back” (identified by Merriam as “The King”) were also performed. In addition to the performance venues mentioned by Merriam, the students also performed on a program called “Breakfast Toronto” on the CityTV channel.
No specific budget for the performances was broken out by Merriam, who wrote, “Firstly, we are a public high school and don’t track costs by production. This project was all volunteers. I didn’t have any budget since it initially was not part of our programmed year.” However, Merriam did indicate that there were costume rentals both for the performances and for the video shoot (which was separate from the public performances), of “approximately $750-800” each time. In addition, Merriam wrote, “We paid $1,000 to a hip-hop artist to create original tracks.”
She explained that the cost of the rentals for the video shoot was covered by a group of parents from “People for Education,” since it fell outside of the school’s Variety Show activities. As for the director of the videos and the multiple choreographers, Merriam said they were all either volunteers or individuals who work regularly with the school on various assignments for small annual stipends. Approximately $1,200 was spent on equipment rentals for the video shoot.
Admission was charged to the Wexford Variety Show, where the six numbers were performed. Past shows have had a $20 (Canadian) ticket price. The 2016 price has not been confirmed. There were also tickets sold for the show choir event.
Given the furor that arose, there was commentary from many quarters. On the legal front, a post from Adam Jacobs, an attorney with Hayes eLaw in Toronto, was most helpful and informative, especially in regards to where US and Canadian copyright laws may differ. However, Jacobs was very clear about where Wexford had gone awry:
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….
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….
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.
The Dramatists Guild of America issued a statement on copyright in the wake of the Hamilton videos, without making specific comments about the Wexford situation. It read, in part:
When their work shows up in unauthorized productions, or on YouTube videos, it’s not just a matter of lost revenues. It is an infringement on the very nature of the dramatists’ authorship and a violation of their right to control their artistic expression. Even the non-commercial public use of their work by well-meaning fans, either on the internet or in amateur productions in their communities, can damage a show’s value in various markets, and it is a copyright violation under most circumstances. Most importantly, it undermines an author’s prerogative to decide when, where and how their work will be presented.
Finally, it is important to note that for every online commenter who castigated the Hamilton team for, apparently, asserting their copyright (“apparently” since the show has made no public statement on the situation to date), it seemed there was another commenter who took the students of Wexford to task, often quite unpleasantly, for their appropriation of copyrighted material. But what is clear from Merriam’s detailing of the context of the performances is that this was not a case of students going rogue, either in performing the material or sharing in hopes for more opportunity to perform Hamilton, but rather students participating in activities organized by and sanctioned by their school.
It is no surprise that the students were disappointed and confused when the videos were removed, because they were operating within the parameters they’d been given. Invective serves no purpose in clarifying this situation and bringing forward the proper practice for all to understand and learn from. Clearly that learning must come first for the faculty and administration of Wexford Collegiate, who from this point forward, will presumably operate within the guidelines of Canadian copyright law (and US law, where applicable) in all of the work presented by and at the school. Through them, successive classes of Wexford students must be taught what is and is not permissible, so that ultimately the students can preserve their own rights to earn a living from original work they create now and in the future.
One final thought: as the school campaigned for attention, media outlets were, as is their nature, attracted to this story because it involved a hot show and talented kids. Save for the CBC, which acknowledged in its original report that these performances were unauthorized (but still embedded the YouTube videos and created their own from them), there seemed to be little thought by video, print or online outlets as to whether they were distributing material that violated copyright. Since they would presumably fight the appropriation of their own material, it’s a shame that reporters, editors and news directors didn’t look at this situation more critically, before playing a role in disseminating material that was not properly licensed for performance or recording.