Bloomberg Law
Oct. 22, 2019, 8:46 AM

Hamilton Spat Shows Challenge in Carving Copyrights From History

Ian Lopez
Ian Lopez
Senior Reporter

A legal fight involving a producer of the Broadway megahit “Hamilton” highlights the challenges of proving that historical information deserves copyright protection, attorneys say.

Hamilton Exhibition LLC allegedly infringed copyrighted materials, including illustrations depicting designs of exhibit rooms featuring events like Alexander Hamilton’s fatal duel with Aaron Burr, with its historical exhibit in Chicago, according to a counterclaim by Imagine Exhibitions Inc.. Hamilton Exhibition had sued IEI for breach of contract after a partnership to produce the exhibit went sour.

The two sides are negotiating a settlement, according to court filings. Attorneys said IEI faced an uphill battle to demonstrate that Hamilton Exhibition infringed the arrangement of factual information, along with how it was represented, because facts can’t be copyrighted.

“Whenever you’re dealing with things like this, it’s really important to distinguish between the story and the facts,” John L. Krieger, an intellectual property attorney at Dickinson Wright PLLC, said. “Whenever you’re dealing with a case involving historical references or facts, make sure you’re being critical in your analysis.”

Willkie Farr & Gallagher LLP, which is representing Hamilton Exhibition, didn’t immediately respond to request for comment. Greenberg Traurig LLP, which represents IEI, declined to comment.

Failed Partnership

Hamilton Exhibition, which had hired IEI to help produce the exhibit, alleged IEI caused “a calamity of errors” and millions in damages, delivering unusable work, missing deadlines, and more, according to an amended complaint filed in July in the U.S. District Court for the Southern District of New York.

IEI countersued, alleging it approached Jeffrey Seller, a producer of the Hamilton musical, with the idea for an exhibition. IEI contends that it was abruptly and unjustly terminated, and that Hamilton Exhibition infringed its copyrights with its final product.

Hamilton Exhibition, which was formed by the “Hamilton” producers, moved to toss the copyright counterclaims in September, arguing that “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.”

Hamilton Exhibition argued that its exhibit is a nonfiction account of the Founding Father’s life, and that the copyrights that IEI is asserting are devoted to a historical subject that doesn’t merit intellectual property protection.

Hamilton Exhibition also pointed to the U.S. Court of Appeals for the Second Circuit’s 1980 decision in Hoehling v. Universal City Studios, Inc., in which the court found that the “protection afforded the copyright holder has never extended to history, be it documented fact or explanatory hypothesis.”

Problematic Principles

Two principles in copyright law can help defend against such infringement claims, Susan Scafidi, founder and academic director of Fordham University School of Law’s Fashion Law Institute, said.

The first is the merger doctrine, which “says if there are only a few ways to express ideas—the fact that Alexander Hamilton had a duel—if there’s only so many ways to say it, then the idea and expression merge. And so copyright is very limited,” Scafidi said.

The other is the scènes à faire doctrine, which prevents scenes essential to the treatment of a topic from being protected via copyright. Hamilton Exhibition argued the doctrine “applies with special force in the historical context,” noting that the Second Circuit in Hoehling recognized the near impossibility of writing about a historical era without employing specific literary devices.

“If you’re shooting a Western, you have to have cowboys and horses. If you’re shooting a Hallmark romance, you have to have a sunset and a Gazebo,” Scafidi said.

Copyright protection doesn’t extend to historical facts, attorneys say.

Copyrights are designed “to protect the particular realization in the expressive details of work, but it’s not to protect a rote or formulaic recitation of historical facts that should be free to all of us,” David Aronoff, partner at Fox Rothschild LLP, said.

Owning the rights to historical ideas, Aronoff said, “would be antithetical to the First Amendment right that filmmakers and other storytellers have to entertain and educate us with their creative work.”

Creative Expression

Some works related to historical events can be protected. Biographies about famous people, as well as articles about historical events, are to some extent protectable by copyrights, said Art Neill, founder and executive director of New Media Rights, a California Western School of Law nonprofit legal services program.

While the fact that Hamilton and Burr dueled isn’t copyrightable, specific artworks and designs involving the duel can be, Neill said.

“You’re always asking, what is the historical fact and what is the expression. And trying to separate these two things is the challenge,” Neill said. “Copyright law protects the expression of the idea, not the idea itself.”

Jason Bloom, head of Copyright Practice Group at Haynes and Boone LLP, noted another example of copryrightable creative expression—the “Hamilton” musical itself.

“They don’t want to take too strong of an approach regarding the copyrightability of creative expression of historical facts, because that’s what their whole play is,” Bloom said.

“It comes down to what was copied, and that is that something that is really copyrightable,” Bloom added. “Did they actually copy design or just focus on historical facts that are not copyrightable?”

To contact the reporter on this story: Ian Lopez in Washington at

To contact the editors responsible for this story: Rebecca Baker at; Keith Perine at