Viewers have “not throw[n] away [their] shot” to see Hamilton: An American Musical since its 2015 Broadway debut. Amidst the COVID-19 pandemic in the summer of 2020, a taped version of the stage musical debuted on Disney+ and was viewed in millions of households. With the show’s growing streaming success, its Tony Award-winning costumes are available just a click and screenshot away and are accessible to more people than ever before. But as United States copyright law currently stands, these iconic costumes are unprotected from the growing threat of garment piracy.
This Note implores Congress to create an exception to the utilitarian-article ban that has thus far prohibited theatrical costumes from receiving copyright protection. In creating this bright-line exception, Congress would have to address the United States Copyright Office’s 1991 Policy Pronouncement, which stated that a policy of “nonregisterability” would apply to theatrical costumes. While courts are not required to follow the Office’s policy pronouncements, federal courts have followed this Policy as announced. A move away from this lack of protection through a bright-line exception to the utilitarian-article ban is needed because theatrical costumes fundamentally differ from other clothing. Unlike high-fashion designs, fanciful Halloween costumes, or off-the-rack clothing, theatrical costumes serve an artistic purpose at their core: these costumes allow an actor, on stage in a theatrical work of art, to portray a character. This performative function transforms theatrical costumes into a work of art, differentiating them from utilitarian clothing. As these costumes become more accessible to the public through streaming, costume designers require more protection for their work. An exception to the utilitarian-article ban specifically for theatrical costumes will strike an appropriate balance between artistic expression, protection for designers, fan expression, and future creativity.
*ALEX LACAMOIRE, LESLIE ODOM, JR., LIN-MANUEL MIRANDA & THE ORIGINAL BROADWAY CAST OF HAMILTON, The World Was Wide Enough, on HAMILTON (ORIGINAL BROADWAY CAST RECORDING) (Atlantic Records 2015) (streamed using Spotify).
a. J.D. Candidate, 2023, University of Illinois College of Law; B.A., 2020, Butler University. Many thanks to the members and editors of the University of Illinois Law Review for their professionalism and guidance in publishing this Note. Special thanks to Professor Matthew E. Braun and Joe Luzadder for your assistance and feedback throughout this process. I would like to dedicate this Note to my sister, Anna, who introduced me to the Hamilton musical; to my brother, Jak; and to my parents, Sam and Libby. Thank you all for your support along the way.
The full text of this Note is available to download as a PDF.