The full story behind Netflix’s copyright infringement lawsuit against Barlow & Bear, and why it’s actually a win for the fan fiction community.
When it comes to copyright cases, Netflix has seen stranger things. It’s usually on the receiving end of the “I came up with it first!” claims that successful shows tend to attract like a magnet. But this time, Netflix is the one doing the suing, and it’s targeting the creators of “The Unofficial Bridgerton Musical” with what I’ll call “The Official Bridgerton Musical Copyright Infringement Lawsuit” (read here).
The crown jewel at the center of the case is Bridgerton, a Regency-era drama series that follows the love lives of the Bridgerton family through the lens of Lady Whistledown, the town’s pre-internet version of Gossip Girl. Produced by Shonda Rhimes’ Shondaland and based on the novels by Julia Quinn, Bridgerton was seen by a then-record 82 million households when the first season premiered on Netflix in early 2021.
Ok, But What if Bridgerton Was a Musical?
“The Unofficial Bridgerton Musical” project started with a January 2021 video on songwriter Abigail Barlow’s TikTok account, in which she asks, “Ok but what if Bridgerton was a musical?” Barlow then proceeded to sing the opening verse to what would eventually become the first of a full 15-song concept album setting the world of Bridgerton to music. Along the way, millions of TikTok users listened, joined in, and provided real-time feedback to Barlow and her writing partner, composer Emily Bear.
Fast forward to September 2021 when “The Unofficial Bridgerton Musical” became the top album on iTunes’ U.S. pop charts within just two hours of its release. Later that month, Barlow & Bear were invited to perform at the Kennedy Center’s 50th Anniversary Celebration Concert.
But that was only the beginning. The duo’s passion project was nominated for a 2022 Grammy Award in the Best Musical Theater Album category. In April, against all odds, Barlow & Bear took home the trophy over such Broadway luminaries as Andrew Lloyd Webber and Stephen Schwartz.
Ok, But What if Netflix Was Cool With the Bridgerton Musical?
Just as remarkable as Barlow & Bear’s success was Netflix’s response. Remember: the “Bridgerton Musical” wasn’t just “unofficial”; it was entirely unauthorized. Netflix could have sent Barlow & Bear a cease and desist letter hand-delivered by Regé-Jean Page. Instead, numerous individuals involved in the creation of Bridgerton, including actors, producers, and Netflix itself applauded the project, saying they were “Absolutely blown away by the Bridgerton musical playing out on TikTok.”
Netflix’s reaction to “The Unofficial Bridgerton Musical” was hailed by the fan fiction community, a group that has historically faced a tenuous relationship with the owners of the intellectual property that serves as inspiration for their work. Coming on the heels of Disney’s support of an unauthorized Ratatouille musical staged for charity, Netflix’s encouragement of “The Unofficial Bridgerton Musical” offered new hope for the creators of fan fiction.
If anything, Netflix went further than nearly any other content creator has gone before in terms of the latitude it gave Barlow & Bear; not only to create an album based directly on its intellectual property, but to sell that album (as well as ancillary songbooks) for a profit. And unlike the vast majority of songwriters and performing artists who have relinquished ownership rights to musical publishers and record labels, Barlow & Bear decided to release “The Unofficial Bridgerton Musical” themselves, which means keeping more of the earnings. “[W]hy sign a label deal and not own all of our masters and publishing?,” Bear told The New York Times shortly after the pair’s Grammy win.
But according to Netflix, whatever implied authority Barlow & Bear may have had to release “The Unofficial Bridgerton Musical” carried an express limit: no live performances of the musical. The streamer claims that this was a “clear line” that was conveyed to the duo back in August 2021, before their album was even released on Spotify. “Netflix would not authorize and did not want them to engage in any live performances (e.g., performances of “The Unofficial Bridgerton Musical”) or other derivative works that might compete with Netflix’s own planned live events,” including the multi-city “Bridgerton Experience.”
Ok, But What if the Bridgerton Musical Was Performed at the Kennedy Center?
Netflix alleges that Barlow & Bear repeatedly assured Netflix that they had no remaining Bridgerton-related plans other than media interviews following their Grammy win. But then, in June, the pair’s representative told Netflix for the first time that they would be performing “The Unofficial Bridgerton Musical” at the Kennedy Center in Washington D.C. on July 26, 2022. Barlow & Bear have planned a subsequent performance for September 20 at the Royal Albert Hall in London. As of the time I’m writing this, tickets are still up for sale.
Multiple times throughout June and July 2022, Netflix informed Barlow & Bear’s lawyers that their July 26 performance wasn’t authorized and would give rise to claims for willful copyright and trademark infringement unless they negotiated a license—which Netflix was willing to do. According to its complaint, “Netflix offered Barlow & Bear a license that would allow them to proceed with their scheduled live performances at the Kennedy Center and Royal Albert Hall, continue distributing their album, and perform their Bridgerton-inspired songs live as part of larger programs going forward. Barlow & Bear refused.”
Over Netflix’s objection, “The Unofficial Bridgerton Musical” premiered on July 26 for a one-night Kennedy Center event. Ticket prices ranged from $29 to as high as $149 apiece for a VIP meet and greet with Barlow & Bear. Fans willing to drop even more money could allegedly buy clothing, keychains and other merchandise at the venue, all of which featured the “Bridgerton” trademark. Netflix claims that Barlow & Bear continued to represent that the trademark had been “used with permission” long after Netflix formally objected. The last time I checked the Royal Albert Hall’s website, that language is still being used.
Ok, But What if Netflix Filed a Lawsuit?
Netflix filed its lawsuit against Barlow & Bear on Friday, July 29, 2022. Over the weekend, Bridgerton fans on TikTok and Twitter weighed in, with a surprising number of them blasting Netflix for waiting until Barlow & Bear turned a profit before bringing suit:
Ok, But What If Netflix Was Right?
While I’m pretty sure that anyone who actively participates in creating Bridgerton fan fiction doesn’t actually, in fact, want Netflix shutting down their works at the very earliest opportunity, let’s get a few things straight. First, as far as copyright cases go, this one’s easy. Barlow & Bear have never suggested that “The Unapproved Bridgerton Musical” is anything other than a straight-ahead derivative work which Netflix had the right to control. As recently as three months ago, when asked whether it was likely that the musical would be staged at some point, Emily Bear responded that “[i]t’s a bit out of our court because we don’t own the I.P. . . . Netflix, you know where to find us.” In a separate interview, Abigail Barlow acknowledged that “That ball is thoroughly in Netflix’s court.”
The Unofficial Bridgerton Musical Isn’t Fair Use
While Barlow & Bear may now try to argue that their work constitutes fair use, it’s a weak defense in this case. Unlike unauthorized musical spoofs like “Stranger Sings, “The Office! A Musical Parody” and “Friends! The Musical Parody,” “The Unofficial Bridgerton Musical” isn’t the type of parody musical that courts have often found to be fair use under the Copyright Act. Fair use can certainly exist in the absence of parody, but here, Barlow & Bear took the characters, plot and even verbatim dialogue from Bridgerton and used these elements to faithfully tell what’s essentially the same story in musical form.
In doing so, Barlow & Bear are competing directly with Netflix’s own live event “The Bridgerton Experience,” as well as any official musical that may be in the works. And while it may be difficult in close cases to determine when a work of fan fiction usurps the market for the original, I’m pretty confident that performing your musical at the Kennedy Center for up to $149 a head crosses the line. Frankly, if Barlow & Bear’s work doesn’t infringe Netflix’s exclusive right to create derivative works under copyright law, I’m not sure what would.
Netflix Didn’t “Wait Too Long to Sue”
As for the notion that Netflix should be prevented from suing Barlow & Bear because it somehow “waited too long,” that doesn’t fly either. As the rightsholder, Netflix has the ability to dictate the terms on which fans can utilize its works for commercial purposes. If those terms are violated, Netflix is entirely justified in enforcing its rights at that point—or choosing to let it slide. Unlike trademark law, copyright is not a “use it or lose it” proposition. Netflix decided to wait to sue Barlow & Bear until their passion project became a money-making endeavor, because it became a money-making endeavor.
In the Supreme Court’s opinion in Petrella v. Metro-Goldwyn-Mayer, Inc., Justice Ginsburg upheld the precise “wait and see” approach to copyright litigation adopted by Netflix:
It is hardly incumbent on copyright owners . . . to challenge each and every actionable infringement. And there is nothing untoward about waiting to see whether an infringer’s exploitation undercuts the value of the copyrighted work, has no effect on the original work, or even complements it. Fan sites prompted by a book or film, for example, may benefit the copyright owner.Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1976 (2014).
Before you start weeping over Barlow & Bear having to answer for crossing Netflix’s line in the sand, consider that they never could have released their Grammy-winning album in the first place without the company’s blessing. Barlow herself recognized this in an April 2022 interview, just months before her representatives announced the unauthorized Kennedy Center show: “We are eternally grateful to Netflix for even letting us release the concept album. That was a gift y’all. We wrote this for fun and to get out of our slump. We didn’t ask for permission to use their intellectual property.”
Ok, But What if Netflix’s Lawsuit Was Actually a Good Thing for Fan Fiction?
I’ll go a step further: Not only is Netflix’s copyright lawsuit entirely justified given the facts and circumstances, but it’s a good thing for all of the creators of Bridgerton fan fiction whose last names aren’t Barlow or Bear.
For years, fan fiction communities have operated under social norms that regulate the behavior of their members. First among these norms is the “golden rule” of fandom: “thou shalt not profit from fan fiction.” This principle serves the legitimate goals of copyright law, but for the fan community, it’s really grounded in common sense. When fan fiction is commercialized, it’s more likely to attract the attention of the original rightsholders, who may then employ heavy-handed enforcement tactics that can sweep up even non-commercial fan content.
A good example is the list of “Star Trek Fan Films Guidelines” adopted by Paramount and CBS Films following a highly-publicized legal battle over Axanar, a Star Trek fan film that used Kickstarter to help finance its $1.1 million budget. While the guidelines not surprisingly prohibit this sort of “commercial” production, they actually go much further than that.
Among other things, the Star Trek guidelines mandate that fan productions be “family-friendly” and not include “profanity, nudity, obscenity, pornography, depictions of drugs, alcohol, tobacco, or any harmful or illegal activity, or any material that is offensive, fraudulent, defamatory, libelous, disparaging, sexually explicit, threatening, hateful, or any other inappropriate content.” While these sort of “objectionable” uses of the Star Trek IP had never been affirmatively authorized prior to the Axanar debacle, they were generally tolerated.
Given the stakes at issue, fan communities are largely able to achieve compliance with communal norms through self-policing (including, in certain cases, public shaming). But when the norm against deriving profit from fan fiction is not followed, the copyright owner may decide to step in, at which point all bets are off. Sometimes, the bear doesn’t only bite the one who poked him.
Netflix’s Restrained Approach
This is why Netflix’s reaction to Barlow & Bear’s Bridgerton musical is so remarkable. The company didn’t file its lawsuit as a first or even second resort, but only after the artists decided to stage their musical at the Kennedy Center of all places, and only after they declined to take a license. This aspect of the lawsuit has been overlooked in most of the articles and social media comments I’ve read that are critical of Netflix, so it bears repeating: Netflix offered Barlow & Bear a license to perform an otherwise unauthorized derivative work. Was it a license on the world’s greatest terms? Probably not, but it sure beats getting sued.
The fact is that Netflix’s approach is both principled and surgical. Copyright owners should be able to defend their works against substantial unauthorized copying used for profit. Netflix’s position is easy to justify and respect for all except perhaps those who believe copyright shouldn’t exist in the first place. And fortunately for the Bridgerton fan community, Netflix hasn’t served a flurry of takedown notices on other unauthorized Bridgerton derivatives or issued draconian “fan guidelines” to accompany its complaint against Barlow & Bear.
In filing its lawsuit, Netflix has also leveled the playing field for other content creators, by preventing Barlow & Bear from becoming the de facto or “official unofficial” source of Bridgerton fan fiction. As musical theater writer Len Schiff posted on Twitter, “other writers deserve a fair chance to audition for a project like this. [Barlow & Bear] don’t get to plant their flag in Bridgerton because they made a well-received fan piece.”
In this regard, it’s also worth noting that Barlow & Bear have asserted copyright ownership over their Bridgerton musical, relying on the same legal regime that Netflix has used to protect its rights in the underlying series. I’ll leave for another post the very interesting issue of whether an unauthorized derivative work is even eligible for copyright protection. For now, suffice it to say that Barlow & Bear haven’t exactly dedicated their musical to the public domain.
Ok, But What If I Wrapped This Up Already?
Hearing about Barlow & Bear’s spectacular rise, followed by an equally-tragic fall, I’m reminded of a story from Greek mythology. Soaring through the air, caught up in the intoxicating power of flight, Icarus ignored his father’s advice. He flew too close to the sun, and as his wax wings melted, he plummeted into the sea below. If Barlow & Bear are looking for inspiration for their next musical, the story of Icarus would make a good choice. Even better, it’s in the public domain.
As always, let me know what you think, either in the comments below or @copyrightlately on social media. Meanwhile, as you wait for Season 3 of Bridgerton, you can check out Netflix’s full complaint here:View Fullscreen