Netflix applied for lawsuit this weekend against two TikTok stars in their early twenties, Abigail Barlow as well as Emily Bearclaiming that their Grammy-winning project The Unofficial Bridgerton Musical infringes copyright Netflixoriginal seriesBridgerton“.
Early last year, the songwriting duo began composing impressive ballads about the hit Netflix show for fun, posting them on TikTok. Them video were so popular that Barlow and Bear released an entire musical soundtrack based on “Bridgerton” and then beat legends like Andrew Lloyd Webber to win the 2022 Grammy Award for Best Music Album. This moment was a milestone, demonstrating the impact of social media on pop culture.
If this project has been going strong for over a year now, why is Netflix suing now? On July 26, the duo arranged full house at the Kennedy Center in New York with the participation of the National Symphony Orchestra and guest stars of Broadway. With tickets priced between $29 and $149 as well as a VIP upgrade, Netflix came out strongly after “repeated objections”, demanding an end to these commercial performances.
Based on the novels by Julia Quinn, Bridgerton was blown to smithereens. views records for Netflix originals. During the financial crisis and subscriber loss for a streamer, Regency romance is an important intellectual property.
Lawyers for Barlow and Bear first approached Netflix in March 2021 to ask for the streaming giant’s blessing to record an album and benefit show. Netflix, according to its own characterization in its lawsuit, said it does not sanction this activity, but it will not “[stand] on my way.”
For Netflix, performing at the Kennedy Center was too big a step. Barlow and the Bear did not have permission from Netflix to hold the event with tickets, but according to lawyers, Netflix’s permission is irrelevant to the issue of copyright infringement.
“It’s a very interesting fair use case,” said Casey Fizler, an associate professor at the University of Colorado Boulder who studies internet law and fandom. “That’s what law school exams are made of.”
Is Bridgerton Musical Legal? It’s Complicated.
“Barlow and the Bear’s behavior began on social media but has stretched ‘fanfiction’ far beyond its limits,” Netflix said in the lawsuit. “This is a gross violation of intellectual property rights.”
But the legal reality is not as clear cut as Netflix’s complaint makes it out to be.
Historically, fan work has sometimes been considered legal under the doctrine of fair use, which states that some copyrighted material may be used without explicit permission.
“I’ve seen a lot of people mean it because [Barlow and Bear] commercialize it, that means it’s a dishonest use,” Fizler told TechCrunch. “Whether something is commercial or non-commercial, it’s part of the fair use analysis, but it’s part of just one factor.”
Fair Use Analysis considers the purpose of the work (is it commercial?), the amount of copyrighted material used, the nature of the work (how transformative is it?), and how the work can economically impact the original.
Fizler told TechCrunch that there have been many examples of commercial fanwork that has been found to be fair in court, although there is not much case law and precedent as these disputes are often resolved before they reach a judge.
In 2015, a New York federal judge ruled in favor of 3C, an off-Broadway play that offered a darker, more adult version of the 70s TV show Three’s Company. The copyright holder of Three’s Company argued that the production qualified as an infringement, but the judge wrote in a lengthy ruling that the play was “very transformative parodyso it didn’t pose a market threat to the original show.
But some commercial fan-works have not been successful in court. “Prelude to Axanar”, a short film based on Star Trek that premiered at the 2014 San Diego Comic Con after fans raised over $100,000 on Kickstarter. The short film was such a success that its creators decided to make a feature film called “Aksanar”, which raised over a million dollars from the fans. The filmmakers assumed they were protected by fair use, but when Paramount sued them, the judge sided with the rights holders.
“Copyright law only applied to professional artists. […] and lawyers,” Fisler said. “Before the Internet, why did you need to know anything about copyright?”
But with the advent of fan communities online, even teenage fanfiction writers have had to navigate the tricky territory of sharing derivative art. It is not uncommon to see copied diatribes on fanfiction sites in which the author states that they “don’t knowcharacters like Dean Winchester, but from a legal point of view, these reservations do little. While monetizing fan art is not inherently illegal, the popular fanfiction website Archive of Our Own (AO3) forbids its authors from getting money advice from readers to avoiding murky legal situations.
“There is a very strict no-commercialization policy in many fan communities,” said Rebecca Tushnet, a professor at Harvard Law School who is on the Transformational Works Organization (OTW) legal team that runs AO3 (Fisler also works with OTW, but neither does she, neither Tushnet speak for the group).
With a few notable exceptions (looking at you, Ann Rice), fan art tends to go unnoticed until it’s monetized. But once the fan creator starts making money, the copyright holder might take a closer look at him.
“When a work is commercial, it has to do a lot more in terms of adding something new—criticizing, parodying, or shedding new light on the original,” Tushnet said. “Ordinary fanfiction is not commercial.”
Bridgerton isn’t the first media property to inspire a collaborative musical on TikTok. Arising from random viral moment“Ratatouille: The Musical TikTokPremiered as a one-day charity live broadcast for Actors fund in January 2021. For these products, the issue of fair use was irrelevant because the copyright holder, Disney, did not sue.
“While we have no development plans for the game, we love it when our fans are interested in Disney stories,” Disney said in a statement to the Los Angeles Times. “We applaud and thank all online theater creators for helping the Actors Fund during this unprecedented time of need.”
In 2009, students at the University of Michigan wrote and directed the musical A Very Potter, a parody of the Harry Potter books (starring then-unknown Darren Criss, now an Emmy and Golden Globe winner). When a young theater troupe uploaded performance on YouTube under the name Team Starkid, it became so viral that Warner Brothers took notice. While Starkid has never been sued by the Harry Potter copyright holder, its members have stated that they reached en agreement with Warner Brothers not to charge admission to any Harry Potter-related shows.
Likewise, as soon as Barlow and Bear began to profit from their Bridgerton-inspired songs, their work became a target for Netflix. Is turning a TV show into a musical transformation enough to be considered fair use? It’s up to the judge to decide, but Tushnet doesn’t see it as a particularly strong argument.
“Parody or not, you want to do something noticeably different from [the original]other than just transferring it to a new medium,” Tushnet told TechCrunch.
What’s Next for the TikTok Musical
Barlow and Bear’s legal team has yet to respond to Netflix’s complaint. They could negotiate with Netflix or take the matter to court (Barlow and Bear did not respond to TechCrunch’s request for comment).
“The only argument I can think of is the fair use argument.” Fisler said.
Netflix’s complaint does not violate fair use law, as Barlow and Bear have yet to make that claim. But Netflix is hinting at potential economic losses from the unauthorized musical that could matter in a case against fair use.
To capitalize on the series’ popularity, Netflix hosted an event in March 2022 called “Queen’s Ball: A The Bridgerton Experiencein six cities, hosting a Regency ball. According to Netflix, the unofficial musical “undermines” the company’s ability to personally host Bridgerton’s immersive events.
TikTok is giving way to new fandom communities that are growing independently of old fan networks like AO3, Tumblr or even LiveJournal (TEAR). The downside, however, is that fans are losing the institutional knowledge of the longtime denizens of the fandom who have fought for so long to protect non-commercial fan works.
“Personally, I hope that [the case] settles,” Fisler said. “If it goes to court and Netflix wins, I might worry a little about setting a precedent for future fan-made work.”
Credit: techcrunch.com /