Netflix files lawsuit over 'Unofficial Bridgerton Musical'

24 August 2022. Published by Ela Broderick-Basar, Associate

On 29 July, Netflix filed a lawsuit in the U.S. District Court in Washington D.C. against two TikTok stars, Abigail Barlow and Emily Bear, alleging that their Grammy-winning “The Unofficial Bridgerton Musical” project infringed the hit show's intellectual property rights.

What exactly is 'The Unofficial Bridgerton Musical'?

In early 2021, Abigail Barlow and Emily Bear began releasing videos on TikTok, of songs they had written and composed inspired by the hit Netflix show, Bridgerton. What started as fan fiction content soon turned into a viral success. 

In March 2021, Barlow and Bear's legal team approached the streaming giant for its blessing to record an album and to perform the songs at a charity show. Netflix, according to the details in its lawsuit, said that it wouldn’t authorise the activity, but also wouldn’t “[stand] in the way.” Barlow and Bear went on to release a 15-song " The Unofficial Bridgerton Musical" album, which led to the duo winning the 2022 Grammy Award for Best Musical Album.  

Following Barlow and Bear’s album release, Netflix, according to the suit, informed the two that it would not authorise any live performances. 

So why is Netflix suing now? 

On 26 July, Barlow and Bear staged a sold-out performance at the Kennedy Centre in New York City, with tickets ranging between $29 and $149, plus VIP upgrades. The duo also went on to announce that there would be another live performance in September at the Royal Albert Hall in London. 

According to Netflix's complaint, upon hearing of the planned live performances', the streaming platform, "offered Barlow and Bear a license that would allow them to proceed with their scheduled live performances at the Kennedy Center (which went ahead on 26 July) and Royal Albert Hall, continue distributing their album, and perform their Bridgerton-inspired songs live as part of larger programs going forward." However, the pair refused the licence (for reasons unknown) and proceeded with the performance at the Kennedy Centre. 

This performance seems to have been a step too far for Netflix; the suit named four counts against Barlow and Bear including copyright infringement and infringement of registered trade marks, alleging that Barlow and Bear have "taken valuable intellectual property from the Netflix original series Bridgerton to build an international brand for themselves.

Barlow and Bear have since cancelled their performance at the Royal Albert Hall. It is not known whether this is in response to another issue raised in Netflix's complaint that the London show "threatens Netflix's plans for the "Bridgerton Experience in the United Kingdom" and that the Washington 'Bridgerton Experience' had been harmed by the concert at the Kennedy Centre.  The 'Bridgerton Experience' is an immersive performance Netflix currently has running in six cities in the US (with other leading Netflix shows having similar immersive experience attractions, such as Stranger Things).

A defence based on fan fiction? 

Given that intellectual property laws are inherently territorial, the position in the case as pleaded in the US does not necessarily map directly across to issues to be considered under English law.  

Netflix takes issue in the US with Barlow and Bear’s reported suggestion that they should be protected from allegations of infringement because what they are producing ultimately amounts to “fan fiction”.  Netflix said:

Barlow & Bear’s conduct began on social media, but stretches ‘fan fiction’ well past its breaking point.” 

Barlow and Bear’s potential arguments in the US could be framed around fair use on the basis that the work is 'transformative' and adds new meaning to the original work.

If the legal issues were to develop on this side of the Atlantic, there would be interesting questions around the scope and parameters of the defences such as parody and/or pastiche, and the extent to which any of Barlow and Bear’s works copy a substantial part of copyright-protected works.

Whatever the legal position, there are often delicate issues to balance when it comes to fan culture and fan fiction. Having an engaged fan community can be a huge positive for rightsholders (and the brands who may want to be associated with them). 

Rightsholders are perennially faced with weighing up the need to protect their economic and business interests versus maintaining positive relationships with consumers and fans. With a little assistance from platforms like TikTok, fandom communities have the ability to turn shows, movies, books or songs (amongst many other mediums) into over-night successes and viral sensations. 

What’s next for 'The Unofficial Bridgerton Musical'?

Dearest readers we will have to wait and see how Barlow and Bear choose to respond and, if the case does go to court (in the US and/or elsewhere), what implications this may have for the future of fan fiction.

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