Netflix filed a lawsuit this weekend against two TikTok stars in their early twenties, Abigail Barlow and Emily Bear, alleging that their Grammy-winning “Unofficial Bridgerton Musical” project infringed on the copyright of Netflix‘s original series “Bridgerton.”
Early last year, the songwriting duo started penning impressive ballads about the popular Netflix show for fun, posting them on TikTok. Their videos were so popular that Barlow and Bear released an entire musical soundtrack based on “Bridgerton,” then beat out legends like Andrew Lloyd Webber to win the 2022 Grammy Award for Best Musical Album. The moment was a milestone, demonstrating the impact of social media on pop culture.
If this project has been gaining steam for over a year, why would Netflix sue now? On July 26, the duo staged a sold-out performance at the Kennedy Center in New York City, featuring The National Symphony Orchestra and a collection of Broadway guest stars. With tickets ranging between $29 and $149, plus VIP upgrades, Netflix put its foot down after “repeated objections,” demanding an end to these for-profit performances.
Based on novels by Julia Quinn, “Bridgerton” has shattered viewership records for Netflix originals. In a time of financial strain and subscriber loss for the streamer, the Regency-era romance is important IP.
Barlow and Bear’s lawyers first approached Netflix in March 2021, asking for the streaming giant’s blessing of a recorded album and a charity show. Netflix, according to its own characterization in its lawsuit, said that it wouldn’t authorize the activity, but also wouldn’t “[stand] in the way.”
For Netflix, the Kennedy Center performance was a step too far. Barlow and Bear did not have permission from Netflix to stage their ticketed event, but according to legal experts, Netflix’s permission is irrelevant to the question of copyright infringement.
“It’s a very interesting fair use case,” said Casey Fiesler, an assistant professor at the University of Colorado Boulder who studies internet law and fandom. “This is what law school exams are made of.”
Is the ‘Bridgerton Musical’ legal? It’s complicated.
“Barlow & Bear’s conduct began on social media, but stretches ‘fan fiction’ well past its breaking point,” Netflix’s lawsuit reads. “It is blatant infringement of intellectual property rights.”
But the legal reality isn’t as cut-and-dry as Netflix’s complaint makes it out to be.
Historically, fan works have sometimes been deemed legal under the fair use doctrine, which states that some copyrighted material can be used without explicit permission.
“I’ve seen a lot of people implying that because [Barlow and Bear] are commercializing it, that means it’s not fair use,” Fiesler told TechCrunch. “Whether something is commercial or non-commerical is part of a fair use analysis, but it’s part of only one factor.”
Fair use analysis looks at the purpose of a work (is it for-profit?), the amount of copyrighted material it uses, the nature of the work (how transformative is it?), and how the work might economically impact the original.
Fiesler told TechCrunch that there have been many examples of commercial fan works that were determined in court to be fair use, though there isn’t as much case law and precedent, since these disputes are often settled before they reach a judge.
In 2015, a federal judge in New York ruled in favor of “3C,” an off-Broadway play that offered a dark, more adult spin on the 70s television show “Three’s Company.” The “Three’s Company” copyright holder alleged that the production qualified as infringement, but the judge wrote in a lengthy ruling that the play was a “highly transformative parody,” so it didn’t pose a market threat to the original show.
But some commercial fan works didn’t fare as well in court. “Prelude to Axanar,” a short film based on “Star Trek,” premiered at San Diego Comic Con in 2014 after raising over $100,000 from fans on Kickstarter. The short film was so successful that its creators decided to make a feature-length film called “Axanar,” which raised over a million dollars from fans. The filmmakers assumed that they were protected by fair use, but when Paramount sued them, the judge sided with the copyright holders.
“Copyright law only used to be relevant to professional artists […] and lawyers,” said Fiesler. “Before the internet, why would you have to know anything about copyright law?”
But as fan communities emerged online, even teenage fan fiction writers have had to navigate the tricky territory of sharing derivative art. It’s not uncommon to see copy-pasted diatribes on fan fiction websites in which the author states that they “do not own” characters like Dean Winchester, but, from a legal standpoint, these disclaimers don’t accomplish much. Though it’s not inherently illegal to monetize fan works, the popular fan fiction website Archive of Our Own (AO3) prohibits its writers from soliciting monetary tips from readers to avoid murky legal situations.
“There’s a very strong non-commercialization norm in many fan communities,” said Rebecca Tushnet, a Harvard Law School professor who is on the legal team at the Organization for Transformative Works (OTW), which runs AO3 (Fiesler also works with OTW, but neither she nor Tushnet speak on behalf of the group).
With some notable exceptions (looking at you, Anne Rice), fan works have generally slid under the radar, so long as they’re not monetized. But once a fan creator starts making money, the copyright holder might start paying closer attention.
“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,” said Tushnet. “Your average work of fan fiction is not commercial.”
“Bridgerton” isn’t the first media property to inspire a collaborative musical on TikTok. Stemming from a serendipitous viral moment, “Ratatouille: The TikTok Musical” premiered as a one-night charity livestream for the Actors Fund in January 2021. For that production, the question of fair use wasn’t relevant, since the copyright holder Disney did not sue.
“Although we do not have development plans for the title, we love when our fans engage with Disney stories,” Disney said in a statement to the Los Angeles Times. “We applaud and thank all of the online theater makers for helping to benefit the Actors Fund in this unprecedented time of need.”
In 2009, students at the University of Michigan wrote and performed “A Very Potter Musical,” a parody of the “Harry Potter” books (which starred a then-unknown Darren Criss, who is now an Emmy and Golden Globe winner). When the young theater troupe uploaded the performance to YouTube under the name Team Starkid, it went viral enough for Warner Brothers to notice. Though the “Harry Potter” copyright holder never sued Starkid, its members have stated that they reached an agreement with Warner Brothers to not charge admission for any “Harry Potter”-related performances.
Similarly, as soon as Barlow and Bear began to profit off of their “Bridgerton”-inspired songs, their work became a target for Netflix. Is turning a TV show into a musical transformative enough to be considered fair use? That’s up to a judge to decide, but Tushnet doesn’t think it’s a particularly strong argument.
“Whether it’s parodic or not, you want to do something noticeably different from [the original], other than just translating it into a new medium,” Tushnet told TechCrunch.
What’s next for the TikTok musical
Barlow and Bear’s legal team has not yet responded to Netflix’s complaint. They could settle with Netflix, or they could possibly take the case to court (Barlow and Bear did not respond to TechCrunch’s request for comment).
“The only argument I can imagine them making is a fair use argument.” Fiesler said.
Netflix’s complaint doesn’t argue against a fair use case, since Barlow and Bear haven’t made that claim yet. But Netflix does nod to a potential economic loss from the unauthorized musical, which could become relevant in a case against fair use.
To capitalize on the popularity of the series, Netflix produced an event in March 2022 called the “The Queen’s Ball: A Bridgerton Experience” in six cities, hosting a Regency-era ball. According to Netflix, the unofficial musical “undermines” the company’s ability to host in-person, immersive “Bridgerton” events.
TikTok is making way for new fandom communities that are growing independent of decades-old fan networks like AO3, Tumblr or even LiveJournal (RIP). The downside is, though, that fans lose the institutional knowledge of long-time fandom denizens who have fought to protect non-commercial fan works for so long.
“I personally kind of hope that [the case] settles,” said Fiesler. “If this went to court and Netflix won, I might worry a little bit about precedent-setting for future fan works.”
This article was originally published on TechCrunch.com. Read More on their website.