Chris Pizzello/Chris Pizzello/Invision/AP
For fans of musicals and lovers of romance novels, the news was shocking: Netflix is suing Abigail Barlow and Emily Bear, the duo behind the Grammy-winning film. Unofficial Bridgerton Musicalfor “flagrant violation of intellectual property rights”.
Bridgerton’s unofficial musicl, inspired by the Netflix show and Julia Quinn’s book series, started on TikTok in early 2021 and was released as an album in September 2021, featuring 15 songs performed by Barlow and Bear. The duo won the Grammy Awards 2022 for Best Musical Theater Album.
Last week’s news has left many fans wondering about the lawsuit, the musical’s future, and what it all means.
What does the lawsuit allege?
On July 29, Netflix filed a trial in the United States District Court in Washington, D.C.alleging that Barlow and Bear “took the valuable intellectual property of the Netflix original series Bridgerton build an international brand for themselves.”
“Netflix has the exclusive right to create Bridgerton songs, musicals or any derivative works based on Bridgerton“, says the lawsuit.
Netflix alleges that Barlow and Bear claimed “carte blanche permission to profit from Netflix’s protected intellectual property” and pushed the boundaries of fan fiction “well past its breaking point”.
The lawsuit cites specific instances where Barlow and Bear allegedly “generously and almost identically copied from Bridgerton through a number of original expressive elements”, including the removal of lines of dialogue from the series, the “appropriation” of characters, and the “copying” of key plot points.
According to the lawsuit, Netflix never authorized Bridgerton’s Unofficial Musical or given Barlow and Bear permission to create a work based on the franchise.
In the past, Barlow and Bear have said they received permission from Netflix. In a September 2021 interviewBarlow said Netflix was “very, very supportive” of their project.
Barlow and Bear did not respond to NPR’s interview request and did not comment publicly on the lawsuit.
Why is Netflix suing Barlow and Bear now?
The Unofficial Bridgerton Musical album came out almost a year ago. But the complaint was filed last week.
“The momentum shifted to where the value that was accumulating for the Bridgerton brand and Netflix of [the musical] is now compensated by the money that Netflix thinks it is losing,” Derek Miller, an English professor at Harvard University, told NPR.
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The catalyst for the trial was Bridgerton’s Unofficial Live Music Album, a for-profit show at the Kennedy Center on July 26.
When the concept album was announced, according to the lawsuit, Netflix decided not to stand in the way of “what Barlow & Bear stood for as two Bridgerton fans’ expression of their appreciation for the series.”
The album got Netflix excited without infringing on its business model, says Miller, who focuses on the intersections of art and law. Now that Barlow and Bear have started hosting for-profit performances, Netflix sees the musical as a threat to their own live event, “The Queen’s Ball: A Bridgerton Experience.”
Netflix representatives reportedly told Barlow and Bear that they “would not allow or want them to engage in any live performances or other derivative works that may compete with Netflix’s own planned live events. “.
According to court documents, Netflix “offered Barlow & Bear a license that would allow them to continue with their planned live performances at the Kennedy Center and the Royal Albert Hall, continue to distribute their album, and play their Bridgerton-live-inspired songs as part of larger programs in the future,” which the lawsuit says Barlow and Bear denied.
How could the trial unfold?
It’s still too early to predict the final outcome of the trial, Harvard Law School professor Rebecca Tushnet told NPR. There is a range of possible outcomes, and most cases like this tend to settle out of court.
Miller, the literature professor, says that since there’s plenty of evidence that Barlow and Bear infringed on Netflix’s intellectual property, he doesn’t think they’ll want to go to court. If the case goes to court, the decision will come down to whether the Bridgerton’s unofficial musical is deemed fair use.
Fanfiction can be protected under fair use as long as the work is “transformative” and adds new meaning to the original work. Fanfiction must also be non-commercial in nature and must not generate profit for the creator of the work.
In a case of fair use, says Tushnet, several factors are considered, including the purpose of the use, the nature of the work that was copied, the amount of original material taken, and the impact on the market.
“There are fair trade uses, but it’s definitely more risky,” says Tushnet, adding that they require more justification. “Many justifications can be found, criticisms, comments, even imaginative reworkings that tell you something about the source text. The most critical [of the source text] commercial reworking is, the more likely it is to be fair use.”
What does ‘The Unofficial Bridgerton Musical’ have in store for us?
Depending on the outcome of the case, a Bridgerton the musical could yet come to Broadway.
If the case settles somewhat out of court, Netflix may choose to use Barlow and Bear’s work as a foray into acting. But, Netflix also may not want to work with Barlow and Bear in any capacity once the lawsuit is settled, regardless of the outcome.
“There are many points in the claims that suggest there was a serious breach of trust by representatives of Barlow and Bear with Netflix,” Miller said.
John Locher/John Locher/Invision/AP
Barlow and Bear could potentially rewrite the show to remove intellectual property belonging to Bridgertonbut they should drastically alter the plot of the show and lose the Bridgerton brand that attracts people.
Creative projects have second acts all the time, says Tushnet, citing 2002 Mattel, Inc. vs. MCA Recordswhen the toymaker lost a lawsuit against the band Aqua for the song “Barbie Girl” and then ended up licensing the song for its own marketing.
What might this mean for fanfiction in general?
“Fan culture is extremely good for brands,” says Miller. Companies are going to have to strike a balance between protecting their economic and commercial interests and not “fighting with fans doing work that, to some degree, extends brand value.”
Part of the motivation behind the lawsuit may be to shut down other potential fan projects based on Netflix’s vast catalog.
The lawsuit alleges that Bridgerton’s Unofficial Musical “may also encourage other third parties to develop derivative works based on Bridgerton without permission from Netflix.”
“The average work of fan fiction doesn’t take much from existing work,” says Tushnet. Even if a copyright owner decides that a work of fanfiction infringes their intellectual property, they may decide that it’s just not worth suing.