The Unofficial Bridgerton Musical: How a Lockdown Hobby Turned into an Accusation of Copyright Infringement
As Covid-19 ravaged the world, a new internet platform, TikTok, was gaining more and more popularity. Users on the platform began making different forms of fanfiction, such as reenactments of scenes in books and cuts from movies that users spoke over.[1] TikTok has become a space where fans can create a wide range of creative videos of their favorite books, movies, television shows, and so much more.
When Bridgerton, the show based on the romance novels by Julia Quinn and produced by Shondaland, was released on Netflix on December 25, 2020, it was met with immediate success.[2] Fans rushed to TikTok to make content related to the new show. Two such fans were Abigail Barlow, a pop singer-songwriter, and Emily Bear, who is trained in classical and jazz piano.[3] Barlow said “When we saw it, we both binged it immediately. And right after I finished binging it is when I wrote the first song[.]”[4] Bear commented that the show was so theatrical, it felt like something that would be on Broadway.[5] The duo ended up writing 15 songs and releasing them on TikTok, labeling the album “The Unofficial Bridgerton Musical.” The songs used lines of dialogue from the TV show in their lyrics as well as the characters, plot, pace, sequence of events, mood setting, and theme.[6] The album was a great success and ended up winning a Grammy in 2022 for Best Musical Theater Album.[7]
However, the duo did not have permission from Netflix, Shondaland, or Julia Quinn to create or perform their unofficial musical.[8] In March 2021, Barlow and Bear’s counsel asked for Netflix’s blessing to release the album and perform said album at a U.K. charity promotion.[9] Netflix responded in June that it was “not approving or authorizing” the album’s release or any charity performances, but in the spirit of supporting their artistic expression, it stated that it was “not standing in the way.”[10] Nevertheless, Netflix never granted ongoing authorization or license to the copyrighted material.[11] In August, Netflix created a clear boundary, stating that they did not authorize any live performances of the musical or other derivative works that might compete with Netflix’s own planned live events.[12]
Barlow and Bear likely violated this boundary when they advertised, sold tickets for, and profited off a performance of “The Unofficial Bridgerton Musical” at the Kennedy Center.[13] The performance occurred on July 26, 2022 and seats were sold for $29 to $149, there was also an option to purchase a “VIP package.”[14] In response to the performance, Netflix filed a lawsuit on July 29 in U.S. District Court for the District of Columbia, claiming copyright and trademark infringement.[15]
To possibly avoid this lawsuit, Barlow and Bear had two options. First, they could have not sold tickets to an event. By performing and profiting off of their musical, Barlow and Bear directly violated the parameters established by Netflix. Barlow and Bear admitted that their musical was a derivative work of the TV show.[16] A derivative work is a work based upon one or more preexisting works, such as a… musical arrangement, dramatication, … or any other form in which a work may be recast, transformed, or adapted.[17] Netflix owns the rights to create any derivative works based on Bridgerton but they also have the right to control the production of any derivative works by others as they see fit.[18] Netflix often allows a significant amount of freedom when others make derivative works with their intellectual property.[19] However, they were very clear that they did not want Barlow and Bear selling tickets to an event because the concert directly impacted and interfered with Netflix’s long-announced Bridgerton Experience in Washington, D.C.[20] If Barlow and Bear had stuck with only creating an album, there likely would not have been a lawsuit.
The other route Barlow and Bear could have pursued is that they could have acquired licensing from Netflix to use the copyrighted material. A copyright license is an ongoing legal agreement between a copyright holder and a third-party that authorizes the third party to print, publish, perform, film or record literary, artistic or musical material that the copyright holder owns.[21] In the complaint, Netflix said that they offered to negotiate a license with Barlow and Bear but they refused. It is likely that that the terms of the licensing agreement that Netflix proposed would have been very expensive for Barlow and Bear. However, that does not mean that they could continue profiting off of Netflix’s intellectual property without it.
In the end, Netflix dropped the suit. It is assumed that the parties came to an agreement and settled out of court.[22]
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