Anita Gogia is a IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.
Abigail Barlow and Emily Bear combined their talent with their love for the Netflix Original, Bridgerton, to create the 15-song “Unofficial Bridgerton Musical” album. Barlow and Bear went on to become viral sensations on social media and Grammy-winning artists (2022 Best Musical Theatre Album) for their production.
On July 29th 2022, Netflix sued the TikTok stars Barlow and Bear in the U.S. District Court in D.C. alleging infringement of federally registered copyrights and trademarks in violation of 17 U.S.C. § 501 and 15 U.S.C. § 1114. Netflix alleges Barlow and Bear have benefited from their album’s false association with the Bridgerton brand. Netflix also holds the position that Barlow and Bear “copied liberally and nearly identically” the elements of expression, dialogue, characters, and key plot points from Bridgerton.
Allegedly, in March 2021, when Barlow and Bear’s team asked Netflix for permission to record their album, Netflix denied authorizing the activity but said they wouldn’t “stand in the way”. Per their submissions, Netflix told Barlow and Bear that they would not authorize any live performances of the songs. Despite Netflix’s statements, in July 2022, Barlow and Bear held a sold-out show in New York with ticket prices ranging from $29-$149+. When hearing of the future live shows Barlow and Bear had planned, Netflix offered them a licensing agreement that would permit their shows, continued distribution of the album, and any further performances of the Bridgerton-inspired songs; but Barlow and Bear refused the licensing option.
Perhaps more important for Netflix is the promotion and success of their event “Queen’s Ball,” a Bridgerton experience held across multiple cities. Barlow and Bear’s live show would likely compete with the profits of the “Queen’s Ball.”
Barlow and Bear reportedly hold the position that their work is not liable for IP infringement because it is inherently “fan fiction.” Netflix has responded that “Barlow & Bear’s conduct began on social media, but stretches ‘fan fiction’ well past its breaking point.” Jane Quinn, author of the books of which Bridgerton is based has described a difference between flattery through composing songs on TikTok and performing an album for commercial gain.
Barlow and Bear may use the “fan fiction” defence to claim their work is not an infringement based on fair use by proving the elements of fair use: the art is transformative and adds new meaning to the original show. Additionally, fan fiction must be non-commercial and cannot result in profits for the creator. Factors considered for establishing fair use are the purpose of the work created, nature of the work copied, measure of the material copied, and the impact on the market.
Ironically enough, if this case was filed in Bridgerton home territory, the UK, Barlow and Bear may attempt to use the defence of parody and pastiche. Netflix would likely win their case had it went to court based on a very similar case earlier this year. In the case of Shazam v. Only Fools The Dining Experience, the court ruled in favour of the creators of the original show because the nature of the “dining experience” was not so removed from the original show “as to make it obvious that it was not associated” with it. Similar to Netflix, Shazam had their own musical for which sales could have been diverted by their audience choosing the dining experience instead. The court also found that that the defences of parody and/or pastiche did not apply.
TikTok has proven since the pandemic its unique power to make music, books, and tv/film over-night sensations. The Netflix v. Barlow and Bear case illustrates that companies may have to navigate between having its work become a positive viral sensation while still protecting their business interests and the content that its team has worked so hard to create.