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.”
“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.