NETFLIX, MUSICAL THEATRE, AND INTELLECTUAL PROPERTY.

Abigail Barlow and Emily Bear in the cover of The Unofficial Bridgerton Musical album (Barlow and Bear).

Only three days after premiering 'The Unofficial Bridgerton Musical Album Live in Concert' at Washington D.C.'s prestigious Kennedy Center to a sold-out audience, songwriters Abigail Barlow and Emily Bear were hit with a copyright infringement lawsuit by none other than Netflix. According to the tech giant, what started as fun, fan-generated content on TikTok derived from the Bridgerton series has now stretched the limits of fan fiction and parody ‘well past its breaking point.’

But, wait a minute. Back in January 2021 when Barlow and Bear had recently turned to TikTok and their “what if Bridgerton was a musical?” concept started to gain traction, it too, caught the eye of Netflix, with the official account reposting their clips and celebrating the songwriter duo’s creativity. Even Julia Quinn, the author of the original books on which the series is based, and to which adaptations Netflix owns the rights, was stunned by the musical. That was back when everyone was happy. But what happened after? Did it grow too popular on TikTok, to Netflix’s displeasure? Not at first, but then came trouble.

It’s important to mention that “The Unofficial Bridgerton Musical” is not the first musical originated and published on TikTok. In 2020, an online fan base of the Disney film Ratatouille gathered on the social media platform and began creating, sharing, and developing 15-second Ratatouille tribute songs, which snowballed into becoming Ratatouille the TikTok Musical. Eventually, it was developed into an online performance and, with Disney’s permission and big Broadway names tied to the project, it streamed twice in January 2021, raising over US$2 million for the Actors Fund. So why isn’t Disney suing the creators of Ratatouille the TikTok Musical? The creators asked for permission and didn't see a penny from it. It was, simply, fan-generated content performed online for a good cause. Similarly, Netflix and Bridgerton creators obviously didn’t have an issue at first with fans promoting the show and creating music based on it. However, things quickly took a turn the minute Abigail Barlow and Emily Bear began being associated with the Bridgerton brand, one that did not belong to them, or have permission to use.

In a span of six weeks, and despite Netflix’s warnings, the duo wrote, recorded, and released a 15-song album called “The Unofficial Bridgerton Musical”, and for the first time, songs from a musical without a stage performance soared to No.1 on iTunes pop charts, earning them a Grammy win for “Best Musical Theatre Album”, and making Abigail Barlow and Emily Bear, 23, and 20 respectively, the youngest nominees and winners of the category. The songwriters took advantage of the momentum provided by their historic Grammy win and announced two live concerts: one in Washington D.C’s Kennedy Center on July 26th, and another in London’s Royal Albert Hall, still scheduled to occur on September 20th. The moment Barlow & Bear started using the Bridgerton brand, characters, and dialogue for their own financial gain, that was the moment that broke Netflix’s and Bridgerton’s back.

In the Friday filing (as posted at Deadline, who broke the news), Netflix stated, “On July 26, 2022, over Netflix’s repeated objections, Barlow & Bear staged a massive, for-profit stage show—entitled ‘The Unofficial Bridgerton Musical Album Live in Concert'—to a sold-out audience at the Kennedy Center, with tickets ranging up to $149 each and VIP packages. The live show featured over a dozen songs that copied verbatim dialogue, character traits and expression, and other elements from Bridgerton the series ... Barlow & Bear misrepresented to the audience that they were using Netflix’s BRIDGERTON trademark ‘with Permission,’ while Netflix vigorously objected.” This is when the footnote of the posters advertising the Live Concerts becomes problematic.

The streamer also claims “Defendants Abigail Barlow and Emily Bear and their companies (‘Barlow & Bear’) have taken valuable intellectual property from the Netflix original series Bridgerton to build an international brand for themselves.”

Additional to the two concerts announced, the duo has plans of touring the album, as well as sell Bridgerton-theme merchandise on their tour stops and online, which becomes a direct competition with Netflix’s own immersive “The Queen’s Ball: A Bridgerton Experience”, a promotional event happening in six major cities around the United States, including Washington D.C. on the date of the Kennedy Center performance. "The Queen's Ball" is an event that invites fans of the show to step into the Bridgerton world surrounded by actors, music, and Regency period settings.

Netflix seeks to restrict the Grammy winners from producing any future productions, and compensation for any profits they have already made from the musical.

Well, and if Barlow & Bear were being a potential pain from the beginning, why didn’t Netflix sue before everything got out of hand? When the album was initially released, Barlow & Bear reached out to Netflix to ask permission to perform their music at a charity concert in the UK. Netflix said it did not authorize or approve of it, but the company did not stand in the way "in the spirit of supporting" their appreciation for the show, just on the basis of good will. It would be a charity concert supporting West End actors during the pandemic, similar to the Ratatouille Musical, but completely opposite of what happened at the Kennedy Center. In the lawsuit, the streaming company also states that “At each step of the way, Barlow & Bear’s representatives repeatedly assured Netflix that they understood Netflix’s position and led Netflix to believe that Netflix would be consulted before Barlow & Bear took steps beyond streaming their album online in audio-only format." Hmm.

But Netflix is now saying that those ‘consultations’ never happened and now the duo has crossed a big infringement line when Netflix had clearly stated that no live performances of the album were to take place. Despite numerous alleged attempts from the streamer to work with the songwriters, they refused to negotiate a license to market and expand on their Bridgerton-derived work. “Barlow & Bear’s attorneys have now taken the position that they somehow do not need a license because Netflix did not file this lawsuit sooner. That is not how copyright law works. Netflix is not required to sue every infringer. Rather, it can make its rights known—which it unambiguously, and repeatedly, did here.”

Even though it's looking like it’s going to be an open-shut case for Netflix, there are always two sides to every story, and nothing is ever simple in intellectual property/entertainment lawsuits. Maybe Netflix was trying to take as much as advantage as it could from influencer marketing and free publicity, until it went too far for comfort. But also, as time went on and Netflix did touch base with the duo, I find it really hard to believe that all the industry professionals involved in the production of the Bridgerton Live Concert misunderstood Netflix's requests, or blatantly and deliberately went ahead with the concert well-knowing they did not have permission to do it. Regardless of the outcome, I'm surprised Netflix has been this accommodating and has shown an unusual amount of leeway, even after the songwriters earned a Grammy attached to the Bridgerton brand using lines from the show as lyrics without giving songwriting credits or profits to the screenwriters. I am sure that Disney would have sued someone too had the Ratatouille musical happened without their permission, but fortunately, that seems to have been executed legally and correctly. As for the songwriters, I would recommend to change lawyers, because it's sounding to me like an ill career advice to take a viral moment too far. They should've either gladly accepted the licensing deal or said "no thanks" and cancel the performances. Barlow & Bear have not yet responded to the lawsuit, and their upcoming "The Unofficial Bridgerton Musical Album Live Concert" event at the Royal Albert Hall is still scheduled to happen at the moment of writing.

I have a feeling this case will be quietly settled in court and we won't be hearing too many details, although I am very curious of learning more about the terms of the licensing deal Netflix offered that Barlow & Bear rejected. I suspect maybe Netflix wanted to take a very sizeable cut off the profits being generated from the musical works, or maybe Barlow & Bear were too greedy to take it. Regardless of what happens, you know where to come read any developments on this lawsuit.

Until next time!

Musically,

Nicole for Click Track