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Netflix filed a lawsuit this weekend towards two TikTok stars of their early twenties, Abigail Barlow and Emily Bear, alleging that their Grammy-winning “Unofficial Bridgerton Musical” mission infringed on the copyright of Netflix‘s authentic sequence “Bridgerton.”
Early final 12 months, the songwriting duo began penning spectacular ballads concerning the fashionable Netflix present for enjoyable, posting them on TikTok. Their videos have been so fashionable that Barlow and Bear launched a complete musical soundtrack based mostly on “Bridgerton,” then beat out legends like Andrew Lloyd Webber to win the 2022 Grammy Award for Greatest Musical Album. The second was a milestone, demonstrating the influence of social media on popular culture.
If this mission has been gaining steam for over a 12 months, why would Netflix sue now? On July 26, the duo staged a sold-out performance on the Kennedy Middle in New York Metropolis, that includes The Nationwide Symphony Orchestra and a group of Broadway visitor stars. With tickets ranging between $29 and $149, plus VIP upgrades, Netflix put its foot down after “repeated objections,” demanding an finish to those for-profit performances.
Primarily based on novels by Julia Quinn, “Bridgerton” has shattered viewership records for Netflix originals. In a time of economic pressure and subscriber loss for the streamer, the Regency-era romance is vital IP.
Barlow and Bear’s legal professionals first approached Netflix in March 2021, asking for the streaming big’s blessing of a recorded album and a charity present. Netflix, in response to its personal characterization in its lawsuit, mentioned that it wouldn’t authorize the exercise, but additionally wouldn’t “[stand] in the way in which.”
For Netflix, the Kennedy Middle efficiency was a step too far. Barlow and Bear didn’t have permission from Netflix to stage their ticketed occasion, however in response to authorized specialists, Netflix’s permission is irrelevant to the query of copyright infringement.
“It’s a really attention-grabbing honest use case,” mentioned Casey Fiesler, an assistant professor on the College of Colorado Boulder who research web regulation and fandom. “That is what regulation faculty exams are fabricated from.”
“Barlow & Bear’s conduct started on social media, however stretches ‘fan fiction’ effectively previous its breaking level,” Netflix’s lawsuit reads. “It’s blatant infringement of mental property rights.”
However the authorized actuality isn’t as cut-and-dry as Netflix’s grievance makes it out to be.
Traditionally, fan works have typically been deemed authorized underneath the honest use doctrine, which states that some copyrighted materials can be utilized with out specific permission.
“I’ve seen lots of people implying that as a result of [Barlow and Bear] are commercializing it, meaning it’s not honest use,” Fiesler advised TechCrunch. “Whether or not one thing is industrial or non-commerical is a part of a good use evaluation, however it’s a part of just one issue.”
Fair use analysis seems to be on the goal of a piece (is it for-profit?), the quantity of copyrighted materials it makes use of, the character of the work (how transformative is it?), and the way the work may economically influence the unique.
Fiesler advised TechCrunch that there have been many examples of economic fan works that have been decided in court docket to be honest use, although there isn’t as a lot case regulation and precedent, since these disputes are sometimes settled earlier than they attain a decide.
In 2015, a federal decide in New York dominated in favor of “3C,” an off-Broadway play that supplied a darkish, extra grownup spin on the 70s tv present “Three’s Firm.” The “Three’s Firm” copyright holder alleged that the manufacturing certified as infringement, however the decide wrote in a prolonged ruling that the play was a “highly transformative parody,” so it didn’t pose a market risk to the unique present.
However some industrial fan works didn’t fare as effectively in court docket. “Prelude to Axanar,” a brief movie based mostly on “Star Trek,” premiered at San Diego Comedian Con in 2014 after elevating over $100,000 from followers on Kickstarter. The brief movie was so profitable that its creators determined to make a feature-length movie known as “Axanar,” which raised over a million dollars from followers. The filmmakers assumed that they have been protected by honest use, however when Paramount sued them, the decide sided with the copyright holders.
“Copyright regulation solely was related to skilled artists […] and legal professionals,” mentioned Fiesler. “Earlier than the web, why would you need to know something about copyright regulation?”
However as fan communities emerged on-line, even teenage fan fiction writers have needed to navigate the tough territory of sharing spinoff artwork. It’s not unusual to see copy-pasted diatribes on fan fiction web sites wherein the writer states that they “do not own” characters like Dean Winchester, however, from a authorized standpoint, these disclaimers don’t accomplish a lot. Although it’s not inherently unlawful to monetize fan works, the favored fan fiction web site Archive of Our Personal (AO3) prohibits its writers from soliciting financial ideas from readers to keep away from murky authorized conditions.
“There’s a really robust non-commercialization norm in lots of fan communities,” mentioned Rebecca Tushnet, a Harvard Regulation College professor who’s on the authorized group on the Group for Transformative Works (OTW), which runs AO3 (Fiesler additionally works with OTW, however neither she nor Tushnet communicate on behalf of the group).
With some notable exceptions (taking a look at you, Anne Rice), fan works have usually slid underneath the radar, as long as they’re not monetized. However as soon as a fan creator begins getting cash, the copyright holder may begin paying nearer consideration.
“When a piece is industrial, it has to do much more by way of including one thing new — criticizing, parodying, or shedding new gentle on the unique,” mentioned Tushnet. “Your common work of fan fiction is just not industrial.”
“Bridgerton” isn’t the primary media property to encourage a collaborative musical on TikTok. Stemming from a serendipitous viral moment, “Ratatouille: The TikTok Musical” premiered as a one-night charity livestream for the Actors Fund in January 2021. For that manufacturing, the query of honest use wasn’t related, for the reason that copyright holder Disney didn’t sue.
“Though we shouldn’t have growth plans for the title, we love when our followers interact with Disney tales,” Disney mentioned in a press release to the Los Angeles Occasions. “We applaud and thank all the on-line theater makers for serving to to profit the Actors Fund on this unprecedented time of want.”
In 2009, college students on the College of Michigan wrote and carried out “A Very Potter Musical,” a parody of the “Harry Potter” books (which starred a then-unknown Darren Criss, who’s now an Emmy and Golden Globe winner). When the younger theater troupe uploaded the performance to YouTube underneath the title Workforce Starkid, it went viral sufficient for Warner Brothers to note. Although the “Harry Potter” copyright holder by no means sued Starkid, its members have acknowledged that they reached an agreement with Warner Brothers to not cost admission for any “Harry Potter”-related performances.
Equally, as quickly as Barlow and Bear started to revenue off of their “Bridgerton”-inspired songs, their work turned a goal for Netflix. Is popping a TV present right into a musical transformative sufficient to be thought of honest use? That’s as much as a decide to determine, however Tushnet doesn’t assume it’s a very robust argument.
“Whether or not it’s parodic or not, you need to do one thing noticeably completely different from [the original], different than simply translating it into a brand new medium,” Tushnet advised TechCrunch.
What’s subsequent for the TikTok musical
Barlow and Bear’s authorized group has not but responded to Netflix’s grievance. They might settle with Netflix, or they might presumably take the case to court docket (Barlow and Bear didn’t reply to TechCrunch’s request for remark).
“The one argument I can think about them making is a good use argument.” Fiesler mentioned.
Netflix’s grievance doesn’t argue towards a good use case, since Barlow and Bear haven’t made that declare but. However Netflix does nod to a possible financial loss from the unauthorized musical, which might turn out to be related in a case towards honest use.
To capitalize on the recognition of the sequence, Netflix produced an occasion in March 2022 known as the “The Queen’s Ball: A Bridgerton Experience” in six cities, internet hosting a Regency-era ball. In line with Netflix, the unofficial musical “undermines” the corporate’s potential to host in-person, immersive “Bridgerton” occasions.
TikTok is making method for brand spanking new fandom communities which can be rising unbiased of decades-old fan networks like AO3, Tumblr and even LiveJournal (RIP). The draw back is, although, that followers lose the institutional information of long-time fandom denizens who’ve fought to guard non-commercial fan works for thus lengthy.
“I personally type of hope that [the case] settles,” mentioned Fiesler. “If this went to court docket and Netflix received, I would fear a little bit bit about precedent-setting for future fan works.”
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