Netflix Series Bridgerton Lawsuit: Exploring Intellectual Property in the Age of TikTok

Written by ​Gabrielle Cohen
Gaby Cohen is a second-year student at the University of Pennsylvania’s College of Arts and Sciences studying philosophy, politics and economics.

During the depths of the first nationwide COVID-19 quarantine in 2020, TikTok skyrocketed in popularity as housebound Americans of all ages found solace creating through social media. Beginning early 2021, TikTok users and artists Abigail Barlow and Emily Bear started posting short musical clips they had written based on the Netflix series, Bridgerton. Abigail Barlow is a singer-songwriter, and her partner, Emily Bear, is a piano prodigy and composer. The pair synthesized plot elements, character arcs and direct quotes into lyrics and melodies for a hypothetical musical based on the series. Shonda Rhimes produced Bridgerton as a television series for Netflix based on Julia Quinn’s romance novels written in 2020 [1]. The series explores England’s Regency Era marriage market and follows characters' journeys through the social season, with select modern affectations, such as a racially diverse cast and classical versions of 21st century songs [2]. Barlow and Bear’s posts of their creative process on TikTok allowed them to receive live feedback from their followers and the Bridgerton fan base. This inspired them to workshop, write and revise further.

Soon, Barlow and Bear’s videos accumulated upwards of 300 million views, and the duo gained a large and vocal following––Bridgerton fans wanted more. In the span of months, they wrote and recorded fifteen songs for an album which they released in September 2021: The Unofficial Bridgerton Musical [3]. The pair claimed their lawyers received the go-ahead from Netflix to produce the album [4]. In January 2021, Netflix seemed to confirm their support by posting on Twitter: “Absolutely blown away by the Bridgerton musical playing out on TikTok” [5].

With the release of the album, the duo and their musical concept gained significantly more attention. Author Julia Quinn and much of the TV series’ cast praised their work [6]. Smithsonian Magazine writer Meilan Solly notes how the immense success of their passion project on TikTok “speaks to the changing landscape of popular culture” as well as the massive exposure that social media can give to entrepreneurs [7]. After a few months, Barlow and Bear made the Forbes 2022 edition of 30 under 30, a significant accomplishment for young entrepreneurs [8]. In April 2022, The Unofficial Bridgerton Musical won a Grammy Award for Best Musical Theatre Album [9]. Their success marked the first musical originating on TikTok to receive a Grammy.

On July 26, 2022, Barlow and Bear produced a for-profit live show at the Kennedy Centre in Washington DC: “The Unofficial Bridgerton Musical Album Live in Concert” [10] They charged up to $149 per ticket, and the concert included each song from the album performed live, featuring guest appearances by Broadway stars such as Kelli O-Hara and Denée Benton [11]. Just three days after the sold-out concert, Netflix filed suit against Barlow and Bear and their company, Barlow & Bear. Netflix argued there were four counts of copyright infringement and infringement of registered trademarks [12]. Barlow & Bear have previously implied that they have had Netflix’s permission in their creative endeavors, so, naturally, audiences assumed the pair was authorized to use the Bridgerton trademark for the show—this was not the case. In an interview following the release of their album, Barlow & Bear nonchalantly laughed when asked about how they were legally qualified to use the Bridgerton material: "We asked! Netflix was very, very supportive" [13]. According to Netflix, the company didn’t interfere with the album concept because of the women’s enthusiasm for the series, but once the team produced a show and charged consideration for their own commercial benefit, Netflix put their foot down. Netflix filed a 25-page lawsuit in US District Court in Washington DC, stating that “Netflix owns the exclusive right to create Bridgerton songs, musicals, or any other derivative works based on Bridgerton;” yet, Barlow & Bear have “taken valuable intellectual property from the Netflix original series Bridgerton to build an international brand for themselves” [14] Although Bear and Barlow asked Netflix permission to create the album, they never had ownership nor permission to use any of the Bridgerton intellectual property, meaning they were prohibited from putting on a staged production. 

The suit continues to describe that the live show “stretches ‘fan fiction’ well past its breaking point” in that it became “blatant infringement of intellectual property rights” [15] In addition to holding the for-profit concert, Barlow and Bear also promoted branded merchandise [16]. Netflix was unbothered by the original success of the duo’s TikTok and would have allowed live performances to benefit charity. However, since “the value that was accruing for the Bridgerton brand and Netflix from [the musical] is now outweighed by the money Netflix thinks they’re losing,” it is worth the lawsuit for Netflix’s sake. In particular, the live show became a threat to the business plans and future productions of Netflix such as “The Queen’s Ball: A Bridgerton Experience” [17] Netflix offered Barlow & Bear a license to permit their use of the Bridgerton trademark for live performances, but the two did not accept. Instead, they canceled their upcoming show which was scheduled to take place at London’s Royal Albert Hall. Barlow and Bear could also rewrite the live show around intellectual property restrictions, but that might risk losing the original elements of the Bridgerton brand that first caught the eyes of so many. They have not made any public comments about their defense claims. Neither their legal team, nor Barlow and Bear themselves, have said anything concerning the suit, formally through a statement release or informally on their social media domain [18].

Most intellectual property cases of this nature typically settle without reaching court. Interestingly, in contrast with the initial adamant support the women received for their creative work, much of the public seemed to come to Netflix’s defense in the comment sections of Barlow’s and Bear’s TikTok posts; many fans concurred on the ample evidence supporting the company’s claims [19].

Many legal scholars commented about the precedent-setting consequences this case’s decision could have on future fan-based creative works by going to court. According to University of Colorado Boulder internet law and fandom assistant professor Casey Fiesler, this is a typical case of fair use [20]. Deciphering whether or not something is fair use requires analyzing the motivation of a project, particularly if it is for-profit, how much unowned intellectual property it contains, the project’s essence and how different it is from the original work, and how the project might affect the original work financially. Fieseler has “seen a lot of people implying that because [Barlow and Bear] are commercializing [their work], that means it’s not fair use––” a stance that many have vocalized. Lewis and Clark copyright law professor Lydia Pallas Loren has noted that until they begin monetizing their copyrighted work, creators are typically protected by fair use in experimenting with someone else’s intellectual property [21]. Unlike “The Unofficial Bridgerton Musical Album Live in Concert,” “Ratatouille,” the first TikTok musical in 2020, raised money for the Actor’s Fund with Disney’s permission, which protected it from any copyright infringement accusations as a fan work. In another case, a Star Trek-inspired short film, “Prelude to Axanar,” which premiered at Comic-Con in 2014 did not fare as well [22]. The short film’s success prompted the creators to turn it into a feature-length film, “Axanar,” grossing over $1 million from fans. When Paramount sued them, the judge ruled that the “Axanar” creators were not protected by fair use. Harvard Law School professor Rebecca Tushnet emphasizes: “There’s a very strong non-commercialization norm in many fan communities” [23]. 
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Given these informed legal opinions, one could reasonably conclude that Barlow & Bear were at serious fault here. Fans were left to speculate about the case’s ongoing proceedings until September 23. On September 22, Barlow and Bear were due to respond to Netflix’s lawsuit; however, the tean failed to do so [24]. The following day, Netflix dismissed the lawsuit without public explanation in a Washington DC federal court filing: “Plaintiffs Netflix Worldwide Entertainment, LLC and Netflix Studios, LLC hereby dismiss this action with prejudice” [25]. Since the lawsuit was dismissed “with prejudice,” the matter is done for good and it cannot be refiled. Sources have confirmed that Netflix and Barlow & Bear reached a settlement [26], which the plaintiff is heard to be satisfied with [27]. Although particular terms of the settlement are not available to the public, it is likely that Netflix would need to directly authorize any future performances of “The Unofficial Bridgerton Musical” [28]. Fans patiently await to see what is next for Abigail Barlow and Emily Bear in their notable careers.

Bibliography
[1] Netflix v. Barlow and Bear, NPR (UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 2022). 
[2] Richardson, Kalia. “Netflix Sues 'Unofficial Bridgerton Musical' Duo for Infringement.” The New York Times. The New York Times, August 1, 2022. https://www.nytimes.com/2022/08/01/theater/netflix-bridgerton-musical.html. 
[3] Schwartz, Deanna. “The Netflix v. 'Unofficial Bridgerton Musical' Lawsuit, Explained.” NPR. NPR, August 4, 2022. https://www.npr.org/2022/08/04/1115212455/netflix-bridgerton-musical-lawsuit. 
[4] Ibid.
[5] Netflix. Twitter Post. January 13, 2021, 12:32 PM https://twitter.com/netflix/status/1349409098652024835?lang=en.
[6] Durkee, Alison. “'Unofficial Bridgerton Musical' Creators Cancel U.K. Show after Netflix Lawsuit.” Forbes. Forbes Magazine, August 11, 2022.https://www.forbes.com/sites/alisondurkee/2022/08/10/unofficial-bridgerton-musical-creators-cancel-uk-show-after-netflix-lawsuit/. 
[7] Magazine, Smithsonian. “What the 'Unofficial Bridgerton Musical' Lawsuit Means for Fan-Created Content.” Smithsonian.com. Smithsonian Institution, August 10, 2022. https://www.smithsonianmag.com/smart-news/what-the-unofficial-bridgerton-musical-lawsuit-means-for-fan-created-content-180980566/. 
[8] Brown, Abram. “From Bella Poarch to a 'Bridgerton' Musical, Meet Forbes' 30 Under 30 in Social Media.” Forbes. Forbes Magazine, April 21, 2022. https://www.forbes.com/sites/abrambrown/2021/12/01/bella-poarch-chase-hudson-josh-richards-tiktok-social-media-instagram-youtube/?sh=13b6384c3fcf. 
[9] Schwartz, “Netflix v. 'Unofficial Bridgerton Musical.'”
[10] Netflix v. Barlow and Bear, NPR.
[11] Smithsonian, “'Unofficial Bridgerton Musical' Lawsuit.”
[12] Richardson, “Netflix Sues for Infringement.”
[13] Staff, OnStage Blog. “The ' Unofficial Bridgerton Musical': A Chat with Barlow and Bear.” OnStage Blog. OnStage Blog, September 6, 2021. https://www.onstageblog.com/profiles/2021/9/6/the-bridgerton-musical-a-chat-with-barlow-and-bear.
[14] Netflix v. Barlow and Bear, NPR.
[15] Ibid.
[16] Richardson, “Netflix Sues for Infringement.”
[17] Ibid.
[18] “Netflix Dropped Its Case against the 'Unofficial Bridgerton Musical' Creators. What's next for Barlow and Bear?” Tubefilter, September 26, 2022. https://www.tubefilter.com/2022/09/26/unofficial-bridgerton-musical-lawsuit-settlement-netflix-shonda-rhimes-abigal-barlow-emily-bear/.
[19] “Abigail Barlow on Tiktok.” TikTok. Accessed October 15, 2022. https://www.tiktok.com/t/ZTRHLmtxo/. 
[20] Silberling, Amanda. “Netflix's Lawsuit against the 'Bridgerton Musical' Could Change Online Fandom.” TechCrunch, August 3, 2022. https://techcrunch.com/2022/08/03/unofficial-bridgerton-musical-lawsuit-netflix-barlow-bear/. 
[21] Hill, Laura Wheatman. “Why Bridgerton Fans Turned against the Bridgerton Musical.” Slate Magazine. Slate, August 9, 2022. https://slate.com/culture/2022/08/bridgerton-musical-lawsuit-netflix-tiktok-barlow-bear.html. 
[22] Silerling, “Netflix’s Lawsuit Could Change Online Fandom.”
[23] Ibid.
[24] Maddaus, Gene. “Netflix Settles Copyright Lawsuit over 'Unofficial Bridgerton Musical'.” Variety. Variety, September 24, 2022. https://variety.com/2022/music/news/netflix-bridgerton-musical-lawsuit-dropped-barlow-bear-1235382454/?sub_action=logged_in.
[25] Haring, Bruce. “'Bridgerton the Musical' Lawsuit Tossed by Netflix as UK Performances of Live Show Cancelled – Update.” Deadline. Deadline, September 24, 2022. https://deadline.com/2022/09/netflix-sues-bridgerton-the-musical-creators-for-infringement-1235081610/.
[26] Maddaus, “Netflix Settles Copyright Lawsuit.”
[27] Haring, “‘Bridgerton the Musical’ Lawsuit Tossed.”
[28] “Netflix Dropped Its Case against the 'Unofficial Bridgerton Musical' Creators. What's next for Barlow and Bear?” Tubefilter, September 26, 2022. https://www.tubefilter.com/2022/09/26/unofficial-bridgerton-musical-lawsuit-settlement-netflix-shonda-rhimes-abigal-barlow-emily-bear/. 
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