The lawsuit filed this past week by Netflix charging the “Unofficial Bridgerton Musical” creators and their company Barlow & Bear with trademark and copyright infringement is a stunning reversal of Netflix’s, Shonda Rhimes’, and the original book series author Julia Quinn’s prior support and encouragement.
Earlier, on Twitter, Netflix had written “Absolutely blown away by the Bridgerton musical playing out on TikTok.
Fanfiction is, by definition copyright infringement*, yet often owners of copyright and trademark IP welcome these creations, as Netflix did for over a year, even after the album won a Grammy in April 2022. Presumably these uses are seen as increasing the visibility and value of the original IP and brand.
So what changed?
Might it be that there had just been a live performance of the “Unofficial Bridgerton Musical” at the Kennedy Center in Washington, DC, with tickets for $149 or more, with additional performances planned? And that Shondaland/Netflix was touring its own live event “A Bridgerton Experience: The Queen’s Ball”?
As Netflix shared in a statement from Shonda Rhimes, “What started as a fun celebration by Barlow & Bear on social media has turned into the blatant taking of intellectual property solely for Barlow & Bear’s financial benefit.”
Book series author Quinn commented “Abigail Barlow and Emily Bear are wildly talented, and I was flattered and delighted when they began composing ‘Bridgerton’ songs and sharing with other fans on TikTok. There is a difference, however, between composing on TikTok and recording and performing for commercial gain.”
As creators and owners of trademarked and copyrighted IP, what can we learn from this messy mess?
First, it is preferable to create your own unique, distinctive, ownable and defensible trademarks and IP.
Second, you may get away with infringing names and content for a while, so long as you don’t try to make any money on it (TikTok good, $149 tickets bad)
Third, acknowledge that derivative works require permission from the IP owner; if the original owner shows up and offers you a license, you should probably take it.
Fourth, don’t get in a fight with Shonda Rhimes.
*“Fanfiction in its current form is an infringement of copyright. Fanfiction is defined by the use of characters and expression from an original creative work and the creation of derivative works, all of which is illegal under current copyright law (McCardle, 2003).”