Loyola Law School Entertainment Law Review image of Bridgerton Musical

The Unofficial Bridgerton Musical: Where is the Line Drawn Between Legal Fan Fiction and Copyright Infringement?

Emma QuinnNews & Insights

By Emma Quinn

On July 26, 2022, the lights went up on the first live performance of The Unofficial Bridgerton Musical at the Kennedy Center for the Performing Arts in Washington, D.C.  An ensemble cast presented songs from the award-winning concept album, which incorporated themes, characters, and plotlines of the hit Netflix show, Bridgerton.  The night was a success for co-composers and lyricists Abigail Barlow and Emily Bear: the artists performed to a sold-out crowd, merchandise and VIP packages were purchased by devoted fans, and the concert received rave reviews.[1] This celebration ended abruptly, however, when the pair was served with a lawsuit alleging that they infringed on Netflix’s copyright and trademark rights by taking “valuable intellectual property from the Netflix original series Bridgerton to build an international brand for themselves.”[2] The parties recently settled, and Netflix dismissed the lawsuit before Barlow & Bear filed a response.[3] Nonetheless, the case raises questions regarding the expressive rights of fan-fiction creators.

Bridgerton, created by Chris Van Dusen, became a commercial and critical success upon release in 2020, garnering 625.49 million hours viewed in its first 28 days.[4] It inspired fashion and interior design trends dubbed, “regencycore,”[5] an immersive show titled “The Queen’s Ball: A Bridgerton Experience,”[6] and Barlow & Bear’s concept album. The show follows the daughter of the powerful Bridgerton family as she makes her debut onto Regency London’s competitive marriage market and meets the highly desirable Duke of Hastings. These characters and storyline form the basis for The Unofficial Bridgerton Musical concept album.[7] [8]

In 2021, Barlow & Bear began live streaming the drafting of the album on TikTok and later released a full-length version, winning a Grammy Award for Best Musical Theater Album.[9] Initially, Netflix did not stop Barlow & Bear and others from displaying their fan tributes to Bridgerton, and even applauded them with the tweet: “absolutely blown away by the Bridgerton musical playing out on TikTok.”[10] However, Netflix’s complaint alleged that as the project gained popularity, Barlow & Bear asked Netflix if their work was authorized, and were told it was not.[11] Netflix claimed the album competed with Netflix’s own events, such as The Bridgerton Experience, and created confusion for consumers as to whether Netflix had approved of Barlow & Bear’s works.[12] Barlow & Bear allegedly refused Netflix’s offer of a license and moved forward with their performance without authorization.[13]

Netflix’s production company owns the copyright to the Bridgerton series.[14] “Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated . . . .” [15]  The copyright in a derivative work, such as The Unofficial Bridgerton Musical, “extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work and does not imply any exclusive right in the preexisting material.”[16] Netflix’s complaint raises the question of whether Barlow & Bear’s use of Bridgerton as source material for their concept album constitutes copyright infringement if the “fair use factors” —purpose, nature, amount/substantiality, and effect on the market—weigh against granting it protection.[17]

First, Netflix alleges that the purpose of The Unofficial Bridgerton Musical is commercial use.  Commercial use weighs against fair use; “courts are more likely to find that nonprofit educational and noncommercial uses are fair,” as opposed to uses which may generate profit.[18] Barlow & Bear allegedly profited from the commercialization of the album, live performances, and merchandise “including clothing, songbooks, and vinyl albums.”[19]  Second, the nature of the copyrighted work is the “degree to which the work that was used relates to copyright’s purpose of encouraging creative expression.”[20] Here, Bridgerton is a fictional, historical-romance book series adapted for television. The strength of copyright is greater for creative works like Bridgerton, so this would likely weigh against any fair use defense Barlow & Bear could have asserted.[21] 

Regarding the amount and substantiality of Bridgerton-derived content in The Unofficial Bridgerton Musical, Netflix claimed that “Barlow & Bear copied liberally and nearly identically from Bridgerton across a number of original elements of expression. Lyrics are lifted verbatim from dialogue and characters, and plot, pace, sequence of events, mood, setting, and themes are replicated faithfully.”[22]  Further, Netflix alleged that before each song was performed live, “Barlow & Bear discussed the song’s origins, regularly invoking the Bridgerton plot themes and storylines on which each song was based.”[23]  The more source material one uses, the less likely the work is to be considered within fair use.[24]  

Regarding The Unofficial Bridgerton Musical’s effect on the market, the complaint alleged that while promoting the live show on TikTok, the duo remarked, “[c]ome show up at the Kennedy Center. It’s going to be a Ball!” which Netflix alleged draws on the same market as the Bridgerton Experience does.[25]  Additionally, the performance conflicted with the Bridgerton Experience event in Washington D.C, “attract[ing] Bridgerton fans who would have otherwise attended” the event sponsored by Netflix.[26]  Netflix asserted that Barlow & Bear’s actions undermined Netflix’s ability to offer authorized derivative works of Bridgerton, including “merchandise, soundtracks, and other consumer products.”[27]    It is unclear what is in store for the future of TheUnofficial Bridgerton Musical,” including whether Netflix might work out an arrangement with Barlow & Bear to bring the musical to life on the Broadway stage.[28]  As for future projects made by fan-fiction creators, Derek Miller, an English professor at Harvard University, opined that, “[f]an culture is extremely good for brands” and that corporations would have to both protect their business interests and not “pick[] fights with fans making work that to some extent extends the value of the brand.”[29]  So, if you’re on Wattpad writing an alternate ending for Game of Thrones, or a sequel to Friends, be mindful of “Balancing the Scales” as Barlow & Bear would say.

[1] National Symphony Orchestra Program, Barlow and Bear’s The Unofficial Bridgerton Musical Album Live in Concert (Jul. 26, 2022), https://www.kennedy-center.org/nso/home/2021-2022/barlow-and-bear/.

[2] Complaint at 1, Netflix Worldwide Ent., LLC v. Barlow, No. 1:22-cv-02247 (D.C. July 29, 2022), ECF No. 1, https://s3.documentcloud.org/documents/22125257/netflix-v-barlow-and-bear.pdf.

[3] Gene Maddaus, Netflix Settles Copyright Lawsuit Over ‘Unofficial Bridgerton Musical,Variety (Sept. 23, 2022), https://variety.com/2022/music/news/netflix-bridgerton-musical-lawsuit-dropped-barlow-bear-1235382454/.

[4] Jennifer Maas, ‘Bridgerton’ Season 2 Overtakes Season 1 in Netflix’s All-Time TV Rankings, Variety (April 19, 2022), https://variety.com/2022/tv/news/bridgerton-season-2-beats-season-1-netflix-viewership-ratings-1235235479/.

[5] Layla Ilchi, What Is Regencycore?  A Look at the Fashion Trend Taking Over This Spring, Women’s Wear Daily (April 29, 2022), https://wwd.com/fashion-news/fashion-features/regencycore-fashion-trend-spring-2022-details-breakdown-bridgerton-the-gilded-age-1235169193/.

[6] The Bridgerton Experience Promotional Materials, https://bridgertonexperience.com.

[7] Joe Vitagliano, Barlow & Bear on How They Brought ‘The Unofficial Bridgerton Musical’ to Life with the Help of TikTok, American Songwriter (2021), https://americansongwriter.com/barlow-bear-on-how-they-brought-the-unofficial-bridgerton-musical-to-life-with-the-help-of-tiktok/.

[8] A concept album is a collection of songs written by a musician or group that is based around a central theme.  See Andrew Wickins, What Is A Concept Album? DPL Has 195 For You To Listen To, Denver Public Library (Jan. 31, 2020), https://www.denverlibrary.org/blog/music/dodie/what-concept-album-dpl-has-195-you-listen.

[9] Deanna Schwartz, The Netflix v. ‘Unofficial Bridgerton Musical’ lawsuit, explained, NPR (Aug. 4, 2022), https://www.npr.org/2022/08/04/1115212455/netflix-bridgerton-musical-lawsuit.

[10] @netflix, Twitter (Jan. 13, 2021), https://twitter.com/netflix/status/1349409098652024835?lang=en.

[11] Complaint, supra note 2, at 14-15.

[12] Id. at 18.

[13] Id. at 16-17.

[14] Id. at 5.

[15] 17 U.S.C. § 102 (2012).

[16] 17 U.S.C. § 103 (2012).

[17] 17 U.S.C. § 107 (2011).

[18] United States Copyright Office Fair Use Index (August 2022), https://www.copyright.gov/fair-use/.

[19] Complaint, supra note 2, at 5, 17-18.

[20] United States Copyright Office Fair Use Index (August 2022), https://www.copyright.gov/fair-use/.

[21] Id.

[22] Complaint, supra note 2, at 10-11.

[23] Id. at 17.

[24] United States Copyright Office Fair Use Index (August 2022), https://www.copyright.gov/fair-use/.

[25] Complaint, supra note 2, at 16-17.

[26] Id. at 18.

[27] Id. at 19.

[28] Schwartz, supra note 9.

[29] Id.