Everything You Always Wanted To Know About Intellectual Property But Were Afraid To Ask - Part 2
by Ashley Griffin, Stage Directions
The “Unofficial Bridgerton Musical” lawsuit
In Part 1, we tackled the various ways of using or referencing a work that has not entered the public domain.
So what exactly happened with the “Bridgerton” musical? Let’s get into it.
At the start of the pandemic writing duo Abigail Barlow and Emily Bear filmed TikToks that quickly went viral, based around the idea “what if ‘Bridgerton’ was a musical?” (“Bridgerton” is a successful Netflix show based on the novels by Julia Quinn.) Their TikToks turned into an “Unofficial Bridgerton Musical” album that went on to win a Grammy Award for best musical theater album, beating Andrew Lloyd Webber’s “Cinderella” and Conor McPherson’s “Girl From the North Country.” The success of the album led Barlow and Bear to take the project further, presenting concert versions of the show with Broadway performers at prestigious venues – for profit.
After a for-profit (the for-profit is important) performance of the musical at the Kennedy Center in D.C. (crossing paths with Netflix’s live venture “The Bridgerton Experience” which was set to be presented in the D.C. area at the same time,) Netflix sued Barlow and Bear for copyright infringement.
Fans of the musical went into an uproar, feeling this was a David and Goliath situation where the creators were being bullied and that Netflix should do the “right thing” and partner with the musical. There are certainly many cases of big corporations bullying small creators into taking down work that they legally don’t have to (this is one of the most popular ways to force legal parodies to shut down.) But in this case, the situation isn’t so black and white.
According to Deadline, who first reported on this case, “Netflix originally hailed the concept when it debuted as a free online homage. But when that expanded into a profitable business, things became sticky.” In an official statement, Netflix added: “Netflix supports fan-generated content, but Barlow and Bear have taken this many steps further, seeking to create multiple revenue streams for themselves without formal permission to utilize the ‘Bridgerton’ IP (intellectual property.) We’ve tried hard to work with Barlow and Bear, and they have refused to cooperate. The creators, cast, writers, and crew (of the Netflix show) have poured their hearts and souls into ‘Bridgerton’, and we’re taking action to protect their rights.” Showrunner Shonda Rhimes and original author Julia Quinn have released similar statements in support of the lawsuit.
Barlow and Bear said that they received Netflix’s permission to proceed with the project.
It is possible to read the entire Netflix filing in regards to this case (for easy access, NPR has posted it publicly, and doing so turns up some interesting points:
“On July 26, 2022, over Netflix’s repeated objections, Barlow & Bear staged a massive, for-profit stage show…to a sold-out audience at the Kennedy Center... The live show featured over a dozen songs that copied verbatim dialogue, character traits and expressions…Barlow & Bear misrepresented to the audience that they were using Netflix’s “Bridgerton” trademark “with permission,” while Netflix vigorously objected.
“Barlow & Bear also announced they intend to stage yet another performance of their unauthorized derivative works at the Royal Albert Hall in London making this a world tour. (They) even promoted their own line of “Bridgerton”- themed merchandise.”
“After ‘Bridgerton’ was first released…Barlow & Bear (along with countless other fans…) started posting about the series to TikTok, including creating musical compositions based on characters, scenes, dialogue, and plot points from the series. When asked directly, Netflix told Barlow & Bear, time and time again, that such works were not authorized. Barlow & Bear chose to move forward with that knowledge and release an album recording…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. Barlow & Bear’s agent said that they had no interest in interfering with Netflix’s rights or in being known only as “the ‘Bridgerton’ girls.”
Many specific examples are given as to how the “Bridgerton” musical infringes copyright both in concept, dialogue appropriated and other factors. Netflix adds that “Barlow & Bear repeatedly admitted that they intentionally based every single song on the creative elements of the series…”
Netflix references their future endeavors related to “Bridgerton” such as The Bridgerton Experience, merchandise, etc. Which is in conflict with the musical.
They say “Barlow & Bear have admitted (publicly) that (they) ‘don’t own the IP.’ Yet…Barlow & Bear’s attorneys have 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.”
This clarifies some things.
Many fans of the musical were angry at Netflix for “not trying to work with Barlow & Bear and, if they had no intention of doing so, why didn’t they file this suit earlier?” (Paraphrased.) According to this filing, Netflix did try to work with Barlow & Bear, and Barlow & Bear violated the terms set forth. They didn’t file this suit sooner because they were supportive of the venture until it became a for-profit project that was in direct competition with Netflix’s ventures.
This show also cannot be dubbed a parody – according to everyone involved this is a serious adaptation of the source material and is not trying to “make fun” of any elements of “Bridgerton.”
Mikey Jo (of Mikey Jo Theatre) does a wonderful deep dive into this lawsuit and if you would like more information I recommend checking it out: https://www.youtube.com/watch?v=3Jmf6kAMNWI
This project also cannot rightly be dubbed “Fan Fiction,” as, again, it is a straight adaptation of the source material, not a made-up story in the world of “Bridgerton.” And even if it was, fan fiction is a realm of copyright law that, in essence, is still very much the wild west. Laws are not entirely clear on the subject, as is evidenced by the ongoing Omegaverse suits which have gone all the way to Federal court. When fan fiction was completely the domain of free online postings it was a bit “no harm, no foul” as no money was being made by anyone, and therefore no one was infringing on royalties, and was such a niche thing that it was unlikely anyone was choosing to read fan fiction instead of purchasing the original book/film/etc. on which the fan fiction was inspired.
But now that fan fiction can be turned into a huge money maker (dependent upon the need to be “transformative,” mentioned earlier,) and can exist in worlds entirely made up online where no one owns a copyright, who created what first is muddy territory. New laws are being written every day so in this arena it’s better to be overly cautious. If you would like a deep dive into this area of copyright I highly recommend Lindsay Ellis’ video essay: “Into The Omegaverse: How a Fanfic Trope Landed in Federal Court,” and her follow up “Addison Cain’s lawyer e-mailed me, and it only got worse from there.”
Another, very different example of IP infringement is The Door McAllen production of “Hamilton” (and, it later emerged, their production of Disney’s “Beauty and the Beast.”) The church claimed they had permission to do “Hamilton” but representatives of “Hamilton” claim otherwise – and especially of note is that the church was never given permission to alter any of the text.
Door McAllen Church’s illegal production of ‘Hamilton’.
There are certain copyright exemptions for religious institutions – for example, churches are allowed to use songs as part of their worship service without paying royalties. That right does not extend, however, to doing large portions of a show or changing material.
In fact, it is never legal to perform large sections of, or the entirety of a work without permission – even if you’re a religious institution and even if you are not selling tickets or making any money. Truth be told there are a lot of times that companies will look the other way (I’ve seen many an elementary school production of, say, “The Lion King” where Disney wasn’t knocking down their door,) but that doesn’t mean it’s legal, and it doesn’t mean you can’t be shut down.
Likewise, whatever the circumstance, it is 100% illegal to change the text of a work you are performing (unless you have received specific permission,) even if you have been given the licensing rights. There are numerous examples of productions that have obtained the rights to a show and then taken an axe to the script, only to be shocked when they get shut down. Honestly, this is a positive thing. It protects the authors’ work and intention and, theoretically, it inspires others to create original work.
Just as Jonathan Larson created his own, fantastic dystopian tale when he couldn’t get the rights to “1984,” you can use your creativity to create an original story that examines the themes and ideas you want to explore. The Door McAllen could have written an original musical exploring evangelism without trying to shoehorn that idea into previously existing works. However, an original show wouldn’t come with the brand recognition and love that “Hamilton” and “Beauty and the Beast” garner. And this is a big aspect of their copyright infringement. The Door McAllen “stealing” that brand recognition and using it for their own benefit is detrimental to the original creators.
What does this mean for you?
If you are a creator it’s important for you to protect your work. Nowadays it’s pretty easy to prove basic ownership – everything from sending work as an e-mail attachment to a document when it was completed, to even basic writing programs coming with a time and date stamp are helpful in this regard. But, in the U.S. if you want to officially copyright your work you can visit (https://copyright.gov) You can also register a script with the Writer’s Guild of America (https://www.wgawregistry.org) – which comes with fewer protections than copyright registration, but it is a faster and cheaper way to at least establish ownership.
Keep in mind, you cannot copyright a general idea…only a specific text. No one can “own” a trope or a concept.
If you are thinking of adapting a pre-existing work, do your due diligence. Check if something is in the public domain, and I mean REALLY check. For example, “Peter Pan” is technically in the public domain…but only the book. Before the book, there was the stage play, and author J. M. Barrie left those rights in perpetuity to the Children’s Aid Society. So, technically, you are free to adapt the book, but you can’t adapt the play (I know, tricky distinction…)
Likewise, “The Wizard of Oz” books are in the public domain, but not the MGM film rights… that means if you reference things that are specific to the film such as the ruby slippers, or even saying “yellow brick road” instead of “the road of yellow brick” you can find yourself in hot water. Even the title “The Wizard of Oz” may not be safe as the title of the original book was “The Wonderful Wizard of Oz.” That’s one of the reasons that the creators of the musical “Wicked” came up with some of their fun turns of phrases. Notice that Nessarose says “Jeweled shoes” when receiving the jeweled slippers from her father, not “Ruby slippers”, and how Glinda says “That’s right, you just take that one road the whole time”, not “Follow the yellow brick road”.
If you want to do a straight adaptation of a work not in the public domain – get the rights. IMDB has access to the contact info for the representatives for almost every writer/creator/etc. in the industry. It doesn’t hurt to reach out and ask – that’s how a lot of people have gotten rights. If they say no, use your initial idea as a jumping-off point to create something totally original and unique.
And if you do want to venture into a fair use adaptation – a parody, etc. Make sure you’ve got all your bases covered and you do your research to make sure what you’ve written is really protected under fair use. Run it by others.
I highly recommend Volunteer Lawyers for the Arts (https://vlany.org/request-assistance/) and if you are a member of the Dramatists Guild or Authors Guild they have fantastic free legal assistance as well. Zachary Alinder and Julie Ahrens are leaders in the field of IP law and two of the lawyers most highly trusted and recommended to consult, especially in this area (and I personally can’t recommend them enough).
If need be, be in communication with the rights holders, and above all make sure that your work is in no way competitive with the original work in question.