But the seemingly unstoppable ascendance of The Unofficial Bridgerton Musical—a 15-song concept album inspired by the hit Netflix series—came to an abrupt halt on July 29, when the streaming service filed a lawsuit accusing the musical’s creators, 23-year-old Abigail Barlow and 20-year-old Emily Bear, of copyright infringement. Deadline’s Bruce Haring was the first to report the news.
In the civil complaint, Netflix alleges that Barlow and Bear “have taken valuable intellectual property from the Netflix original series ‘Bridgerton’ to build an international brand for themselves. … Netflix owns the exclusive right to create ‘Bridgerton’ songs, musicals or any other derivative works based on ‘Bridgerton.’ Barlow & Bear cannot take that right—made valuable by others’ hard work—for themselves, without permission. Yet that is exactly what they have done.”
@abigailbarlowww Ignore the terrible queens English #IsThisAvailable #fyp original sound - Abigail Barlow
Netflix had expressed support for the musical when its songs existed only as snippets on TikTok. But the streaming giant drew the line when Barlow and Bear staged a sold-out show at the Kennedy Center featuring live performances of their hit tracks, with guest appearances by Broadway stars like Kelli O’Hara and Denée Benton. The for-profit concert (tickets cost up to $149) competed with Netflix’s own “Bridgerton”-themed live events and falsely claimed to have permission to use the “Bridgerton” trademark. Netflix filed its suit three days later.
The success of the fan-made passion project, which went viral on social media in early 2021 and quickly reached unanticipated heights, speaks to the changing landscape of popular culture. By beating out Broadway stalwarts like Andrew Lloyd Webber and Stephen Schwartz for Best Musical Theatre Album at the 2022 Grammys, Barlow and Bear ushered the genre “into the TikTok era,” as a March NPR headline declared. Now, however, the pair’s actions could spell trouble for other fan creators grappling with questions of fair use and copyright infringement.
“I personally kind of hope that [the case] settles,” Casey Fiesler, an information scientist at the University of Colorado Boulder who studies internet law and fandom, tells TechCrunch’s Amanda Silberling. “If this went to court and Netflix won, I might worry a little bit about precedent-setting for future fan works.”
What is The Unofficial Bridgerton Musical?
Shortly after “Bridgerton,” the Regency-era period drama based on Julia Quinn’s book series of the same name, was released on Netflix in December 2020, Barlow posted a clip of herself singing a song from an imagined “Bridgerton” musical. Adopting the persona of Daphne Bridgerton, the husband-seeking heroine of the show’s first season, she sang the first few bars of what would eventually become “Ocean Away,” the final track in The Unofficial Bridgerton Musical.
Inspired by the success of her viral TikTok, Barlow teamed up with Bear, a piano prodigy and composer, to write and produce a 15-song musical based on “Bridgerton.” The pair recorded their songwriting process on social media, inviting feedback from followers and incorporating suggestions into their creations.
“If you think about it, it was like we were workshopping instantly,” Bear told the New York Times’ Julia Jacobs in April. “We were getting live feedback in real time for people that would be coming to the show or buying the album.”
Netflix praised the duo’s efforts in a January 13, 2021, tweet, writing, “Absolutely blown away by the Bridgerton musical playing out on TikTok.” Quinn and various “Bridgerton” cast members also expressed enthusiasm for the project.
Instead of reimagining “Bridgerton,” the musical served largely as a straightforward adaptation, with plotlines, characterization and even lines of dialogue drawn directly from the streaming series. Despite the similarities between the two works, Netflix agreed “not [to stand] in the way” of Barlow and Bear’s planned album release, “in the spirit of supporting what [the duo] represented as two ‘Bridgerton’ fans’ expression of their appreciation for the series,” per the complaint.
Barlow and Bear released the official album of their unofficial musical in September 2021. Produced and orchestrated by Bear, who used “her computer and an electronic keyboard to create the sound of a full symphony orchestra,” per the Times, the 15 songs featured vocals by Barlow, who switched between a dizzying array of characters with ease. The album was a runaway hit, topping the charts and earning Barlow and Bear their 2022 Grammy win.
Taking Barlow and Bear to court
After the album’s release, Netflix representatives told Barlow and Bear they did not want the pair to engage in live performances that might compete with Netflix’s own live events. The duo agreed, with a representative assuring Netflix that Barlow and Bear did not want to become known as the “‘Bridgerton’ girls.”
This June, however, Barlow and Bear’s representative informed Netflix of the upcoming Kennedy Center performance.
“Rather than engaging with Netflix on its questions, Barlow & Bear’s representative stated that they were not asking for Netflix’s permission and would not further delay the announcement of the performance to afford the parties time to discuss,” the complaint states. “[Netflix] informed counsel for Barlow & Bear that the July 26 performance and any subsequent live performances were not authorized and that such exploitation would constitute willful copyright and trademark infringement unless they negotiated a license—which Netflix was willing to do.”
But the pair refused, instead proceeding with the Kennedy Center concert and announcing a separate September show (now canceled) at Royal Albert Hall in London. Netflix filed its suit in a Washington, D.C. district court on July 29.
As news of the suit broke, the tide of public opinion turned against Barlow and Bear, with internet commenters widely supporting Netflix’s bid to protect its intellectual property. The fact that the singer-songwriters could have negotiated a license to continue with their live shows but declined to do so made their actions even more mystifying.
“Maybe they got bad advice, or they were cocky, thinking Netflix wouldn’t come for them after they generated so much good press for the ‘Bridgerton’ brand, or, possibly, the license was too expensive to make it worth it,” writes Laura Wheatman Hill for Slate. “(Often a license of this type isn’t a flat fee but a percentage of the profits and a certain amount of control of the content.)”
Quinn and “Bridgerton” showrunner Shonda Rhimes have both released statements in support of the suit.
“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,” says Rhimes, per Deadline. Quinn, for her part, calls Barlow and Bear “wildly talented” but says she hopes the pair, “who share my position as independent creative professionals, understand the need to protect other professionals’ intellectual property.”
So far, Barlow and Bear have yet to publicly comment on the lawsuit.
Understanding copyright law
Derek Miller, a literary scholar at Harvard University who studies the intersections of art and law, tells NPR’s Deanna Schwartz that the timing of the lawsuit comes down to the perceived financial threat posed by Barlow and Bear’s for-profit performances.
“The dynamic has shifted where 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,” he says.
If Barlow and Bear don’t settle the suit before it goes to court, their lawyers will probably argue that the musical falls under fair use, which allows copyrighted materials to be used under certain circumstances without explicit permission. Per GW Libraries, factors considered in fair use analysis include the work’s purpose (is it commercial or nonprofit?), the amount of copyrighted material it uses, how transformative it is and how it might affect the copyright holder financially.
“The more critical [of the source text] a commercial reworking is, the more likely it is to be found to be fair use,” Miller says.
Other fan-made musicals have avoided copyright charges by clearly transforming the source material (for example, A Very Potter Musical, a similarly viral 2009 production that parodied the Harry Potter series) or staging performances for charity (consider Ratatouille: The TikTok Musical, which premiered as a one-night charity livestream in January 2021).
Rebecca Tushnet of Harvard Law School tells TechCrunch that she doesn’t think adapting a television show into a musical is a strong enough argument for fair use.
“Whether it’s parodic or not,” she adds, “you want to do something noticeably different from [the original], other than just translating it into a new medium.”
Aaron Moss of Copyright Lately concurs, writing, “Fair use can certainly exist in the absence of parody, but here, Barlow & Bear took the characters, plot and even verbatim dialogue from ‘Bridgerton’ and used these elements to faithfully tell what’s essentially the same story in musical form.”
The lawsuit’s potential implications for fan-made content are subject to debate. Copyright Lately suggests that Netflix’s filing has actually “leveled the playing field for other content creators” by ensuring The Unofficial Bridgerton Musical doesn’t dominate the vast landscape of the “Bridgerton” fandom. Slate, meanwhile, notes that the case could set a precedent that makes “fan work less likely to fall under fair use. Bad news for fan creators.”
In a statement to the Times’ Kalia Richardson, Netflix says it “supports fan-generated content” but argues that “Barlow & Bear have taken this many steps further, seeking to create multiple revenue streams for themselves without formal permission to utilize the ‘Bridgerton’ [intellectual property].”
The streaming giant concludes, “We’ve tried hard to work with Barlow & Bear, and they have refused to cooperate.”