Some brands are notoriously hyper vigilant when it comes to protecting their intellectual property, such as the National Football League enforcing its “Super Bowl” trademark. Others are more loose, such as Netflix which often allows fans to create content and host events incorporating trademarks and copyrights from hit shows like Stranger Things and Bridgerton.
But even permissive brands can be pushed too far and start pushing back. Netflix recently launched a new legal drama when it filed suit for trademark and copyright infringement against two creative professionals who rose to fame creating Tik Tok videos based on the Bridgerton series.
Abigail Barlow and Emily Bear’s Bridgerton-based Tik Tok musical videos fell on the right side of Netflix’s policy to (at least implicitly) encourage fan-created content, which can help make the underlying IP more valuable. But they crossed the line when they created, as Netflix alleges, “a massive, for-profit stage show—entitled ‘The Unofficial Bridgerton Musical Album Live in Concert’ to a sold-out audience at the Kennedy Center, with tickets ranging up to $149 each and VIP packages.”
This case exemplifies the fine line that brands must establish between acceptable fan-created content and infringement of IP that necessitates enforcement. Let’s break down what happened, why it matters, and discuss the IP balancing act brands face.
A Bridge(erton) Too Far
This saga began when songwriters Barlow and Bear, known as the “Bridgerton girls”, racked up millions of views on Tik Tok, performing Bridgerton-inspired songs on the social platform.
The duo went on to create an album consisting of their songs, which ultimately was nominated for and won a Grammy. In its complaint, Netflix alleges that Barlow and Bear requested a license for the album which Netflix declined to grant. However, it did not “stand in the way” of it.
Then Barlow and Bear went even further. Too far from Netflix’s standpoint.
Barlow and Bear’s informed Netflix that they would be performing the Unofficial Bridgerton Musical, based on the songs from the album, at the Kennedy Center. It was not couched as a request—they did not ask for Netflix’s permission. Netflix responded that the planned performances were not authorized and that, according to the complaint, “such exploitation would constitute willful copyright and trademark infringement unless they negotiated a license–which Netflix was willing to do.” Barlow and Bear went forward with the performance without obtaining a license.
They performed 14 of the 15 songs from the album to a sold-out crowd. Tickets were priced from $29 to $149 per seat in a 1,100-seat theater. There were VIP packages available, and merchandise bearing Bridgerton trademarks was sold.
Netflix filed suit alleging copyright and trademark infringement. Ultimately, in late September, 2022, Netflix dismissed the lawsuit after reportedly reaching an (undisclosed) settlement with Barlow and Bear.
While this case came to an amicable end, brands are only in the beginning stages of coming up with approaches to protect their IP in a world where social media gives everyone a publishing platform, the creator economy continues to flourish, and fans are so integral to increasing the visibility and value of copyrighted works.
Walking the Fine Line Between Fan-Created Content and IP Infringement
When it comes to their IP, commercial brands tend to be focused on “protection.” When the NFL sends cease and desist letters to local bars using the term “Super Bowl” in their promotional signage, the underlying logic is that allowing the proliferation of the Super Bowl trademark will create confusion and dilute its value.
However, some brands don’t see IP protection as such a binary choice. Netflix was permissive until a line was crossed. And they’re not alone. When Quidditch teams, inspired by the Harry Potter franchise, started emerging at American universities in the 2000s, Warner Brothers could have sought to shut this activity down, or attempt to capture value from it through licensing. Instead, Warner Brothers allowed Quidditch leagues to grow, and now there are hundreds of teams across continents, and even an International Quidditch Association (although, due to controversy surrounding J.K. Rowling, the official name of Quidditch changed to Quadball in July, 2022).
As Georgetown University Law Professor Madhavi Sunder explained in a Harvard Business Review article, “[C]ompanies ought to be pinching themselves that their fans want to bring their fictional worlds to life. Fan engagement extends both the lifespan and the value of the work. Fans make the work relevant to themselves and others. Their love and devotion are what creators live for.” Sundar argued that the potential for brand fans as advocates to make a brand stronger and more valuable merits a “more measured approach to asserting intellectual property rights.”
On the one hand a platform like Netflix stands to benefit from fan-created content because it can increase the awareness and value of its shows/brands like Bridgerton. But, on the other, when fans start monetizing their content without licensing the underlying copyright, that can become a problem—not only because it may turn the copyright owner from a supporter to an adversary, but also because it weakens the fan-content-creator’s argument that their work is protected under the fair use doctrine.
The Fair Use Doctrine is codified as Section 107 of The Copyright Act of 1976. Long before it was added to the statute, courts began to recognize that otherwise unauthorized infringements of copyright were allowed under certain “fair use” circumstances. Some instances when copyrighted material may be used without obtaining the copyright owner’s permission include criticism, commentary, news reporting, scholarship, and also parody.
Indeed, parodical productions of well-known copyrighted fiction material have been staged on many occasions without crossing the infringement threshold. One of the best-known examples is A Very Potter Musical, which was inspired by the Harry Potter series but included unique subplots and interpretations of the characters. That’s an important distinction—that makes a big difference—that distinguishes A Very Potter Musical from The Unofficial Bridgerton Musical, which incorporated numerous elements of the source material.
When evaluating these types of fair use issues, courts look at several factors, including:
- Whether the use is “transformative.” Does the new work transform the original work or merely copy it?
- The nature of the original work. In general, fair use will be found more often when factual work is used rather than fiction.
- The amount of original work used. The more that is used, the more likely it is that fair use won’t apply.
- Whether the use will negatively affect the original work, such as by reducing its profit potential.
Those who create fan fiction, as well as individuals and corporate brands who have copyrighted work to protect, must consider and evaluate these factors when weighing their respective rights and obligations. But it’s not just the legal issues that matter.
As discussed, brands have the potential to benefit from the derivative creations of fans, so taking too hard of a line to protect IP may serve to weaken it. If images of cease and desist letters threatening legal action against creators of fan fiction start getting spread on social media, it could create a backlash. Conversely, as in the case of Bridgerton, fans can take things too far.
Every brand’s IP strategy hinges on a number of unique legal and business considerations. The only wrong approach to dealing with these types of issues: acting as if there is a single playbook for every issue arising at the intersection of IP and fan fiction.