New York (CNN Business)On Christmas Day 2020, Netflix premiered “Bridgerton,” an old-fashioned lushly designed Regency Romance. Gorgeously costumed, multiracial, LGBTQ-friendly and featuring sizzling sex and explicit nudity, it seemed just the thing TV needed in the global Covid lockdown. The series had viewership of 82 million households worldwide within four months, according to Netflix.
Last week, Royal Albert Hall in London canceled a performance of “The Unofficial Bridgerton Musical,” a fan-created passion-project inspired by the show. Days earlier, the unlicensed production sold out the Kennedy Center. Netflix (NFLX) — which had long tolerated the musical born on TikTok — sued the show’s creators to shut it down.
“There is so much joy in seeing audiences fall in love with Bridgerton,” explained star producer and series creator Shondra Rhimes, in a statement. ‘But what started as a fun celebration by [fans] Barlow & Bear on social media has turned into the blatant taking of intellectual property.”
So, don your jewels and bring round the horse-drawn carriage: Daphne Bridgerton and her dashing Duke of Hastings are headed to court.
This is just the latest of a spate of legal spats between creatives and creators over the ownership and interpretation of works of art.
As social media becomes pervasive, and pop culture often immersive, fans are literally taking license. Earlier this month, the Door McAllen church in Texas presented an unauthorized version of “Hamilton” which likened homosexuality to drug addiction. On August 10, Lin-Manuel Miranda, the musical’s creator, tweeted, “Grateful to all of you who reached out about this illegal, unauthorized production. Now lawyers do their work.”
And this fall, the US Supreme Court will hear a case regarding artist Andy Warhol’s alleged misappropriation of a photographer’s work.
These cases turn on complicated legal issues such as fair use, trademark infringement and ownership of intellectual property. And they are blurring the line between audience, interpreter and creator.
The Unofficial Bridgerton Musical
The debut of “Bridgerton” coincided neatly with the rise of TikTok. In January 2021, singer and fan Abigail Barlow went on the app with a question: “Ok, what if Bridgerton was a musical?” and burst into song. She teamed up with Emily Bear, a piano prodigy who had toured as a child.
The two American 20-something women began to write and perform songs related to the program, often using exact dialogue from the series.
No Lerner & Loewe, Barlow and Bear offered a simple yet charming score: “If I was a man, I’d go to Japan… I’d summer in Cannes, I’d play in the sand.”
It was a huge hit with fans because the duo invited feedback, participation and suggestions on TikTok. It felt like a crowd-sourced artwork and something never quite done before.
At first, Netflix found the fan fuss, if anything, delightful, and certainly good publicity. A few weeks in, Netflix tweeted “Absolutely blown away by the Bridgerton musical playing out on TikTok” and offered Barlow “a standing ovation.” The project eventually grew to 15 songs. An album was released.
In November 2021, that album was nominated, somewhat improbably, for a Grammy Award for Best Musical Theater Album. Even more improbably, it won against far more seasoned nominees Andrew Lloyd Webber, Burt Bacharach and Stephen Schwartz (“Wicked”). A charity concert was planned.
Queen’s Ball vs. TikTok
Meanwhile, Netflix was having a ball — a Queen’s Ball to be exact. A touring “Bridgerton Experience” produced was staged in various cities two or three times daily. It featured elaborate sets, bewigged violin players, chandeliers, dances and acrobats. Top price was about $85.
At each performance, the Queen named “The Diamond of the Season.” How she picks one is not clear, but it illustrates Netflix’s keen interest in the social media world that “infuencers” are invited to write a letter in advance on why they should be chosen.
In late July, Barlow & Bear performed their once-underground ‘Unofficial’ show at the Kennedy Center, complete with The National Symphony orchestra. Top ticket price was $149 for a meet-and-greet with Barlow and Bear.
That’s when Netflix filed a complaint alleging copywright infringement, unjust enrichment, and trademark infringement. It also alleged “false origin,” which is creating the implication that Netflix had okayed the production when it had not.
Jane Quinn, author of the series of books that chronicles the love lives of the randy Bridgerton siblings on which the Netflix show is based, weighed in with her own statement.
“I was flattered and delighted when they began. There is a difference, however, between composing on TikTok and recording and performing for commercial gain,” she said.
Some fans were dizzy at the seeming turnaround. One young women took to TikTok to explain to the streamer that Netflix obviously doesn’t understand the stakes involved: The lawsuit gets in the way of the career plans of dozens of fans, she scolded. “So many women have been manifesting their career on this musical…nonunion tour, tour, Broadway.”
Balderdash, says Aaron J. Moss, attorney and past president of the Los Angeles Copyright Society. If anything, he said, “Netflix went further than nearly any other content creator has gone before in terms of the latitude it gave Barlow & Bear.”
According to Netflix’s complaint, “Netflix offered Barlow & Bear a license that would allow them to proceed with their scheduled live performances at the Kennedy Center and Royal Albert Hall, continue distributing their album, and perform their Bridgerton-inspired songs live as part of larger programs going forward. Barlow & Bear refused.”
Attorneys for Netflix did not return e-mails seeking comment. Neither did Barlow and Bear’s representatives at the Creative Artist Agency, CAA.
Did Netflix want too big a share of the potential profits in exchange for that license? Broadway business people say it’s just as likely that Netflix was willing to cede significant profits from the musical to its creators but didn’t want to guarantee they would remain front-and-center in its presentation.
Meanwhile, filming for season three just started in the UK, in Bath and London. The production skips ahead to book four in the series, this one the tale of Penelope Featherington and her longtime friend-turned-crush Colin Bridgerton.
And if Barlow & Bear are looking for inspiration for their next musical, the story of Icarus would make a good choice, advises attorney Moss. “He flew too close to the sun, and as his wax wings melted, he plummeted into the sea below. Even better, it’s in the public domain.”
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