“It seems our diamond requires a closer inspection,” famously says the fictional character Lady Whistledown of Regency-era London’s most beautiful debutante in Bridgerton (Season One). Bridgerton, for the uninitiated, is the Netflix hit series based on historical romance novels by Julia Quinn. Two creative professionals who first came to fame creating Tik Tok videos based on Bridgerton have created a diamond of their own, and it’s gotten them into hot water.
Abigail Barlow and Emily Bear, along with their associated businesses, were sued by Netflix in U.S. District Court for the District of Columbia. Capitalizing on their viral Bridgerton-based Tik Tok musical videos, the pair staged what was, said Netflix “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.” The concert was on July 26, 2022, and the complaint was filed only three days later.
The hitch? According to Netflix, the concert featured lyrics that copied “verbatim dialogue, character traits, and expression and other elements from the Bridgerton the series,” and used the BRIDGERTON trademark without permission. In an ad promoting the live show, the two artists prominently featured the BRIDGERTON mark and registration symbol, noting only in fine print (as shown below), “BRIDGERTON is a Trademark of Netflix used with Permission. This event is not endorsed or sponsored by Netflix or its partners.”
Netflix further alleged that Barlow and Bear had expressly requested a license for a recorded album and charity promotion for which they would engage performers from London’s West End who were unemployed due to the pandemic. Netflix declined to offer the license and although it did not “stand in the way” of either. When the album was released, it was nominated for a Grammy. Netflix claimed that it repeatedly advised Barlow and Bear, including after the Grammy nomination, that live performances of a Bridgerton-based repertoire were strictly prohibited and that the London charity event, which was repeatedly rescheduled, would include only a few Bridgerton-based songs, and would be a “one-time occurrence.” Barlow and Bear’s representative also advised Netflix that because they did not want to become known only for the Bridgerton compositions, they would be moving on to other creative pursuits. In its making of emphasis on the lawsuit of these communications, one can see Netflix’s balancing the popularity of Barlow and Bear with the imperative that it enforces its intellectual property rights. It is a struggle familiar to any intellectual property owner who does not want to alienate its fans and followers by too aggressively pursuing enforcement, particularly where no profit is being made.
However, when Barlow and Bear staged the for-profit Kennedy Center concert, the line in the sand had, for Netflix, been crossed. Netflix’s claims under copyright allege that the concert is an unauthorized “derivative work.” The right to make a derivative work based on a pre-existing copyrighted work is one of the exclusive rights afforded to copyright owners under the Copyright Act. Therefore, Netflix claims, that The Unofficial Bridgerton® Musical is an unauthorized derivative work that violates its copyrights in the Bridgerton series. Netflix also alleges that in using its registered BRIDGERTON trademark without its permission, Barlow and Bear infringed Netflix’s trademark rights under the federal trademark law, the Lanham Act.
What will happen next? As with the Bridgerton series, tune in to find out.
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