Netflix Sues Barlow & Bear

Madison Mahady

In December 2020, Bridgerton debuted on Netflix to fan and critical acclaim. Nine months later, Abigail Barlow and Emily Bear released an album titled “The Unofficial Bridgerton Musical”, a musical style album inspired by the Bridgerton series. On July 26th of this year, Barlow & Bear held a performance of the album at the Kennedy Center in Washington D.C. Following this performance, Netflix filed a lawsuit claiming that Barlow & Bear are infringing on their copyright and trademark rights. You may be asking: why is Netflix just now suing Barlow & Bear when the album came out almost a year ago?

On August 2nd, Deadline released the lawsuit documents online. In the lawsuit, Netflix claims that “they are not required to sue every infringer” but that Barlow & Bear have “taken valuable intellectual property from the Netflix original series Bridgerton to build an international brand for themselves.” There are four counts that Netflix has brought against Barlow & Bear: Copyright Infringement, Declaratory Relief, Infringement of Registered Trademark, and False Designation of Origin. Below is a breakdown of the case from background information, to the infringing performance, and the specifics of the aforementioned counts. 

Vocabulary

Before you dive in there are two key terms you need to understand: 

 

Copyright: A copyright protects artistic and literary works for a limited amount of time. Among copyrightable works are: literary, musical, & dramatic works, motion pictures & other audiovisual works, sound recordings, choreographic works, and derivative works. As soon as a work is fixed into a tangible form, it is subject to copyright protection. To be able to sue someone for copyright infringement, the copyright must be registered through the Copyright Office (at least in the U.S.). 

 

Trademark: A trademark is a brand name, logo, package design, or a combination of the three used to identify and distinguish good or services from another. Brand names, trade dress, and collective marks are just three examples of different trademarks. To maintain a trademark the owner must continuously use the mark, most often in commerce. To be able to sue someone for infringing on your mark, the trademark must be registered with the U.S. Patent and Trademark office. 

Background

Upon the release of Bridgerton season 1, fans flocked to social media to sing their praises. For Emily Bear and Abigail Barlow, they literally began to sing their praise, creating songs that went along with the story of Bridgerton. Barlow & Bear showcased the process of creating the musical on TikTok, gaining millions of views in the process. In March 2021, Barlow & Bear approached Netflix and asked if they could have Netflix’s “blessing” to go ahead and make a recording of the Bridgerton musical they had been creating. They had also asked if they could perform the album live at one specific charity event in the UK in either July or August. Netflix agreed that the album could be played live at this charity event. Allegedly, Netflix informed Barlow & Bear’s representative multiple times that this charity performance was a one time thing, and that the album was still unauthorized. The representative allegedly understood and confirmed that this would be the only live performance of the album. 

Netflix Worldwide Entertainment owns the registered copyright for Bridgerton. Their copyright rights mean that Netflix has the exclusive right to authorize any Bridgerton related derivative work

In June of 2021, Netflix responded saying that they were “not approving or authorizing” Barlow & Bear’s album or live performance, but “that it was not “standing in the way”.” When they became aware in August that a derivative album was to be released for streaming, Netflix allegedly advised Barlow & Bear of “a clear line”: Netflix would not authorize any live performances of “The Unofficial Bridgerton Musical”, nor would they allow for any other derivative works that might compete with Netflix’s own live Bridgeton Events. Barlow & Bear’s representative allegedly said they understood and accepted these conditions. They also allegedly told Netflix that Barlow & Bear would focus on other work outside of the album, so they would not only be known as “the Bridgerton girls.”

Barlow & Bear have openly admitted that “The Unofficial Bridgerton Musical” is a derivative work. Originally started as a fan project, the musical was one of many works being created by Bridgerton fans. The lawsuit directly states, “Barlow & Bear have repeatedly admitted that they intentionally based every single song on the creative elements of the series.” Barlow has, on multiple occasions, expressed how the dialogue from the show has been a direct inspiration for the songs, going as far as using the dialogue verbatim in certain songs. Netflix also states in the lawsuit that “plot, pace, sequence of events, mood, setting, and themes are replicated faithfully.” 

In March 2022, “The Unofficial Bridgerton Musical” won the Grammy Award for Best Musical Theater Album. After this award was announced, Netflix allegedly contacted Barlow & Bear to remind them of the line that had been set: no live performances. Barlow & Bear’s rep allegedly told Netflix that, aside from the Grammy nomination, and any follow-up interviews in the case of the album winning, that Barlow & Bear did not have any Bridgerton related plans for the future. This assurance from their rep stopped Netflix from pursuing any legal enforcement action.

The Kennedy Center Performance

On July 26th, 2022, a live performance of “The Unofficial Bridgerton Musical” was performed at the Kennedy Center in Washington D.C. This show was performed by a variety of musical guests, including Tony Award Winners and Nominees. Netflix alleges that they had no knowledge of the performance until June 7th, and that Barlow & Bear’s representative stated “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.” A license was allegedly offered to Barlow & Bear by Netflix, authorizing this live performance as well as allowing for future live performances, but Barlow & Bear allegedly refused. 

At this live performance, Barlow & Bear performed new songs that they had created based off of Bridgerton. Although their rep had allegedly told Netflix that the duo would be focusing on other projects, these new songs further breached the understanding between the parties. Barlow & Bear had also created merchandise to be sold at this performance. This merch prominently featured the BRIDGERTON mark and was sold both at the venue and online. Additionally, performance materials at the Kennedy Center heavily featured the BRIDGERTON mark. 

Netflix states that they have an issue with the BRIDGERTON mark being used at both the performance and in its marketing materials. On the posters promoting the event, there was a note on the bottom stating that BRIDGERTON is a trademark of Netflix and that it was being used with permission. Netflix states in the lawsuit that “Barlow & Bear lacked any license, approval, or authorization to exploit Bridgerton intellectual property in connection with the Kennedy Center performance.” They further go on to state that “to the extent Barlow & Bear ever claimed to believe they had such a license, approval, or authorization – despite Netflix’s clear statements to the contrary – it has now been unequivocally revoked.”

The 'Threat' To The Bridgerton Experience

Starting in early 2022, Netflix began to host themed events for Bridgerton fans, titled The Queen’s Ball: A Bridgerton Experience. These Regency-era themed events have been held in multiple cities across the US where fans can interact with  themed actors and listen to Bridgerton themed music. These events are ticketed and sell merchandise with the BRIDGERTON mark. 

Netflix alleges that the Kennedy Center performance interfered with the Bridgerton Experience, as one of the cities offering the event is D.C. Netflix believes that the Kennedy Center performance attracted fans who otherwise would have attended their own event, and that this performance “created confusion as to whether Netflix approved Barlow & Bear’s unauthorized derivative work.” Netflix claims that Barlow & Bear directly benefited from this false association.

The threat that these live performances may have on the Netflix offered experience expands past D.C. Barlow & Bear currently have another performance of their album schedules for September 20th at the Royal Albert Hall in London. Netflix believes that this performance will threaten their plans to bring the Bridgerton Experience to the UK, just as they believe it threatened their experience in D.C.

Impact On The Bridgerton Brand

Through the live performances and the sale of merchandise using the BRIDGERTON mark, Netflix believes that Barlow & Bear have caused them harm, and will further cause them harm in the future. By not stopping Barlow & Bear, Netflix believes a precedent will be set that will encourage others to further infringe on their copyright.

 

As mentioned earlier, Netflix has brought four counts against Barlow & Bear. Below are the counts taken almost verbatim from the lawsuit. Linked next to each count are the sections and codes that Netflix is suing under.  

Count I: Copyright Infringement

The first count of the lawsuit states that Netflix Worldwide Entertainment owns the registered copyright for Bridgerton and that the Defendants have openly stated “The Unofficial Bridgerton Musical” is a derivative work of Bridgerton. Music from the album also copies liberally and sometimes identically from aspects of the series. Netflix has made it clear that Barlow & Bear do not have a license. As of at least June 17th, 2022, “Netflix made it clear that to the extent Defendants claimed to be under the misimpression that they had a license, that license has been revoked.” Therefore, Barlow & Bear’s “public performances, distribution and/or creation of new derivative works based on Bridgerton infringes Netflix Worldwide Entertainment’s copyright.” 

Netflix is suing Barlow & Bear under: 17 U.S.C. § 502, 504, 504(c)(2), 505

Count II: Declaratory Relief

Netflix Worldwide Entertainment never approved a license to be administered to Barlow & Bear for “The Unofficial Bridgerton musical” and believe they are entitled to declaratory judgment “that Defendants lack any right or license to exploit the elements of “The Unofficial Bridgerton Musical” that they derived from Bridgerton.” 

Count III: Infringement of Registered Trademarks Under 15 U.S.C. § 1114

BRIDGERTON is a federally registered trademark issued to Netflix Studios. Netflix Studios has continuously used the mark for commerce in the United States since its inception. According to Netflix, the BRIDGERTON mark is distinctive and has acquired a secondary meaning. “By creating, promoting, publishing, and selling merchandise featuring the “The Unofficial Bridgerton Musical,” Defendants have used in commerce a reproduction or copy of Netflix Studios’ registered BRIDGERTON mark in connection with the sale, offer for sale, distribution, or advertising of goods or services without Netflix Studios’ authorization or consent.” The Defendants use of “The Unofficial Bridgerton Musical” is similar to Netflix’s BRIDGERTON mark and is likely to cause confusion to the consumer. “The aforesaid acts of Defendants constitute trademark infringement in violation of Section 32 of the Lanham Act.”

Netflix is suing Barlow & Bear under: 15 U.S.C. § 1114, 1116, 1117, 1117(a)

Netflix owns all rights, title, and interest in the BRIDGERTON mark. “Defendants have used and continue to use Netflix Studios’ mark on merchandise without Netflix Studios’ license or authorization.”  “Defendants’ use of “The Unofficial Bridgerton Musical” is likely to cause confusion, to cause mistake, and/or deceive consumers as to the affiliation, connection, or association of Defendants with Netflix and/or as to the origin, sponsorship, or approval of Defendants’ merchandise.” These acts violate section 43 of the lanham Act, 15 U.S.C. (symbol) 1125. Netflix believes the defendants conduct is willful and that the defendants have caused harm and will likely cause more harm to Netflix Studios. 

Netflix is suing Barlow & Bear under: 15 U.S.C. § 1116, 1117, 1117(a) 

Summary

Essentially, this lawsuit boils down to Barlow & Bear’s usage of the Bridgerton characters, plot, and themes. Netflix is alleging that they didn’t protest Barlow & Bear creating the musical, as long as it stayed in an audio-only format. Now that live performances are being conducted, they are using their rights as copyright and trademark holders to address the infringed intellectual property. At this time, Barlow & Bear have yet to release a comment. It will be interesting to see what they have to say about the lawsuits claim, and what their defense will be. This is an ongoing case so updates will surely come as more information is released. 

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