By: Brian Medich   [10/25/22]

More often than not, if not fair use,[1] the answer is probably yes. A fan-created work does infringe the copyrights of the work upon which it is based, as they are considered derivative works of art[2] – and the copyright owner has the exclusive right to prepare derivative works of their own source material. 17 U.S.C. §106(2). However, generally, a copyright owner may not care about fan-created works (i.e., fan fiction) unless, for example: (1) the fan-created work begins to diminish the original work in some way (e.g., the fan-created work gets a little too X-rated for its G-rated source material’s taste, etc.); (2) the fan-created work begins to be commercially successful and lucrative (i.e., taking money out of the copyright owner’s pocket); or (3) the fan-created work is impeding and/or harming the copyright owner’s own plans for the copyrighted materials (e.g., the copyright owner plans to expand to live performances, but a fan has already beat them to it, etc.).[3] Now let’s turn to a very recent example where a fan-created work became too big for the copyright owner’s taste. 

Netflix – the content streaming and production giant – recently sued Emily Bear – an American composer, pianist, songwriter, and singer – and Abigail Barlow – an American singer-songwriter – for copyright and trademark infringement of Netflix’s hit-show “Bridgerton” (hereinafter the “Show”). See Netflix Worldwide Entertainment, LLC et al. v. Barlow et al., Case No. 1:22-cv-02247 (D.D.C. 2022) (hereinafter, the “Case”). 

As we all surely remember, the first season of “Bridgerton” stole our imaginations and television screens in late 2020, as we binged the love affair that unfurled between Daphne Bridgerton and Simon Basset in the imaginary Regency era London ton of Grosvenor Square –through the added film of Lady Whistledown’s gossipy narration (voiced by Julie Andrews). Or at least… that’s what I’ve been told…  

Anyways, the Show was met with critical acclaim and its popularity, at the time, flooded the content made on TikTok – the short-form user video app. That’s where Emily Bear and Abigail Barlow entered the scene (now known professionally as “Barlow & Bear”), with Abigail Barlow posting a soon-to-be viral video to TikTok in January 2021, which led to a series of viral videos in which Barlow & Bear essentially wrote an entire musical on TikTok – Aka “The Unofficial Bridgerton Musical” (hereinafter the “Musical”). 

Likely because of the virality of their videos, Barlow & Bear wanted to record a Musical album to be released on Spotify – the music streaming service. The problem is they didn’t own the copyright (or trademark for that matter) to “Bridgerton” – and the Musical was a derivative work of art of the Show, as its lyrics described the plots and characters of the Show’s first season and copied dialogue verbatim from the Show. So, Barlow & Bear appropriately sought permission from Netflix in order to record their Musical album. 

Netflix, for its part, did not provide express permission/authorization to Barlow & Bear for their Musical album, but did say that it would “not stand[] in the way.” See the Case. Although we don’t know exactly why Netflix did not stop Barlow & Bear from recording their Musical album – which was clearly a derivative work – it’s likely because (1) Netflix had already tweeted support for Barlow & Bear’s TikTok videos and didn’t want to look like the bad guys, and (2) the Musical provided positive press and hype for the Show without Netflix having to do any additional work. And so, Barlow & Bear recorded their album, which went on to win the 2022 Grammy Award for Best Musical Theater Album (if you haven’t listened, give it a try – it’s quite good, so I am told, if not a bit derivative). 

But Barlow & Bear didn’t stop there. And, while Netflix did not stand in Barlow & Bear’s way to the Grammy’s, Netflix did take issue with Barlow & Bear putting on live, for-profit performances of their Musical (including one at the Kennedy Center in Washington, DC), against Netflix’s explicit warnings that they were not authorized to do so. Essentially Netflix had been nice, and quasi-allowed Barlow & Bear to infringe its copyright in order to record the Musical album, but it was not going to allow Barlow & Bear to continue to reap rewards at the detriment of its copyright. So, Netflix filed the short-lived litigation on July 29, 2022, against Barlow & Bear, which was then voluntarily dismissed with prejudice by Netflix on September 23, 2022 – signaling a likely licensing agreement between Netflix and Barlow & Bear. 

And thus, the tale of the fan-made derivative work that won a Grammy has likely concluded (without the copyright owner’s supervision and involvement, that is). 

To learn about how Dunlap Bennett & Ludwig can assist you with your legal needs, contact us by calling 800-747-9354 or by emailing clientservices@dbllawyers.com.


[1] Fan-created works may not infringe the copyrights of the works they are based on if exempted as “fair use.” The Copyright Act provides that: 

In determining whether the use made of a work in a particular case is a fair use the factors to be considered shall include:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

(4) the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. §107. 

[2] For reference, the Copyright Act defines “derivative work” as:

[A] work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work.”

17 U.S.C. §101. 

[3] These are only a few, illustrative examples. There are numerous other reasons why a copyright owner might take issue with a fan-created work – and certain copyright owners have zero tolerance for any fan-created works. Remember, if the fan-created work isn’t exempt under the fair use doctrine, which is a case-specific analysis, a copyright owner really doesn’t need a reason to seek an enforcement action to protect their copyrighted material. 


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Posted in: Copyright, Intellectual Property

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