Netflix Sues Over Bridgerton Musical

Abigail Barlow and Emily Bear started out as two of those fans, posting bridget In themed TikTok's, which got millions of views, leading the pair to create the fifteen song unofficial bridget In musical, This is Honeymoon from our Elaborate Rooms when Please Forgive Me Your Grace, and at this

year's Grammys it won the Best Musical Theater Album. But when Barlow and Bear staged a sold out performance of the musical at the Kennedy Center, Netflix discided that enough was enough, and, after repeated objections, sued them for copyright and trademark infringement. My guest is intellectual property litigator Terence Ross, a partner at Captain Uten Rosenman. So, Terry, is this considered a parody? I don't think so not. Even in

the broadest definition of parody. It is clear that actual dialogue from the bridgt In television show is used as lyrics. The characters on the stage were apparently dressed in costumes that were similar to the ones used intelligence show, the settings were similar to the television show, and the parent intent and effect upon the audience was to recreate the brit In television experience in a live performance with music. So I've been learning a lot about on fiction with

this lawsuit. So this would be a form of fan fiction. So yes, this is clearly a fan fiction work. Fan Fiction has been with us for decades now, and the legal standards relating to it are both crystal clear and sort of opaque. There's this complete agreement and clarity with respect to the fact that fan fiction is a derivative work, and the Copyright Act of nineteen seventy six, amongst the exclusive rights that conveys the copyright owners is the exclusive

right to produce derivative works. And there is no doubt whatsoever that this fan fiction is typically a derivative work and therefore constitutes copyright infringement absent one of two things happening. And again the law is clear on this. Either there has to be permission from the copyright owner to engage in producing the derivative work, or there has to be colorable claim of fair use under Section one on seven of the Copyright Act. Now that's the clarity we have here.

Where things get a little bit opaque is with respect to how producers of original content engage with producers of fan fiction. And you see that here in this bridget In lawsuit in its most dramatic form. Over the years, producers of content have to a certain extent welcome fan fiction in the sense that it creates a buzz about a work. There's no more powerful advertising marketing than word of mouth, and this is all free advertising for the

original work fan fiction. The problem arises when the creators of the fan fiction either engage in disparagement of the original work or they attempt to profit off the original work. And so there's this tension between the original producers of the content and the persons producing the fan fiction. And you see different producers original content coming down different places on this. Paramount Pictures has always been a supporter of

fan fiction with respected Star Trek series. You look at the other side and there are many producers of original content. J K rolling with the Harry Potter series in particular, has been fairly aggressive and attempt to stop it. Now, in that instance, there has been this adult or sexually explicit form of derivative works coming out of Harry Potter series that, as they said, disparaging, and original content owners

tend to be pretty harsh on that. But you see the original producers content on both sides of this fan fiction, and that is where the opaqueness comes. We're pretty clear what the law should be, but then we get into this range of quasi supporting it, quase I not supporting it, and it's hard to draw lines there. So then does it appear that Barlow and there are using the intellectual

property of Netflix without permission, constituting copyright infringement. So there's no doubt in my mind whatsoever that the plainist here Netflix have established on the face of the complaint of Prime, a fashion case of copyright infringement as well as trademark infringement. The question we should be asking, well, what's the defense that we're going to see from miss Barlow and miss bear and based on path cases in which fan fiction

has been charged with copyright infringement. We typically see two defenses, one that we had the implied authorization to do this, or to that our use of the original work was a fair use and therefore protected from copyright infringement. Go through what a fair use analysis might look like here.

So the fair use analysis and the context of fan fiction probably traces itself back to an old case involving Gone with the Wind, the epic book and motion picture, a true parody was done called The Wind Done Gone and The Wind Done Gone, took the story of Gone with the Wind and looked at it from the point of view of the slaves who were involved in that novel, and in a very real sense it was a social commentary.

And therefore the eleven circuit, when faced with a copyright infringement action against The Wind, Dungan held that it was a fair use, that it was a transformative work, which is the key for fair use analysis. It transformed the original work in such way that it contributed to societal good, essentially a commentary on the treatment of enslaved peoples during

the Civil War, and therefore it was allowed. So that is essentially the approach that has to be taken in these fan fiction cases with respect the fair used defense is the work sufficiently transformative that it accomplishes some sort of societal good is recognized in the Copyright Act, and I think you could be hard pressed to see that here. This is not a parody. This is very much taking advantage of the original Netflix television series Britain in attempting

to exploit it. It is very different from this word transformative works that have been approved by the courts in the past, and I think this will be a very hard road for the defendants to pursue a fair used defense here. I think it's far more likely that they're going to have to pursue some sort of implied license defense. So how would it applied license defense work? So you see the elements of the implied license defense in this case.

In the actual complaint, the lawyers for Netflix have anticipated that that's the way the defendants will attempt to go In defending this quote unquote unofficial musical of bridget It. They repeatedly point out that yes, there were discussion with Miss Barlow and Miss Bear about the fans fiction that they were producing, but in each instance they carefully preserve the right and saying we're not authorizing this, we're not going to do anything about it right now, And they

always stopped short. So they wanted a little bit of this frans fiction without it going to the point of displacing their potential marketplace. And that's the tension that I talked about before, that original producers of content have with producers of fan fiction. They want to have their cake

and eat it too. Now Here. I think Netflix made it clear throughout the discussions with Miss Barlow and Miss Bear that they were not authorized, and indeed, I assume that one of the things defendants will say as part of the defense is that, well, gosh, this has been going on for a year now and they haven't done anything, And that is sort of facially attractive, legally difficult to make defense because there is no obligation on the part of a copyright planiff to sue you at a specific time.

The mere fact that you wait six months the year to file the lawsuit does not really matter in this context, where you're constantly sending out signals we don't approve of this,

we don't authorize that. Which particularly problematic here is that the unofficial bridge and musical and the merchandise associated with came out about the same time that Netflix and the bridget and television people were thinking of moving in that direction, and therefore it was displacing a legitimate market opportunity for the copyright hold I know that a lot of these cases, or maybe even most of them, settle, but is there

any impetus for Netflix to settle here? Hard to see unless the defendants simply cave in and say we give up what do you want, which, by the way, is not a scenario that I would discount. I think their legal position is very difficult. Copyright infringement lawsuits are expensive because they require special counsel. On the other hand, if I'm Netflix, I'm hard pressed to see why I would

settle for anything less than a complete surrender. Their legal position is very strong and in my view, a pretty good case of willfulness on the part of the defense. In other wise, they commit willful copyright infringement, which would entitle, if found, the Netflix folks to recover their attorneys fees. So the plainists aren't really even going to be out their lawyers fees because those are gonna be paid for

by the defendants. Now, the one thing that could force a settlement here is if Netflix comes to the conclusion that Ms barlams Bear are for all practical purposes judgment proof um, in which case they won't be able to recover their attorneys fees and probably will one limit their own attorney's fees and and just settle with them going away and giving up on this project. The amount of

fan fiction out there is astounding and TikTok. I mean, that's how they got started on TikTok, and I saw that the author, the Bridgetain author Julia Quinn, in a statement said there's a difference between a TikTok composition and performing for commercial gain. So I guess once the money

starts rolling in, that's where the line is drawn. That's absolutely true to But here in particular, they not just moved from the TikTok around, but they were moving directly into a market that was targeted by Britain and Netflix. It is very common for movies and television shows in the current environment to become broadway shows. I mean, we see this all the time. Lion King is a great example of that. There's sort of this three sixty view, as dis thing would put it, of content, where you

repurpose it into different media. I mean Star Trek was originally television show was repurposed into the movies and became even bigger. And so the threat that was posed here by the defendants to Netflix was taking away one element of that three sixty view of entertainment content, i e. The opportunity to do Broadway musical as well as the merchandizing that comes from that. And that's that's why at bottom Netflix had to act. At this point they were

losing a critical market component if they didn't act. Netflix is also claiming trademark infringement. What is the trademark? The trademark is Britain, and the defendants have captioned their show that they put on at the Kennedy Center and planned put on the Royal Albert Hall in London later this year as the Unofficial Bridgetain Musical. So the Brilluton name, which is trademark, has just taken. Indeed, in the advertising they actually put after the word bridgertain the capital are

in a circle indicating it's a registered trademark. Not to them, but netflike was kind of shocking. Thus they acknowledge that they were taking a registered trademark. The argument that defense that they would make is actually a little bit better though than the copyright defense. They will say that by putting in front of the word Bridgeted the unofficial Bridgeted Musical, they were indicating the people that it had no association

or relationship with the Netflix bridget In television show. This is very common in trademark law. We see this all the time. The actual word usually uses unauthorized, and that may matter here. The fact that they went with the word unofficial instead of unauthorized may come back to haunt them. But trademark law is different than copyright law, and copyright laws intended to protect the creator of the original work.

Trademark laws intended to protect consumers against being misled as to what they're buying, and so there's a different standard here. And the question is will the people who bought tickets to the Unofficial bridge Of Musical understand that they were not buying something that was associated with the related to bridget and the television show. And if they can show that use of the word unofficial meant that people knew that it wasn't being put on by Netflix, then they

might have it out from the trademark cause of action. Interesting, it's sort of brazen. But you know what, they got famous with this, so that's a big step. No matter what happens, they got the Ramians, they move ahead with the Heck, there's no question that there's some talent here. Marlosba demonstrated the dack producing content that people are interested in, and perhaps they can parlay that into something in the future that does not involve taking the hard work of

copyright owners. The problem there are a lot of people out there who are capable of writing music and lyrics putting it to other work. The trouble is coming up with your own idea exactly and dilogue exactly. We'll see what happens with them and with the lawsuit. Thanks so much, Terry. As always, that's intellectual property litigator Terence Frost, a partner at Captain uten Rosenman. Hair Love is an animated short film about an African American dad who's attempting to style

his young daughter's hair for the first time. When the film won an Academy Award in filmmaker Matthew Cherry used his time to talk about new legislation known as the Crown Act. Hair in Love was done because we wanted to see more representation and animation. We wanted to normalize black hair. There's a very important issue that's out There's the Crown Act that stands for creating a respectful and

open world for natural hair. The law prohibiting discrimination against hairstyles and textures historically affiliated with race passed the US House in March, but the bill has not yet been considered by the Senate. Still, eighteen states have passed their own Crown Acts in the last three years, including some red state. California and New York were the first states to pass the measure only three years ago, and Massachusetts

became the latest state on July. Joining me is. Chris mar senior correspondent for Bloomberg Law, tell us a little about these black hair bias laws called Crown x sure. So these laws banned race related hair discrimination. So we're talking about bias in the workplace or in schools most

of the time against traditionally black hairstyles or textures. And so these are these are laws that forbid employers and or public schools from discriminating against things like dreadlocks and bantu knots and braids and and other hairstyles and textures that would be commonly worn by black students or black workers. So one of the co sponsors of the Massachusetts measure, Democrats, the state representative Brandy Fluker Oakley, called the law game

changer for black women. Can you explain what she meant? So, her comments and I've heard a lot of particularly black women make similar comments about these laws being passed in the States, point to this sort of pressure for for black workers and women in particular to do things like chemically straighten their hair or or otherwise alter their hair from its natural texture to look what some employers would

consider to be more professional. But it's you know, it's a it's a biased expectation, right that if you have naturally black hair, are naturally black hair texture, um to think of that as unprofessional. And so that's kind of the underlying bias that these laws are trying to root out, to say, you know, black workers and black students should be able to wear their hair and natural texture or or in these traditionally sort of protective hairstyles without facing

negative consequences at work or school. So does that mean that employers with let's say sales staff can't require employees to tie their hair back or you know, if they're working in a in a restaurant wear a hairnet. So the details of each state law vary somewhat, but in a lot of cases they do allow for health and safety related requirements such as tying the hair back or

wearing hairnet. Um. These protections are against really specifically race related hair policies um, and so if it's health and safety related or it or it's neutral and not race specific, then generally employers could still enforced hair policy is within their dress code. One employment lawyer I talked with gave the example of, you know, this doesn't mean you have to hire a person with blue hair, you know, because that's not related to race. Right? Is it mainly blue

states that are enacting these laws. So blue states have really led the charge. California and New York were the first to enact a version of the Crown Act back in twent nineteen, and so the majority of the states are those with Democratic majority legislatures, but we have begun to see some Republican majority legislatures get in on the Act as well. So uh Louisiana, for example, has a

new law that that just took effect August one. Tennessee and Alaska also have passed versions of this, although you know sometimes in a in a narrower way of the Alaska bill, which is awaiting the governor's signature, there would only deal with discrimination at school, not placed discrimination. And the House passed a national version of the Crown Act in March. So Chris tell us about the Crown Act

and how it came about. So, the Crown Act, the Crown stands for creating a respectful and open world for natural hair and and this is something that really a coalition of of advocacy groups came up with and and I've been pushing for in states and at the federal level, UM and and have and have had, you know, pretty pretty good success in my opinion. You know, within just a matter of three years now we've got eighteen states that have adopted this. Alaska will make nineteen if if

the governor signs the bill. There is there a real push to get this through in the Senate because I haven't heard much about it, right, And I'll confess I don't cover Congress closely. I focus more on the states. UM. I talked for the colleague of mine while I was working on this, and who does cover Congress and her sense was that it's it's just sort of on ice. You know, there's so many other priorities in the Senate. No, it's not easy to get anything through the Senate these days. Now,

what about the possible impact on employers? Are they expected to see more lawsuits than based on this right? So, so it does create another category of potential discrimination lawsuits against employers. Um well, I should say, in state laws vary. In some states, employees could bring a lawsuit. In other states, they would bring a complaint through the state labor commissioner or some other state agency, which would then, you know,

handle some sort of resolution process. But yes, it does create the potential for more discrimination claims against employers, and so you know, they will need to review their policies and and think about how they want to train their their managers who handle hiring and firing discipline. I want to turn to another issue involving labor law, and that's non competes. Businesses often require employees to sign non compete agreements which prevent them from leaving and going to a competitor.

And you write about a trend in states to ban non competes for lower and middle income employees and hourly workers. D C has just passed a law which is going to go into effect on October one. Tell us about that, right, So, the District of Columbia has has passed a law now that will ban almost all employee noncompete contracts for workers who make less than a hundred and fifty thousand dollars

per year. UH. And there are a few narrow exceptions in there, for example, relates to the broadcast industry, but by and large that means employers won't be able to have their workers sign a contract saying they can't go to work for a competing company unless they make more and a hundred and fifty thousand dollars a year. And that's that's kind of the starting threshold, and it will be increased each year based on inflation after the law

takes effect. Do you know how they reached that, because that is pretty substantial, right, It's a it's a higher figure than most states have gone with. It may be the highest. I think Washington State went higher for independent

contractors who are not considered employees. But other than that, I do believe the hundred and fifty thousand is the highest threshold UH that any state has set I'm not sure how they came up with that number, but I think it was intended as a little bit of a compromise because the Council originally passed the law back at the end of and it never took effect. They delayed

it sort of indefinitely. But but that law would have banned virtually all noncompete regardless of the employee's income level. Explain the trend in these laws, why states are passing them? Sure? So, I guess the theory with with having employees signed noncompete is that the employer is trying to protect uh, some sort of trade secret or or confidential company information. They don't want an employee to leave the company and go work for a competitor and take that sort of sensitive

competitive information to the competing company. You know. Within the last few years, it's become sort of better understood that a lot of the workers being asked to sign these noncompetes really don't have access to trade secrets or or

confidential information. There were reports going around a few years ago, for example, that, uh, you know, sandwich chains like Jimmy John's, we're asking their you know, their restaurant workers to sign these noncompete and you know, you kind of scratch your head and think, well, what's what's the reason for that, Although companies still sometimes argue, well, we we invested money in in training the employees, and so we don't want them to take that those sort of skills and training

that we've spent money on and take it to another company. Um. But so so there's kind of a movement amongst states. It's a I think eleven at least eleven states now plus the District of Columbia have passed law that bans noncompetes based on some income level. And those originally started with the idea of protecting low income workers. But of course, you know, we can see with DC that has you know,

moved up beyond just low income workers. Uh. And now and with d C and also Colorado, which passed new law this year, the thinking is more in line with we're only going to allow noncompetes for highly compensated employees. Colorado set the threshold at a hundred thousand, and now DC has said a fifty thousand. Thanks so much, Chris. That's Chris Mars, senior correspondent for Bloomberg Law. And that's

it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast slash Law, And remember to tune into The Bloomberg Law Show every week night at ten BM Wall Street Time. I'm June Grossow, and you're listening to Bloomberg