Since the start of the Covid-19 pandemic, millions have turned to TikTok for entertainment.[1] Inspired by Disney/Pixar’s Ratatouille, theater fans developed the “Ratatousical”—including songs, choreography, scenic design, and branding—for an unofficial musical based on the animated film.[2] As excitement around the project grew, Disney gave its blessing for a Broadway-caliber production and agreed to a three-night-only benefit concert, which ultimately raised two million dollars for the Actors Fund.[3] This production was the natural end point for the musical’s short-lived creative journey; as always intended, there are no “Ratatousical” recordings on Spotify, nor are there plans for a stage production.[4] Two years later, the theater world had moved on. So how did another TikTok darling, The Unofficial Bridgerton Musical, become a legal headache?
In January 2021, soon after Netlfix’s release of Bridgerton in December 2020, composer Abigail Barlow posted a song on TikTok inspired by the massive hit.[5] Netflix initially praised Barlow’s viral work.[6] Teaming up with composer Emily Bear, the duo (“Barlow & Bear”) then wrote fifteen songs based on Bridgerton’s plot, characters, scenes, and dialogue and recorded a concept album for their musical.[7]
The Unofficial Bridgerton Musical went on to win the 2022 Grammy Award for Best Musical Theater Album.[8] This left some observers scratching their heads, including at least one law professor who analyzed the situation in terms of the first factor of copyright fair use: purpose and character.[9] While a musical based on a TV show may “lean[] towards a derivative work because it takes the content and recasts it in some new way,”[10] Netflix had the exclusive right to create or authorize derivative works based on Bridgerton.[11] To clear the bar as a transformative work and therefore avoid licensing requirements, Barlow & Bear needed to show that their work was “so new and so different” from the original source material that it qualified for fair use.[12] The musical’s direct use of show dialogue, however, undermined this argument because sampling is not considered fair use, placing Barlow & Bear in risky territory ahead of Netflix’s lawsuit.[13]
On July 26, 2022, Barlow & Bear staged The Unofficial Bridgerton Musical at the Kennedy Center,[14] where tickets for the sold-out event ranged from $29 to $149 each.[15] Netflix filed a complaint three days later, and a similar show scheduled for September 2022 in London was canceled.[16] According to the complaint, Netflix had repeatedly told Barlow & Bear that live performances were not authorized and would be copyright infringement unless they negotiated a license.[17] Barlow & Bear nevertheless had refused to acquiesce and the Kennedy Center performance went on as scheduled.[18]
Legal debates ensued, with some scholars worried that a ruling in this case could set a precedent that would limit fan fiction’s fair use protections,[19] calling the case “[b]ad news for fan creators.”[20] While fan fiction—“the creation of stories based upon works of popular culture such as television shows, films, and books”[21]—is often transformative in nature, it is inaccurate to suggest that all fan fiction, is fair use.[22] A broad ruling limiting transformative use considerations could put creators of fan fiction at risk, open the door to heavier surveillance of the fan fiction community, and attract lawsuits from litigious rights holders.[23] Others, however, argued that the lawsuit was good for fan fiction because it “leveled the playing field for other content creators[] by preventing Barlow & Bear from becoming the de facto or ‘official unofficial’ source of Bridgerton fan fiction.”[24]
In addition to these character of use concerns, The Unofficial Bridgerton Musical’s legal problems were compounded by Barlow & Bear’s expansion into commercial use with their lucrative Kennedy Center performance. Fan fiction communities generally discourage commercializing fan work, a tactic which helps them avoid unnecessary litigation and “heavy-handed enforcement.”[25] While Barlow & Bear could play around on TikTok without permission, once they sold tickets to their show, they had to “worry about the property owner.”[26]
Based on The Unofficial Bridgerton Musical’s use of direct source material and commercialization as compared to fan fiction more generally, it may have been unlikely that fan fiction fair use protections would get caught up in a ruling here. Regardless, Netflix dismissed the lawsuit with prejudice in September 2022.[27] The legal questions about fan content and fair use raised by the events surrounding the musical are put to rest for now, but observers should expect to see more litigation in this space given the popularity and arguable success of unsanctioned TikTok musicals like the Ratatousical and The Unofficial Bridgerton Musical. After all, there are still strategic business issues for rightsholders to consider as they balance intellectual property protection with maintaining positive sentiment among a fandom. Barlow & Bear put their professional reputation and the fan fiction community as risk when they performed their unlicensed and unauthorized musical at the Kennedy Center. Maybe it is time to retire the phrase: “it’s better to ask for forgiveness than permission.”
[1] See Cynthia Littleton, Why TikTok’s Popularity Exploded During the Pandemic, Variety (Jan. 27, 2021, 1:26 PM), https://variety.com/2021/digital/news/tiktok-popularity-covid-1234893740/.
[2] See Eliana Dockterman, How the Ratatouille Musical Went from TikTok Sensation to All-Star Broadway Production, Time (Dec. 31, 2020, 10:11 AM), https://time.com/5925560/ratatouille-tiktok-musical/.
[3] Helen Shaw, How Ratatouille: The TikTok Musical Came to Be (and Yes, Disney’s Okay with It), Vulture (Dec. 31, 2020), https://www.vulture.com/2020/12/how-ratatouille-the-tiktok-musical-came-to-be.html.
[4] Id.
[5] See Paige V. Gagliardi, TikTok the Musical: Copyright Issues Raised by the “Ratatouille” Musical, 17 Wash. J.L., Tech. & Arts 147, 160 (2022) (citing Ellise Shafer, ‘Bridgerton: The Musical’ Blew Up on TikTok. Could Broadway Be Next?, Variety (Jan. 29, 2021, 9:00 AM), https://variety.com/2021/music/news/bridgerton-the-musical-tiktok-broadwayabigail-barlow-emily-bear-1234893087/) (discussing background of The Unofficial Bridgerton Musical).
[6] Netflix (@Netflix), Twitter (Jan. 13, 2021, 12:32 PM), https://twitter.com/netflix/status/1349409098652024835.
[7] See Gagliardi, supra note 6.
[8] See ICYMI, How Is TikTok’s Grammy-Winning Bridgerton Musical Legal?, Slate, (Oct. 26, 2022, 10:53 PM), https://slate.com/podcasts/icymi/2022/04/unofficial-bridgerton-musical-grammys-win-legal-problems.
[9] Id.
[10] Id.
[11] Complaint at 1, 4, Netflix Worldwide Entertainment, LLC v. Barlow, No. 1:22-cv-02247 (D.D.C. 2022).
[12] ICYMI, supra note 9.
[13] Id.
[14] Complaint, supra note 12; Emlyn Travis, Netflix Drops Lawsuit Against The Unofficial Bridgerton Musical as Show’s U.K. Performances Are Canceled, Entertainment Weekly (Sept. 24, 2022, 6:21 PM), https://ew.com/tv/netflix-drops-lawsuit-against-unofficial-bridgerton-musical/.
[15] Gene Maddaus, Netflix Settles Copyright Lawsuit Over ‘Unofficial Bridgerton Musical,’ Variety (Sept. 23, 2022, 6:08 PM), https://variety.com/2022/music/news/netflix-bridgerton-musical-lawsuit-dropped-barlow-bear-1235382454/.
[16] Id.; see also Complaint, supra note 12, at 1, 4-5.
[17] Complaint, supra note 12, at 4-5.
[18] Id. at 5.
[19] See Amanda Silberling, Netflix’s Lawsuit Against the ‘Bridgerton Musical’ Could Change Online Fandom, TechCrunch (Aug. 3, 2022), https://techcrunch.com/2022/08/03/unofficial-bridgerton-musical-lawsuit-netflix-barlow-bear/.
[20] Laura Wheatman Hill, Why Bridgerton Fans Turned Against the Bridgerton Musical, Slate (Aug. 9, 2022, 2:19 PM), https://slate.com/culture/2022/08/bridgerton-musical-lawsuit-netflix-tiktok-barlow-bear.html.
[21] Brittany Johnson, Note, Live Long and Prosper: How the Persistent and Increasing Popularity of Fan Fiction Requires a New Solution in Copyright Law, 100 Minn. L. Rev. 1645, 1649 (2016) (discussing the commonly used definition of fan fiction).
[22] Id. at 1663.
[23] See Elizabeth Minkel, The Online Free Speech Debate is Raging in Fan Fiction, Too, The Verge (Nov. 8, 2018), https://www.theverge.com/2018/11/8/18072622/fanfic-ao3-free-speech-censorship-fandom.
[24] Aaron Moss, Why Netflix’s “Bridgerton” Lawsuit Is Good for Fan Fiction, Copyright Lately (Aug. 2, 2022), https://copyrightlately.com/why-netflixs-bridgerton-lawsuit-is-good-for-fan-fiction/.
[25] Id.
[26] See Hill, supra note 21.
[27] Notice of Voluntary Dismissal, Netflix Worldwide Entertainment, LLC v. Barlow, No. 1:22-cv-02247 (D.D.C. 2022).