From "Netflix Sues ‘Unofficial Bridgerton Musical’ Creators Days After Sold-Out Live Show/The streamer says it told Abigail Barlow & Emily Bear 'time and time again" that the Grammy-winning musical was not authorized'" (Billboard).
I didn't watch the Netflix show. I had no interest at all. But I did look up the "Unofficial Bridgerton Musical" album. I can understand how Netflix is aggrieved that its words have been lifted, but I think the cooler thing to do would have been to embrace Barlow and Bear and to be grateful for their contribution to the cultural clout of the the show. Barlow and Bear showed appreciation and did something that added dimension and color to the fading TV series. Netflix behaved in an old-timey corporate fashion and missed what was for them an opportunity, the big dummies.
Here's the album on Spotify:
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How did the producers of such a play imagine that they would NOT be sued successfully for such a blatant copyright infringement?
Didn't they ever even consult a copyright lawyer? If so, then what did the lawyer advise them?
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That said, I will say also that many copyright objections are counter-productive.
I write a blog about the 1987 movie Dirty Dancing. I post a lot of YouTube videos, some of which YouTube eventually removes, apparently because of copyright objections.
Often these are videoclips from the "extras" features of CDs of the movie. For example, the CD includes a videoclip of bloopers. Someone will put that videoclip onto YouTube, and then I will embed it on my blog. Then eventually, however, YouTube will remove that videoclip, and so the videoclip no longer will play on my blog.
I do understand that that posting on YouTube was a copyright infringement, and I do understand that those CDs still are being sold retail. However, I think also that making YouTube remove such videoclips is counter-productive for the people who still make money from the movie or from the CDs.
One reason why that 1987 movie and the subsequent CDs continue to earn money in 2022 is that the public's interest is maintained by YouTube videos, blog articles, etc.
Dave. Not sure that is true about Netflix spending on content. I read a few months ago that one of their biggest problems now is they are a small fry in streaming. They compete with Amazon Prime and Hulu (Disney), both of whom have much larger budgets because other business units can subsidize investments.
Personally I find Netflix programming lacking now but have fond memories of eagerly waiting for our next disk in the mail. The anticipation added to the experience. We got through both Buffy and Battlestar Galactica that way.
Netflix spends more on content then many nations do on defense.
The smart thing to do at this point is to license the content to these two women and collect royalities.
"How did the producers of such a play imagine that they would NOT be sued successfully for such a blatant copyright infringement?"
I can see how, when they started, on TikTok, they just didn't worry about it. They were so small, and one thing led to another. But you'd think there's be a negotiation before they sold $149 tickets to a show at the Kennedy Center. Maybe they assumed Netflix would appreciate the publicity and the coolness factor and let them operate independently. You don't file every claim you can.
Anyway, the legal argument, once you are sued, is "fair use." I didn't quote this from the article, but I will now:
"Fan fiction is a legal gray area, and courts have split on whether such projects are kosher under intellectual property laws. Non-commercial projects and parodies are often ruled a legal “fair use” of the underlying material, but lucrative adaptations can be ruled a “derivative work” that needed a license. In this week’s lawsuit, Netflix says the Unofficial Bridgerton Musical was clearly the latter: “Barlow & Bear’s conduct began on social media, but stretches ‘fan fiction’ well past its breaking point. It is blatant infringement of intellectual property rights. The copyright and trademark laws do not allow Barlow & Bear to appropriate others’ creative work and goodwill to benefit themselves.”"
The clips you are talking about are taken down by YouTube because that's YouTube's approach. If YouTube wanted to support some kinds of things that are defensible as fair use (such as short clips from movies that someone like you wants to write about), then there might be more lawsuits sharpening the meaning of fair use. I rely on fair use when I quote text from copyrighted sources, which I do every day.
You are the lawyer here, Ann, but it seems to me that the songs published freely on Tic Toc were composed long ago, had many different composers, and are no longer subject to protection under intellectual property laws.
I was reading about "Steal Away" a Gospel song written by a slave prior to the end of the Civil War and sang by runaways using the Underground Railroad.
Steal away, steal away, steal away to Jesus!
Steal away, steal away home, I hain't got long to stay here.
In this instance, the phrase "steal away" thus meant absconding as in escaping the yoke of bondage.
With all of this "stealing" over time, we waited for popular recordings by the likes of Pat Boone and Nat King Cole, and then another song named "Steal Away" was used in a 1980 hit by Robbie Dupree which made it to #6 on Billboard.
Why don't we steal away into the night? I know it ain't right.
Unless Barlow and Bear shared in Kennedy Center seat income, and unless their album was really, really successful, that will generate substantial royalties from future plays, they are doing this stuff because they like to perform.
So Bridgerton Musical is unlikely to get blood from these turnips. Suing big-pockets Grammy might have been a better choice.
Has Netflix gone from being the only streaming service, or the only one anyone mentioned, to being a business failure, killed by competition, in about ten years? Did it ever actually make money? Is this like the early days of movie studios/ production companies, going down from maybe a hundred to a few, or the dot.com days of about 1999-2000, the "boiling down" of companies? I remember dot.com companies being compared to early railroads. There were actually quite a few companies that were supposedly in the business of running trains; some were really land acquisition companies, accumulating land from governments and elsewhere for re-sale; some were a front for the construction company that got paid for laying track, whether the route made sense or not; some never ran a train; some ran a few trains with enough success that the actual track and rolling stock was of some value.
"it seems to me that the songs published freely on Tic Toc were composed long ago, had many different composers, and are no longer subject to protection under intellectual property laws"
I'm not sure what you're talking about. There are millions of things published on TikTok, including very recent recordings. I presume some of it is streamed by TikTok paying royalties and some of it is people playing music they want to play, such as the video I linked to recently of a guy who turned "I'm too sexy for my shirt" into a sad song. "I'm too sexy" is under copyright. Singing it a different way doesn't make it free to use.
Clearly you can't sell tickets and make money for something like this. Would it make a difference if they gave the performance for free? If not, people I went to college with many years ago could be in real trouble with Stephen Sondheim's estate.
Apparently gadfly has never heard of the Congressional series of Mickey Mouse Perpetual Copyright Acts.
My assumption would be that Netflix didn't start with litigation, but rather that the company tried to negotiate with them and was rebuffed.
"Fair use" rarely includes taking someone else's copyrighted or owned material and turning it into a direct commercial venture for yourself. Selling tickets to a show at Kennedy Center is a lot different than a short video clip on youtube used in connection with commentary or a written excerpt on a blog that earns ad money through clicks or an Amazon affiliation. They stole property and now try to shame Netflix because they are smaller -- and are just girls, after all.
They shoulda got permission before rather than ask for forgiveness after. Now they'll end up sharing the profits, as they would have done had they been honest and obtained the rights before starting their own commercial venture, only now with lots of legal fees before a deal gets struck.
Fair use is hopeless. The actual "fair users" are entirely outgunned legally by giant corporations. No one can define what fair use is, only cite examples like 2 Live Crew. No one can say whether a collage is a derivative work (derivative of a dozen random photographers, any of whom would be free to assert their supposed rights over a monstrously large period of time). No one can say how much of a song can be played in an instructional video (and again any company owning rights to any included song might challenge). No one can say what is transformational, only "try it and see if you wind up in court."
The big companies like this framework. The creators and instructors say it hurts creativity and instruction, but no one is going to fix anything.
Would it make a difference if they gave the performance for free?
I Am Not A Lawyer and our host is, but from my days as an editor my understanding of copyright law is that such use can still infringe because it can damage the value of the asset.
Is it a "fading tv series?" There have been 2 seasons and as far as I can tell the second was more popular than the first.
I have actually read the complaint (all the below is from the complaint, I am not opining that any of it will ultimately be proven or disproven):
The two women formed an LLC, are planning a second show at the Royal Albert Hall in London and a series of performances throughout the world, and are selling "Bridgerton"-branded merchandise. Netflix itself has produced a live Bridgerton event, meaning the B&B show is directly competitive with the Netflix live event. Netflix has also released a soundtrack, so the B&B music is in direct competition.
When Netflix contacted the two women and made it clear that Netflix was not authorizing their performance on Tik Tok, the women led Netflix to believe they would not be releasing the music commercially.
Netflix, upon finding out about the planned live show and album release, informed them that they did not have authorization and their conduct would constitute willful infringement. Netflix offered to negotiate a license that would have permitted the women to do everything that they did do, which Barlow & Bear refused to do. Despite this, the women advertised their show as being authorized by Netflix - this led to an additional count for false designation of origin under the Lanham Act.
This is not quite the big, bad corporation picking on the poor little ladies who meant no harm.
I'm not clear on why it would be "cool" for a company to sit back and do nothing as people steal and monetize its IP. Copyright laws are for the ultimate benefit of the creative community.
So mama don’t take my Kodachrome away
Been there. Done that.
https://patrickferreelaw.com/star-trek-v-axanar-copyright-infringement-or-permissible-fan-work/
Oddly, as usual, I know one of the choreographers who created parts of the Thriller dance scenes. They had pegs rise out of the floor for the dancers to slide back into, into holes in their shoes, in order to support them as they bent so far backward.
It is his intellectual property. I'm not a fan of stealing intellectual property. I can't imagine a justification for it, given our already lenient laws about satire and citation. Wouldn't you object if someone just copied this whole blog and printed it as their own?
Don't poke the bear.
"I can understand how Netflix is aggrieved that its words have been lifted, but I think the cooler thing to do would have been to embrace Barlow and Bear and to be grateful for their contribution to the cultural clout of the the show."
If I break into your house to clean your living room, does this become an allowable invasion? Or do you retain choice and power over your own property?
Would it make a difference if they gave the performance for free?
Fair use is determined by looking to four factors:
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. The nature of the copyrighted work (more likely to find fair use where the work is primarily factual rather than fictional);
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for, or value of, the copyrighted work
So if the performance was given for free, it could still have an effect on the potential market for Netflix's planned live performances. Very fact-specific, and hard to predict in advance.
An interesting case that may have some similarity is Anderson v. Stallone (1989 case in California). Anderson wrote a spec script (essentially, fan fiction) based on the Rocky franchise and, unsolicited, sent it to MGM, who praised it and showed interest, but ultimately did not pay him. He sued for copyright infringement when Rocky IV came out, and the court granted Stallone summary judgment on the grounds that Anderson's script was itself an infringing derivative work of the first three Rocky movies. It held that the Rocky characters were sufficiently well-defined as to merit copyright protection. As the Anderson script was derivative of these characters, it was the exclusive privilege of the original copyright owner, Stallone.
Wow. Mike Sylwester really does run a blog about the movie, Dirty Dancing.
I can understand how Netflix is aggrieved that its words have been lifted, but I think the cooler thing to do would have been to embrace Barlow and Bear and to be grateful for their contribution to the cultural clout of the the show.
You are certainly allowed to think that.
However, the whole point of being the "Copyright owner" is that YOU have the RIGHT to decide who can and can't COPY your work.
And since Netflix is the copyright owner in this case, the courts should support their choice, even though it's not the choice you would make
Personally, I would expect Barlow and Bear to offer Netflix a reasonable royalty payment for the use of their copyrighted material. Like 10%+
If they offered and Netflix refused, bad on Netflix.
If they didn't offer, bad on them
Netflix, upon finding out about the planned live show and album release, informed them that they did not have authorization and their conduct would constitute willful infringement. Netflix offered to negotiate a license that would have permitted the women to do everything that they did do, which Barlow & Bear refused to do. Despite this, the women advertised their show as being authorized by Netflix - this led to an additional count for false designation of origin under the Lanham Act.
If the bolded part is correct, and the "refused" was not "Netflix wanted 95%, and we won't pay that much", then Netflix deserves to get to take them from everything they own
The Bridgerton series is based on a book series, so Netflix would have paid the author and perhaps the publisher for the rights to the characters for various productions. It is my understanding that if you don't protect your copyright, you lose it.
It wouldn't be "cool" to let someone else create a musical based on the work your company, and the author of the characters, created. They don't know how big it's going to get. What if it ends up on Broadway, and they haven't yet done anything to protect their copyright? That would be a lot of money going to someone else based on their work.
Maybe they assumed Netflix would appreciate the publicity and the coolness factor and let them operate independently. You don't file every claim you can.
Aren't trademark owners obliged to file a claim, if only to defend their ownership? If they don't, they risk losing it.
As a side note: YouTube is horrible about letting IP owners run roughshod over Fair Use claims. Rick Beato, a respected music producer, has had his videos demonitized and pulled by YouTube anytime he discusses an artist or a song (he'll play a bit of the song, or play the melody, stop it, and dive deep into a discussion of the chords and melody).
Several groups have the reputation of being "blockers," and operate so stringently that they discourage YouTubers from discussing (and thereby promoting) their music.
I didn't watch the Netflix show. I had no interest at all.
Bridgerton is exquisite and hilarious.
There is no "cooler" thing than to defend intellectual property against infringement.
I guess legal types make the occasional argument based purely on emotion.
Brian/Traci,
I disagree--(1) there are probably things that are inherently cooler anyway, but more importantly (2) after 17, or 34 at the very most, years of state enforced Monopoly... that's it.
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