At what point does fan fiction cross the line into copyright infringement?
You might’ve seen in the news that Netflix is suing “The Unofficial Bridgerton Musical” creators Barlow & Bear for copyright infringement.
Short summary: Two women (Barlow & Bear) went viral on TikTok for their musical adaptation of Bridgerton, and they went on to win a Grammy for their work.
Apparently, they had been in contact with Netflix and established as long as their work was for non-profit, they could continue with their musical adaptation.
However, a few weeks ago, B&B staffed a musical production and sold out an international tour of their “Unofficial Bridgerton Musical” (definitely for a profit) after turning down Netflix’s offer for a non-profit licensing deal.
B&B did exactly what Netflix said they could NOT do, and Netflix replied with a big, “Oh, no, you don’t…” and has issued a copyright and trademark infringement lawsuit on the indie musical composers.
The outcome of the Bridgerton lawsuit can determine how fan fiction, fan art, and derivative works are published.
This entire situation raises an interesting thought experiment for what constitutes fair use derivative work and what crosses the line into copyright infringement.
But first, let’s get into some details about copyright, derivative work, and fair use
Disclaimer: I’m not a lawyer; this is not legal advice, just my opinion.
So, copyright laws protect the creator of the work as soon as anything is publicly available. That means that Julia Quinn’s copyright is protected and the main reason why Netflix purchased the rights to adapt her books into a Netflix series.
Netflix owns the copyright to the original work and all derivatives of said work.
However, some derivative work falls under Fair Use, which means that it is unique enough to become a stand-alone work separate from the original and, therefore, falls under the creator’s copyright.
It is said that B&B are confident that their musical falls under fair use and, therefore, does not need to be licensed.
What are the four factors of Fair Use claimed under the Bridgerton Lawsuit?
1. The purpose of the use and if it is transformative from the original – is it commercial or for nonprofit educational purpose?
2. The nature of the copyrighted work
If you’re using factual work in the public domain, it’s more likely to be considered fair use than fictional works.
3. The amount of the portion used in relation to the copyrighted work as a whole
4. Does your version harm the value or potential market of the copyrighted work
You can see how these four factors of fair use are completely subject to interpretation and could be argued either way.
This will be an interesting intellectual property/copyright infringement case that will affect fan fiction and writers, so I’ll be following it closely and will report on the outcome when it’s all over.
How does this affect you as a writer?
The outcome of this lawsuit WILL affect everyone in this space — creators of original works, whether they be derivative and fair use or original original.
It will be interesting to see how a huge content producer like Netflix defends their copyright, and I’m interested to hear B&B’s justification for why they feel the musical falls under fair use.
Also, as writers, we want to ensure we don’t infringe on anyone’s copyright and that nobody else infringes on OUR copyright.
If someone wants to take your story and turn it into something else, you deserve to be paid for others adapting your work.
If someone wants to read your book aloud on YouTube, they need your permission (or your publisher’s permission) before doing so.
Be sure to defend your copyright if you feel people are infringing upon your hard work.
Alternatively, if you want to retell an existing story, you can skip the fair use debacle and adapt works already in the public domain (see Project Gutenberg linked below).
What are your thoughts?
Do you think B&B are infringing on Netflix’s copyright and trademark with their musical?
What would you do if you found your book turned into a musical adaptation?
What crosses the line for you between free promotion by a fan and exploitation of your work?
Reply to this email and let me know your thoughts.
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