Under longstanding US copyright law, the holder of an enforceable copyright is accorded the exclusive right “to prepare derivative works based upon the copyrighted work.” A “derivative work” is defined 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.”

One gift the Internet has given us is the concept of “fan-generated content”—i.e., devotees of a particular song, movie or tv show creating their own works directly based on an another’s work that they enjoy. Indeed, YouTube is filled with fan-created content of this kind, such as movie scenes set to different music, or even original movies featuring a cast of characters and plot lines taken from another’s published works. Obviously, these can be seen as “derivative works” under copyright law. For the most part, however, copyright holders of the original works do not seem to be making attempts to shut down such content—perhaps because these fan-generated works are essentially free advertising that generates even more interest in the original works. From the perspective of the fans who create this content, they no doubt see their projects as being covered by the “fair use” doctrine of copyright law, which insulates from liability some uses of copyrighted material based on a number of factors. One major consideration here is that fan-generated content is not a big moneymaker—and so the fans are not diverting revenue from the original copyright holders, but are instead just having fun making tributes to their favorite works.

A recent high-profile lawsuit over fan-generated content, however, illustrates how these lines can be crossed. Netflix is the owner of a very popular series known as “Bridgerton.” The show is a period-piece set in the 19th Century, and as Netflix claims, “Bridgerton was a hit … [b]y January 2021, Bridgerton had been watched by 82 million households around the world.” As Netflix also alleges:

After Bridgerton was first released in December 2020, [defendants] Barlow & Bear (along with countless other fans inspired by the series) started posting about the series to TikTok, including creating musical compositions based on characters, scenes, dialogue, and plot points from the series. When asked directly, Netflix told Barlow & Bear, time and time again, that such works were not authorized. Barlow & Bear chose to move forward with that knowledge and release an album recording, which they titled “The Unofficial Bridgerton Musical.”

The album was successful—highly successful—winning the 2022 Grammy for Best Musical Theater Album. As Netflix further alleges:

On July 26, 2022, over Netflix’s repeated objections, Barlow & Bear staged a massive, for-profit stage show—entitled “The Unofficial Bridgerton Musical Album Live in Concert”—to a sold-out audience at the Kennedy Center, with tickets ranging up to $149 each and VIP packages. The live show featured over a dozen songs that copied verbatim dialogue, character traits and expression, and other elements from Bridgerton the series. It included dramatic portrayals of Bridgerton characters by Broadway actors, emoting through the performance of the songs that comprise the “musical.”

Barlow & Bear also announced they intend to stage yet another performance of their unauthorized derivative works at the Royal Albert Hall in London, making this a world tour. Barlow & Bear even promoted their own line of Bridgerton-themed merchandise.

Netflix clearly has had enough of the defendants’ success, and is seeking to recover what it sees as lost revenue from the defendants’ Bridgerton-themed works. Its complaint brings claims for copyright and trademark infringement, and false designation of origin under the Lanham Act. Legal rulings in the case could have important implications for the ever-growing universe of fan-generated content.