How Is TikTok’s Grammy-Winning Bridgerton Musical Legal?
S1: A year ago when I asked the Internet, What if Bridgerton was a musical? I could not have imagined we would be holding a Grammy in our hands.
S2: Hi, I’m Rachel Hampton.
S3: And I’m Daniel Shrader, sitting in for Madison, Malone Kircher. And you’re listening to. I see. Why am I?
S2: In Case You Missed the.
S3: Slate’s podcast about Internet culture.
S2: And unfortunately for Madison, because she’s not here. We’re talking about one of her favorite topics, which is Martha Stewart.
S3: For Madison, she really had a great deep dive into Martha’s content back on Christmas Day on our show. So if you missed that, definitely go check it out. But the big news that she missed today is, Rachel, Martha Stewart’s cat is dead.
S2: Got to say, I didn’t know about this until one of y’all brought it up. And I was like, why is why what?
S3: Well, I mean, it normally wouldn’t really be news that a celebrity’s pet has died because pets die. That’s just how it works. But it was actually the very jarring way in which Martha shared this with us that really got us all talking about it. So on Instagram and she has two Instagram accounts, you need to make sure to choose her personal one, not her professional one. And her private handle is Martha Stewart, 48. So if you wanna check it out, go there. But so this week, she posted on her Instagram a photo of three men digging a hole. Because, I mean, that’s the photo I would post if I were euthanizing a pet. And with it, she posted the caption Burying the beautiful and unusual Princess Penny. The four dogs mistook her for an interloper and killed her defenseless little self. I will miss her very badly. R.I.P. Buddy.
S2: I have a lot of questions. A unusual bee mistook her for an interloper. Have these four dogs killed other things? See, how has this not happened before? I’m really what happened this time.
S3: And why post the photo of the hole being dug?
S2: What else are you going to post?
S3: A photo of the actual cat that I’m saying goodbye to?
S2: I mean, I just feel like people might mistake that as just usual cat content when perhaps she wants to tell everyone that, in fact, there is a grave being dug. And she did let us know. You knew as soon as you looked at that photo that something bad had happened. So great communication, Martha.
S3: Right. We need to have some grave concerns.
S2: Mm hmm. Mm hmm. So many concerns. That is all the time we have today for grave concerns, because we have. We have an unofficial musical to get into because somehow, some way, the underdog, the scrappy little fighter, the unofficial Bridgerton musical that started on TikTok, won a Grammy on Sunday night. Later in the show, we’ll be talking with the University of Colorado law professor Kristelia Garcia about how the unofficial Bridgerton musical can exist. What it means now that it’s won a Grammy and how exactly fan works fit into the copyright system.
S3: But first, how did this musical come to be, and why is TikTok so good at creating musicals at all? More on that after the break.
S2: And we’re back at another award show. This time there was no slap, or at least I haven’t heard about it yet. So there currently is no slap and I don’t wish to hear about any other thing. To the contrary.
S3: I think that even if something happened, we wouldn’t have heard about it because who watches the Grammys?
S2: That’s a good question. We do know who the people throwing the Grammys are watching, which is the Internet.
S3: Specifically TikTok stars as a great piece from Slate points out. We’ll link it in the show notes. The Grammys this past Sunday owe a lot to tick tock this year. The best new artist category is full of people whose music has blown up on Tik-Tok. You’ve got Saweetie, Baby Keem and of course, last year’s dominant teen force, Olivia Rodrigo, to name a few.
S2: Rodrigo took home three Grammys, which honestly less than I expected. But she took home best new artist, best pop vocal album and best pop solo performance for driver’s license, which means that we can all stop singing that song. Please, for the love of God, I just got it out of my head.
S3: I mean, hey, I’m happy for her as the top streamed artist of my Spotify 2021. Good for her.
S2: I don’t know what that says about you, but we will talk about that more after the show. But we’re actually here to talk about the wildest one of them all, not the most expected one. The musical duo Abigail Barlow and Emily Bear received a Grammy for Best Musical Theater album for the unofficial Bridgerton Musical. If you don’t know how wild that sentences, here’s a little snippet from Barlow’s acceptance speech.
S1: A year ago when I asked the Internet, What if Bridgerton was a musical? I could not have imagined we would be holding a Grammy in our hands. We want to thank everyone on the Internet who has watched us create this album from the ground up. We share this with you. You are just as much as part of this project as we are. I want to.
S2: Thank my amazing and that’s not even some typical acceptance speech award show bullshit that is objectively true, which is perhaps why this was such a surprise.
S3: The win was a surprise for a few reasons. The unofficial Bridgerton musical not only won despite never actually being staged in real life ever, but it also beat out musical theater giants like Stephen Schwartz and Andrew Lloyd Webber. But perhaps most surprising is that the musical began and was composed on Tik-Tok.
S2: But before we get into that, we do have to give you a little background on Bridgerton apologies if you spent any time on the Internet because you already know everything about Bridgerton, including the best sex scenes. Bridgerton is of Regency period drama from Shonda, Lynn and Netflix. It stars a family of eight children, all very helpfully named in alphabetical order. The first season specifically is about the oldest daughter, Daphne, who is trying to find a husband. And I mean, who among us is not trying to find a husband?
S3: So, yeah, it was a hit show that everybody loved. I know that you watch both seasons and you talked about it on a recent episode of The Waves.
S2: I did, indeed, where I actually disclosed that I only watched half of the first season because I kind of thought it sucked, but the second season is a lot better. Can confirm.
S3: That’s good to know because I didn’t know bridgerton about the second season.
S2: Okay, well, we can all go home now before we discuss why exactly bridgerton just made such fertile ground for a musical.
S3: I think it makes sense because it’s like pretty obvious musical fare. It’s a very pretty English period drama where people have a lot of feelings and just want to express those feelings and, you know, a great way to express feelings through song.
S2: The first inklings of this musical began within a few weeks of the show’s premiere. So on January 10th of 2021, Abigail Barlow posted a video to her TikTok with the now infamous caption. Okay, but what if Bridgerton was a musical?
S1: What a beautiful lady looking up at the scenes. Chandelier. Something like. You know this. It’s. If the court. Maybe you’re not.
S2: In that clip, she’s singing What Would Become Daphne’s song and then follows up with another video featuring the song Burn for You, which. Is the song you were probably most familiar with if you spent any time on Tik Tok.
S1: Oh, this is what you call a honeymoon. They sing, run a separate booze, running through more elaborate ruse. Where do. And please forgive me, Your Grace.
S2: That is at least a song that has been inescapable on my own fip. I unfortunately could probably recite the first few chords of that song from memory. I’m not going to do that. So after the success of these first two songs, Abigail follows up with a third informing her followers that she is now recruited her writing partner, Emily Baird, to compose the entire musical. The two had met through mutual friends, and they had bonded over graduating high school early and basically being child musical prodigies. Which same relatable content totally feel that.
S3: Oh yeah. As everybody who’s heard your singing on the show knows.
S2: Mm hmm. I have perfect pitch.
S3: Obviously. So a few days after this first post, Netflix actually even responded by posting on Twitter what seems to be their approval. They tweeted a video of Abigail singing Burn for You stitched with another actor, Nick Dailey, singing a duet. And they said, Absolutely blown away by the Bridgerton musical playing out on TikTok. They’re watching even even they’re aware that it’s happening.
S2: They were definitely aware. I don’t know if they quite knew it was going to happen, because over the course of six weeks, the pair, now known collectively as Barlow and Bear, very much giving Barnum and Bailey. We love alliteration. These two document the whole process of writing the musical on TikTok. So they’re posting videos, they’re livestreaming their songwriting sessions, they’re interacting with fans who are not only able to share their thoughts in the comments about the musical, but get involved in the making of it. Because Tik Tok is kind of perfect for this kind of thing for a few reasons.
S3: It really is. There’s the level of interactivity users feel with the infamous comment sections that are always full of useful and useless information, and perhaps most importantly, for Bridgerton success. The built in ability to stitch videos as the Netflix tweet demonstrated as well.
S2: Stitching is a huge, huge part of TikTok culture, specifically this kind of stitch duetting challenge in the singing realm of TikTok, where one person starts off usually singing a line, but often you’ll see someone playing a piano, playing some kind of instrument. And the caption reads, You sing red or you sing this character. And so what happens is Abigail Barlow will post a video of her singing, say Daphne’s part, and then she will caption it using Simon’s part, which of course, just encourages everyone on TikTok who can hold a tune to get involved. And there’s also this general culture of POV, which stands for point of view acting roles, basically where everyone is just emoting to a camera. So what I’m saying is this kind of already a built in model for something like the Bridgerton musical to occur.
S3: Yeah. And they really put those tools to use it, gave them a really steady feedback loop for their content and for people consuming and like giving notes on their content in a way. I think one interesting fact about that is that I read an NPR that one line in one of their songs Alone Together even came from a commenter, which I think is a pretty cool idea.
S2: Yeah. And it gives fans or the people watching it, the people who perhaps against their will are watching this because the FIP loves to serve you things to see the way this is coming together. And importantly, Bridgerton is not the only musical to come out of TikTok way back during pandemic season one. I don’t know what season we’re in right now. There was the rider to a musical, which was perhaps even more grassroots than Bridgerton, in that it sprang up organically on TikTok, with users collaborating and creating across the whole platform throughout the show. So it’s not like the Bridgerton musical in that bridgerton. It’s very much a Barlowe and bear production as based on the fact that they were the ones to accept the Grammy on Sunday. Ratatouille was very much a bunch of people who had never met each other coming together to write a musical on the FIP.
S3: A great thing about the Rada two musicals that it eventually ended up as a filmed concert in December 2020 featuring some pretty big Broadway stars. And it was a benefit for the actors fund raising over $2 million. So like this was this cute, fun, little grassroots musical that people were just writing and enjoying to kind of get through early days of the pandemic. But then, like, it really became something and became something that like tick tock and tick tock community could own. And I think that’s just really cool.
S2: Disney surprisingly gave its blessing for the project. They told The Verge, We don’t have development plans for the title, but we love when our fans engage with Disney stories. We applaud and thank all of the online theater makers for helping to bring. The Actors Fund in this unprecedented time of need. I do feel like the fact that because it was so communal and there weren’t specific creators names attached to it and because they were largely raising money for charity, Disney would look like a piece of shit for saying, Hey. Fuck you. This is ours. But with Bridgerton, I feel it’s a bit more murky.
S3: Oh, I definitely agree. I also think that Disney had the thought of like it would be rather difficult to stage a rat. Making somebody else cook like that would be just very hard to do from a theatrical perspective. So, I mean, maybe they made the right choice. But yeah, Bridgerton is much, I would say also easier to stage than a rat controlling a human. So I think it does definitely seem a bit murkier about like what this means for copyright. And are Barlow and Baer going to have to just like hand Shonda Rhimes their Grammy. Like what’s going to happen?
S2: I mean, especially because there are just so many stakeholders here. It’s not just Shonda Rhimes, it’s not just Netflix. It’s not just Julia Quinn, who is the author of the original Bridgerton series. It’s all of them. All of this definitely left me questioning how exactly do things like the Ratatouille Musical and now the Grammy Award winning Bridgerton musical legally exist? Doesn’t it infringe on copyright? Is it a transformative enough brand creation when there are songs in the Bridgerton musical that straight out pull dialogue from the show?
S3: Those are some great questions that I certainly don’t have the answers to. But thankfully, after the break, Rachel will be back with University of Colorado law professor Kristelia Garcia, who will answer all those questions for us and more.
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S4: Hi, Rachel. Thank you so much for having me.
S2: Before we get into the Bridgerton of it all, I kind of want to lay the groundwork for people who are unfamiliar. So how would you define a fan work?
S4: Generally we think of the sand work much like it sounds right. Anything created by a fan of another work. So in the legal parlance, we do an original work and then another work. And I say another work because I hesitate to say a derivative work, although some people that’s a legal term and some people think they are derivative and therefore require a license or a transformative work, which again is a legal term to say maybe it’s a fair use and it doesn’t require a license. So I’ll just say another work that builds on an original work.
S2: And you mentioned fair use. What are the kind of precepts that go into making something fair use versus a copyright infringement, if that’s the correct terminology?
S4: Yes, in a nutshell, well, there are statutorily four factors that go into a court’s determination or a jury’s determination of whether a follow on work is a fair use. Those factors are not necessarily always applied equally or given any particular weight. It depends. But one takeaway point I think we can generalize is to say under the current case law, fair use focuses predominantly on a concept known as transformative ness. That is to say, how different is this follow on work and does it add something new or important that the previous work didn’t have? That is the a generalization but helpful shorthand.
S2: I think the last time I spoke to you, I think it was back in August all the way in another timeline, it feels like, but it was about Tumblr’s post plus program. And there were a lot of concerns there because basically the program allowed creators to monetize fan works. And there was this theory flying around that in allowing creators to monetize bandwidth for would basically opening these creators up to legal liability. So if you made a fan drawing of Frozen, you were going to get sued by Disney. You very memorably told me, there’s nothing to see here, folks. This is based on a misinterpretation of the law. And we’ve actually got a lot of questions about how exactly is Bridgerton legal when it’s based on only off of a Netflix series, but a romance series by another author. So does that whole Nothing to see here motto also apply here to Bridgerton, the unofficial musical? Is it the unofficial that saves it?
S4: Well, I’m not sure that I would make the same assessment in this case. I think that there are a couple of things that make this a little different, maybe. First of all, in the emphasis that I had in that Tumblr case was that merely adding a commercial component wouldn’t turn something that was fair use into not fair use nor vice versa, right? Like making something non-commercial couldn’t save something that’s not a fair use in the first place. So. So here too, I think we could see there’s a bit of a non commerciality factor. But clearly whether that’s true because TikTok certainly pays content creators rate on the base, an ad shared as to Spotify, where the album now resides. So it wouldn’t be accurate to say that Barlowe and Bear aren’t making any commercial income on this. But again, I’d say that is one factor among four that we might consider in terms of whether or not this is fair use. But again, transformative misses the key because the more transformative a work is, generally speaking, the less weight the other factors, including commerciality carry, whereas the less transformative that that it’s determined to be, the more weight we’re going to give to other factors, including, among others, commerciality. So I think here that is a thing to think about, but it’s certainly not the only thing to think about.
S2: Are there any other kind of factors specifically about the Bridgerton musical that make it less clear cut?
S4: I think a lot of that hinges on this challenging terminology in the copyright law world, too, and in fair use, which is when you have a work that’s a derivative work, which means under the statute it needs to be licensed. And when you have a work that’s a transformative work, which means under the statute that it’s a fair use and doesn’t require a license. And the challenge is that there’s a lot of work that skate that line pretty closely where derivative works are often thought of as taking a work and recasting it in some new medium. So quintessential examples of derivative works. For example, take a novel and translate it into another language that’s derivative. Take a book and turn it into a TV series. Right. Write a screenplay for it. That’s derivative. And so Netflix had to license Julia Quinn’s books to write their series. Frankly, I’m inclined to think that a musical based off of an audiovisual work like a film. Is leaning towards a derivative work because it takes the content and recasts it in some new way. That’s said. And the reason I think this can be a close call, it adds a lot of new stuff, right? Like it’s not like it took songs from the series and just kind of, you know, sung them in a different voice. They’re not cover songs. They’re not even remixes. Right. It’s completely original work mixed in with other work. Right. So it’s conceivable that an argument could be made that it does something so new and so different and purpose and character to use legal terminology, and that we might actually have a transformative use. That’s that’s fair use. And, you know, if not, then then I think what we’ll see Barlow and Bear doing is getting an ex-post license. Right. And sharing some revenues that are coming from this with, with the copyright holders.
S2: The thing that struck me the most about Bridgerton the musical, is that it kind of used dialogue directly from the show. And I was wondering as to whether that made it less fair use.
S4: As a copyright attorney, I too cringed when I saw that the dialogue was in there because I thought, you know, damn it, had you just not done this, then I think we could have made a more colorable argument. And listen, there’s never one determinative thing, right, when it comes to fair use. But the challenge with using an actual sample, which is what this is right at the dialogue, it’s not that they took the dialogue and then read it in their own voices or, you know, change the words around and read them in a different language, say, write or anything like that. They literally lifted it is that we have a lot of caselaw that suggests that sampling, which is a common musical technique, is not fair use. And so even if a court or a jury was to find fair use for the musical as a whole, I would without a doubt think that the those particular samples of the dialogue would need to be either licensed or removed from the tracks.
S2: Okay, that makes a lot of sense. I feel like with this case and with honestly a lot of the cases of copyright use online, so much of it comes down to whether or not the copyright holder decides to take issue with it. Is that kind of what’s happening here with neither Netflix or Julia Quinn really? Sure. Suing.
S4: Right. That’s a an excellent observation. And it’s certainly true that copyright infringement is really only copyright infringement or alleged copyright infringement when the copyright owner acts to enforce their rights. Right. And if the copyright owner declines to sue for copyright infringement, then we don’t have a thing. And there are a lot of reasons why. It could be the case that the copyright owners for both bridgerton the series and Julia Quinn for the books haven’t done anything. If they haven’t, which go back to the same sort of thing we were talking about with Tumblr and the fan created works that there’s a lot of PR around bad PR, I should say, possibilities for suing fans rights, suing people who love the work. And in fact, what was going on with the unofficial Bridgerton musical is a love letter from from the fans to the series. So there’s a lot to that that bolsters the series, bolsters interest in the series, even people who weren’t watching before. So to some extent, it is exposure and promotion, which I always hesitate to to cite as things, but they could be things. And so particularly in light of the Grammy-Winning, I think the most likely outcome of that would be some kind of expose, that is to say after the fact license and with the powers that be that it arranges some sort of a read share. Right. Because they are pulling in at this point and will continue in light of the Grammy win streams on Spotify and views on Tik Tok and the advertising revenue associated with that.
S2: Okay. And then my last question is, could Netflix technically add by Grammy Award winning to Bridgerton’s accolades?
S4: Well, see, that might be the hook for getting this negotiation. I think that it would be disingenuous to say that Bridgerton is not a Grammy Award winning thing unless and until that exposed agreement is in place. And then they can sort of bring it into the family of of things and go from there. Who knows what they’re going to do? But that would be a touch inaccurate.
S2: Okay. Good to know. Bridgerton not up for an E got in any moment. All right. Well, that is all my question. Thank you so much for joining us.
S4: Kristelia Thank you again for having me, Rachel. It was my pleasure.
S2: That was Kristelia Garcia, law professor, University of Colorado. But all right. That is the show. We’ll be back in your feed on Saturday. So definitely subscribe. It’s the best way to never miss a fascinating conversation on the Internet and copyright laws. Please leave a five star rating and review an Apple or Spotify. Tell your friends about us. Tell your lawyer friends about us. Tell your copyright. Infringing friends about us. You can also follow us on Twitter. I see why on my underscore pod, which is also we can do most of your questions like is this legal? You can also always ask us if anything is legal. I see. Why am I at Slate.com? Please don’t confess a crime in our inbox.
S3: ASU. I Am ICE produced by me Daniel Schrader. We are edited by Forest Wickman and Alegria Frank. And Alisha Montgomery is executive producer of Slate Podcasts.
S2: See online or at the Grammys.
S3: I know we weren’t perfect, but.
S2: Mm hmm. No, I don’t know her. Who is she, anyway?