31 Oct BLURRED LINES – USE OF SOCIAL MEDIA TO COMMERCIALIZE BRANDS
By Fanta Punch
Fans of the immensely successful Netflix production Bridgerton have no doubt been keenly following the recent claim brought by Netflix Worldwide Entertainment LLC ( “Netflix”) against the team of Abigail Barlow and Emily Bear (“Barlow & Bear”) in July 2022 for trade mark and copyright infringement.
Barlow and Bear are the creators of “The Unofficial Bridgerton Musical” which started on the social media platform Tik Tok through online postings as well as the release of songs which was based on the show. It gained significant popularity. In addition to its social media presence there was a record album and a charity event, which was not opposed by Netflix. This culminated in a record album which won a Grammy Award earlier this year for Best Musical Theatre Album for Barlow & Bear.
The genesis of the dispute started when Barlow & Bear disregarded Netflix’s objections and proceeded to stage a live performance of its own ‘for profit’ production entitled “The Unofficial Bridgerton Musical Album Live in Concert”. Its event was quite similar to Netflix’s own live in-person events complete plans for merchandising and a Bridgerton soundtrack album.
In response to what was viewed as the unauthorised use of its intellectual property rights, Netflix commenced infringement proceedings to protect its rights. Not unsurprisingly for a matter of such high reputational value, as fast as it began, it seems to have ended. Last week, the parties reached an out of court settlement and Netflix discontinued its claim in the US courts.
This case raises interesting questions surrounding management of intellectual property rights in the digital space particularly where fandom crosses the line into infringement.
There is no question that Netflix is the legitimate owner of its copyright and trade marks in Bridgerton and entitled to exploit, or license those rights in any way it chooses including setting the limitations on any third party use of those rights. These rights hold significant commercial value and more so in the digital space, brand owners need to be adaptive and capable of acting quickly to protect against infringement or unauthorised use of its intellectual property.
On the other hand, it would be fair to say that Barlow & Bear’s creativity in social media platforms like Tik Tok and in monetising user expressions, has contributed or enhanced the value of the Brigerton brand, by building brand loyalty in a unique way for Netflix and its customers.
Both parties have gained in some way from the brand. However, Barlow & Bear’s actions in moving from fan appreciation to benefitting commercially from the Bridgerton brand resulted in Netflix seeking to assert its rights. The question of where is the line between the two interests did not get ventilated in this particular case though likely to arise again at some point.
Today social media is increasingly key to a brand’s marketing strategy and an advantageous one at that. Being on social media allows companies to commercialize their brand, connect directly with large numbers of customers and leverage enthusiasm for the brand. The widespread nature of social media means that content can go viral very quickly or become an internet sensation, such as the case with Bridgerton.
While use of social media platforms can be (and is in a lot of cases) a successful strategy for brand owners who capitalize on this popularity, there can also be associated risks, due to the instantaneous nature of social media, visibility to large numbers of consumers, and its interactive nature which are exacerbated if a strategy is not right or the unexpected result occurs.
Is there a solution? A perfect outcome seems to be one where both brand owner and content creator get to benefit in equivalent though not equal measure. This case highlights some of the difficulties for intellectual property rights holders as they navigate in a digital context which is fast moving, dynamic, creative and lucrative to not only protect against unauthorised use of those rights but also to successfully exploit innovative opportunities for growth.