Anita Gogia is a IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Abigail Barlow and Emily Bear combined their talent with their love for the Netflix Original, Bridgerton, to create the 15-song “Unofficial Bridgerton Musical” album. Barlow and Bear went on to become viral sensations on social media and (2022 Best Musical Theatre Album) for their production.

On July 29^th 2022, Netflix the TikTok stars Barlow and Bear in the U.S. District Court in D.C. alleging in violation of 17 and . Netflix Barlow and Bear have benefited from their album’s false association with the Bridgerton brand. Netflix also the position that Barlow and Bear “” the elements of expression, dialogue, characters, and key plot points from Bridgerton.

Allegedly, in March 2021, when Barlow and Bear’s team asked Netflix for permission to record their album, Netflix the activity but said they wouldn’t “”. Per their , Netflix told Barlow and Bear that they would not authorize any live performances of the songs. Despite Netflix’s statements, in July 2022, Barlow and Bear held a sold-out show in New 91��ɫ with ticket prices ranging from $29-$149+. When hearing of the future live shows Barlow and Bear had planned, Netflix that would permit their shows, continued distribution of the album, and any further performances of the Bridgerton-inspired songs; but Barlow and Bear refused the licensing option.

Perhaps more important for Netflix is the promotion and success of their event “Queen’s Ball,” a Bridgerton held across multiple cities. Barlow and Bear’s live show would likely compete with the profits of the “Queen’s Ball.”

Barlow and Bear hold the position that their work is not liable for IP infringement because it is inherently “fan fiction.” Netflix has that “Barlow & Bear’s conduct began on social media, but stretches ‘fan fiction’ well past its breaking point.” Jane Quinn, author of the books of which Bridgerton is based has a difference between flattery through composing songs on TikTok and performing an album for commercial gain.

Barlow and Bear may use the “fan fiction” defence to claim their work is not an infringement based on fair use by proving the elements of fair use: the art is to the original show. Additionally, fan fiction must be for the creator. considered for establishing fair use are the purpose of the work created, nature of the work copied, measure of the material copied, and the impact on the market.

Ironically enough, if this case was filed in Bridgerton home territory, the UK, Barlow and Bear may attempt to use the defence of parody and pastiche. Netflix would likely win their case had it went to court based on ��a very similar case earlier this . ��In the of v. Only Fools The Dining Experience, the court ruled in favour of the creators of the original show because the nature of the “dining experience” was not so removed from the original show “” with it. Similar to Netflix, Shazam had their own musical for which sales could have been diverted by their audience choosing the dining experience instead. The court also found that that the defences of parody and/or pastiche did not apply.

TikTok has proven since the pandemic its unique power to make music, books, and tv/film over-night sensations. The Netflix v. Barlow and Bear case illustrates that companies may have to navigate between having its work become a positive viral sensation ��while still protecting their business interests and the content that its ��team has worked so hard to create.

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Raenelle Manning is an IPilogue Writer and 2L J.D. Candidate at Osgoode Hall Law School.

Wait until Lady Whistledown gets her hands on this juicy gossip! The Netflix Original series,��“Bridgerton” attained notable popularity after its release last year. Based on the romance novel series by Julia Quinn, the show centers around the Bridgerton family members’ search for true love. Fans expressed their love for the show various ways on social media. However, one musical duo exceeded the fan-generated content standards. In September 2021, songwriters and (or ) went viral on TikTok for their self-composed Bridgerton songs. They later released a 15-song album based on the show’s characters and storylines, entitled “The Unofficial Bridgerton Musical.” This year, their album won a Grammy for “Best Musical Theatre Album，” making it the first album to win the award for music created on TikTok. Netflix’s official TikTok account even praised the album , “Absolutely blown away by the Bridgerton musical playing out on TikTok [.] Standing ovation for @abigailbarlow…”.

Unfortunately, Netflix’s applause ended after the Grammy-award premiered the live performance of the Unofficial Bridgerton Musical at the Kennedy Centre in Washington D.C. Netflix is now suing Bear and Barlow for stealing “” to build their global brand. The song writing duo seemed to have crossed the line when they began profiting off the Bridgerton brand. Netflix argued that this is a direct violation of , which provides that only copyright holders have the exclusive right to monetize and create derivative works of their IP. Netflix claimed that the defendants declined their before the live performance and proceeded without authorization.

Netflix also took issue with the use of the “Bridgerton” name, as it risks consumers believing that the live performance is associated with the official brand. The concert particularly threatened the success of Netflix’s own live event “The ,” a multi-city event that transports fans into a regency-era ball, as depicted in the show. Since one of the event locations is in Washington D.C (where the defendants’ concert occurred), Netflix believes fans may choose one over the other.

It was obvious that Bear and Barlow invested time and resources into perfecting their work. ��Of course, it is disheartening to see a small business be victim to a legal action by a global company like Netflix. However, the defendants acted without considering Netflix’s intellectual property rights. The show’s executive producer, denounced Bear and Barlow’s financial exploitation of the brand in a recent public statement. Rhimes acknowledged the efforts of the countless individuals who contributed to Bridgeton’s production, including author Julia Quinn. While this case may seem like a “David vs Goliath” situation, intellectual property rights function to protect original creators. With the increased prevalence of content creation on social media , it is important for creators to be aware of these IP laws. As catchy and creative as Bear and Barlow’s album is， they will likely not be able to continue to benefit from Netflix’s creative work.

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Sally Yoon is an IPilogue Writer, IP Innovation Clinic Fellow, and a 3L JD Candidate at Osgoode Hall Law School.

How similar is too similar? Television producers need to be careful to ensure that they are not mimicking real-life businesses too closely to offer their fictitious shows some realism. According to , AMC Networks and Sony Pictures, the production companies behind Better Call Saul, are being sued for trademark and trade dress infringement by Liberty Tax. The tax company claims that the producers and film studios “decided not to be original at all” and “rip off” of its trademark which has been in use for over 25 years.

The episode in question (Season 6, Episode 2) portrays a business called “Sweet Liberty Tax Services,” shown below. The fictitious business is run by Betsy and Craig Kettleman, who embezzle money by taking advantage of their clients who do not understand the tax system. The real-life tax company "Liberty Tax" claims that the show copied its logo and style, including the Statue of Liberty, which is a frequent identifier of the company.

Photo retrieved from The Wrap

The is no stranger to trademark infringement issues.��Audiovisual professionals know to be especially careful whenever trademarks are displayed on screens. However, production teams can defend their works against claims of trademark infringement. Among these avenues are demonstrating that the trademarks are being used in an “indicative manner” or a “mere accessory,” instead of for identifying goods and services. Camerawork plays an important role in achieving that the trademarks blend into the scene’s overall ambience. For example, to mitigate trademark infringement risks, directors may take active measures to prevent fixed close-ups or give too much screen time to one particular trademark over another.

All that said, a trademark does not necessarily have to be displayed visually to trigger a trademark infringement lawsuit. After the release of “Black Mirror: Bandersnatch” in 2018, , a children’s book publisher known for their ‘game books’ titled Choose Your Own Adventure. As an interactive film, Bandersnatch viewers could take control and make decision for the protagonist, Stefan Butler, as he navigates a series of disturbing events. By adopting the unique narrative structure of its books and using the specific phrase “Choose Your Own Adventure Book,” Chooseco accused Netflix of willfully infringing its trademark and ultimately tarnishing the series’ child-friendly reputation. Netflix eventually settled with Chooseco in late 2020 after unsuccessfully arguing on grounds related to trademark law and fair use allowances.��

Moreover, in 2020, Netflix's movie "Enola Homes" was the by the estate of Sir Arthur Conan Doyle over “similarities to existing Sherlock Holmes material.” The estate argued that the film depicted a version of Holmes that was not yet in the public domain, illustrating how IP infringement issues can arise when films are based on works still under copyright protection.

Liberty Tax’s recent lawsuit shows that minor alterations to fictitious names may not be enough to bypass trademark infringement issues – not so “sweet” anymore for the “Better Call Saul” team.

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The possibility of confusion between the series and the military division seems minimal. As has been , people are not likely to show up at a Space Force military branch expecting to meet Steve Carrell. However, what would happen if Netflix would like to sell space force uniforms with the official military insignia to promote the series? Would the U.S. government have any grounds to prevent such commercial activity?

The answer lies, at least in , in who used the Space Force title first. As the U.S. Patent and Trademark Office : “Common law rights may be stronger… if the common law use is earlier than the use that supports the registration.” Netflix announced the of the series on January 16^th, 2019 while President Trump only the National Defense Authorization Act, which added the Space Force to the U.S. military, on December 20^th, 2019. Based on this, it would seem clear that Netflix used the mark first. Of course, one could say that the idea of the Space Force was used by the federal government when it was by the President approximately 10 months prior to Netflix’s ordering of the series. However, such an argument may fail given that the U.S. Supreme Court has recently that statements by politicians are not necessarily pertinent to deciding the merits of a case. On the basis of the timeline, it would surely seem that Netflix would win a hypothetical legal battle with the Trump Administration. Moreover, the use by the Trump Administration is not a commercial use and hence may be irrelevant to deciding who can register the mark, as per the

Not only would this seemingly be the right legal decision, but it would also be a win for creativity and expression. A hypothetical victory for the federal government could easily have a chilling effect on creativity and commercial activity. Many businesses may not have the money to both apply for a trademark and also hire a lawyer to aid in navigating such a process and hence require the common law trademark right absent federal registration. A decision upholding such a view would surely continue to strengthen expression and ingenuity.

A Netflix victory would undoubtedly rattle the Trump Administration, its closest allies, and the President himself. Of course, one need only look to the President’s against Saturday Night Live for their parodies of him. This already engrained distaste of parodies coupled with specific parodies of a branch of the U.S. military which he embraces wholeheartedly will surely attract his ire. A Netflix victory may reasonably cause substantive retribution, such as a rethinking of and its relation to . Once again, given the President’s Twitter for flagging his tweets, is such retribution unthinkable? Such reaction, if enacted and valid, could punish not only Netflix, but many companies who may get caught in the crossfire.

The U.S. Supreme Court held in that parodical work can be argued to be a fair use under the . Much of the decision easily applies to trademarks as well and I believe would be important to a hypothetical lawsuit. While there is no fair use provision in the United States Trademark Act, a defense of fair use in trademark cases has been established, with a 2004 Supreme Court decision,, acknowledging its existence. Arguing that Netflix should be allowed to sell, for example, uniforms of the Space Force that closely mirror the actual military uniforms and brandish the exact same or confusingly similar insignia on the basis that the show is parodical or satirical is a stretch to be covered under the fair use defense of trademark infringement, as affirmed in Permanent Makeup. Indeed, such an argument would work if the only question was whether Netflix could air the show, as the show itself is clearly a parody or satire. However, I do not believe it to be the case that such aforementioned merchandise is itself parodical or satiric nor closely connected to parody. The argument resting on parody and satire may work, in line with Campbell, in only certain cases whereas the common law argument will surely result in the broad and correct decision, a Netflix victory.

The Trump Administration has not as of yet signalled any conflict over the Netflix series. However, it is easy to see how this type of hypothetical issue may play out. If it were to happen, a win from Netflix would be beneficial to creativity and provide a net benefit, even given the legitimate risks.

Written by Nicholas Heinrich. Nicholas is an undergraduate student at the University of Toronto studying Political Science and Economics.

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A potential legal battle is set to ensue between Netflix and the US government in securing the rights of “Space Force” at home. While the government does have a pending licence currently on hold with the USPTO, it seems that Netflix could potentially win a contest with the government. However, it would be in the interest of the military to pursue the licensing of “Space Force” before Netflix beats them to it.

The owner of the sought-after trademark presents multiple opportunities for shaping public opinion. First of all, if the government owns the mark, it gets to control how other companies such as Netflix or any non-government affiliated corporation use the name. If the government has control over the “Space Force” trademark, companies can be encouraged to show the US forces in a favorable light and enhance their popularity among Americans. 

As an interesting parallel, NASA has used its brand and trademark rights to promote itself in the public realm. For instance, it allows shoe and apparel company Vans to design shoes displaying the NASA logo. All companies that use  on their products must go through the space agency for approval. Vans benefits as well. It secures the market of space enthusiasts. 

As the Space Force is relatively new, it would be helpful for its own image if its name is used in promotional materials. While a US spokesperson has commented that they have no knowledge of Netflix’s attempt to obtain the trademark rights, it would be in its best interest to pursue legal action while the government has an advantageous position. The USPTO operates in a for trademarks, which means that priority is given for the entity that uses the trademark for a commercial basis first.

Nonetheless, one could also argue that giving Netflix this trademark in the US and abroad could benefit the government’s Space Force in the long run. If the show attracts a larger audience in subsequent seasons, the military’s Space Force could still reap from the cultural impact of the production. Albeit the show is satirical, it could popularize the US’ Space Force abroad.

At the end of the day, there are two immediate scenarios that can happen in the current situation. The government may decide not to pursue any legal action against Netflix and give up its claim over the trademark to the streaming company. Alternatively, the government might pursue legal action, resulting in difficulties for Netflix in obtaining the mark due to the advantage that the government holds with current trademark laws.

Nadim Dabbous is an incoming JD/MBA student at Osgoode Hall Law School.

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Since its conception Netflix has restricted users’ access to regional shows from other locations. However, due to pressure from content providers, the streaming service has become more aggressive with reinforcing the ban. While much of the popular content on Netflix today is original programming, it still has a lot of content that is only available in certain countries.

To stream this content, Netflix has to pay to license the programming, much of which is only available in certain countries. Subscription payments do not account for users in other regions attempting to view the content using a VPN to disguise their locations. This creates a massive issue for content creators who seek to protect their work, as well as the profits derived from the programming.

To combat this issue, Netflix is working with studios on global licensing for the programming it offers. Currently, securing licensing agreements with networks and other content owners is the . The company spent nearly $13 billion in 2018 on content licensing, which increased to $15.3 billion the following year.

A global strategy could extend Netflix beyond the regionally determined parameters. When addressing the matter of how people use VPN services to get around geographic content restrictions, Netflix CEO Reed Hastings the solution is for the company to offer the same content to everyone, irrespective of where they are in the world.

This move to provide international content would undoubtedly be good for business, as it helps to reduce the licensing agreement costs, while also ensuring users have a more interesting selection of programming, potentially increasing the number of users. While the prospect of a global content library is promising, getting around regional licensing restrictions presents a tricky hurdle.

Additionally, privacy concerns also spring to the forefront with any restrictions on VPN use. The ban fails to account for users who rely on VPN services to protect their data while using Wi-Fi. These users pay for local access and use Netflix without violating the terms of service, and as such, should not be unduly restricted, nor forced to abandon their privacy safeguards.

These issues need to be resolved quickly as indicate that Netflix’s revenues are not growing fast enough to cover its rising licensing expenses, which are projected to be on pace for . Ultimately, the more reliant the company is on licensed content, the more money they will have to spend to remain competitive in the coming years with companies like Hulu and Disney Plus on the rise.

Written by Jason Clarke, a third year JD Candidate at Osgoode Hall Law School. Jason is also a Clinic Fellow at the Osgoode Innovation Clinic.

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A 2012 acknowledged the growth of OTT services, but recommended that Canadian broadcasters respond by moving aggressively into the OTT space rather than creating a new regulatory category for internet media. Rogers and Shaw attempted this in the past few years with their OTT service Shomi, which has since failed, but Bell’s CraveTV .

At the end of 2016, Netflix and Amazon Prime announced that they were expanding their service into virtually every country in the world, with Netflix in 190 countries and Amazon Prime in 200. With OTT services now becoming truly global in scope, how will Netflix and Amazon simultaneously deal with the media regulations of every government in the world and how can Canadian content producers and distributors continue to compete?

by Brian Barrett, a senior writer at Wired and former Editor in Chief at Gawker Media answers the first question with two words: original content. If OTT services invest in creating their own shows, a significant amount of work around licensing the rights to stream movies and shows by other producers eventually gets cut out as more and more content is added directly by the provider. A previous example is Comcast’s in 2009 where a major broadcaster bought a major content producer to gain greater control of the media supply chain.

Over the past 5 years Netflix and Amazon have done just this, growing their library of original TV shows and movies. Bell has begun to produce its own shows through CraveTV, signalling an adoption of this model in Canada. The effect of a distributor owning its own content is that it makes licensing unnecessary, as a single entity now owns the rights to the content in perpetuity and therefore can distribute them without need for a license. This saves time and money and simplifies the supply chain of delivering content but it also signals a major shift that concerns media creators and distributors around the world.

If more and more content that people want to consume is produced by OTT distributors, then the ability of Canadian media companies to get licences for in-demand shows becomes far more difficult and will cut them out of the supply chain. Bell currently has licences for HBO and Showtime, two popular US content producers, but both have their own small OTT services, HBOgo and Showtime Anytime. The first is currently available in Canada with a (a subsidiary of Bell), the second is . If the big OTT’s gamble on content creation pays off, these content creators may try to grow their own OTT presence globally rather than keep selling licences.

While it is clear that Canadian distributors need to focus on content creation, it is also important that this content be marketable outside Canada. The federal government has affirmed a commitment to move from “focusing on growing the��domestic��market” to “capturing a greater share of��global��markets” in a recently commissioned Heritage Canada titled “Canadian Culture in a Digital World”. Heritage Minister Mélanie Joly told the in 2016 that the biggest challenge for content producers is “finding better ways to export the material on digital platforms around the world”. The article noted such a review of CanCon rules is a major upheaval not seen in 25 years.

The move to global OTT services signals an increase in demand for high-quality content and a reduction in the barriers to distributing content to other markets. Canada is well positioned to profit from this change, if it allows it creators and distributors the freedom to create shows that are compelling to global audience, not just a Canadian one.

Roger Angus is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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