Speaker 1: This is Bloombird Law with June Brasso from Bloomberg Radio,
Speaker 1: All is fair in love and war ms Staphnip Bridgeton
Speaker 1: the time has come for the social season, which young
Speaker 1: ladies might succeed at securing a match before was amuse Me,
Speaker 1: Miss Bridgeton. The bridget In series shattered records for Netflix
Speaker 1: and inspired fans to create and post Bridgertain inspired works.
Speaker 1: Abigail Barlow and Emily Bear started out as two of
Speaker 1: those fans, posting bridget In themed TikTok's, which got millions
Speaker 1: of views, leading the pair to create the fifteen song
Speaker 1: unofficial bridget In musical, This is Honeymoon from our Elaborate
Speaker 1: Rooms when Please Forgive Me Your Grace, and at this
Speaker 1: year's Grammys it won the Best Musical Theater Album. But
Speaker 1: when Barlow and Bear staged a sold out performance of
Speaker 1: the musical at the Kennedy Center, Netflix discided that enough
Speaker 1: was enough, and, after repeated objections, sued them for copyright
Speaker 1: and trademark infringement. My guest is intellectual property litigator Terence Ross,
Speaker 1: a partner at Captain Uten Rosenman. So, Terry, is this
Speaker 1: considered a parody? I don't think so not. Even in
Speaker 1: the broadest definition of parody. It is clear that actual
Speaker 1: dialogue from the bridgt In television show is used as lyrics.
Speaker 1: The characters on the stage were apparently dressed in costumes
Speaker 1: that were similar to the ones used intelligence show, the
Speaker 1: settings were similar to the television show, and the parent
Speaker 1: intent and effect upon the audience was to recreate the
Speaker 1: brit In television experience in a live performance with music.
Speaker 1: So I've been learning a lot about on fiction with
Speaker 1: this lawsuit. So this would be a form of fan fiction.
Speaker 1: So yes, this is clearly a fan fiction work. Fan
Speaker 1: Fiction has been with us for decades now, and the
Speaker 1: legal standards relating to it are both crystal clear and
Speaker 1: sort of opaque. There's this complete agreement and clarity with
Speaker 1: respect to the fact that fan fiction is a derivative work,
Speaker 1: and the Copyright Act of nineteen seventy six, amongst the
Speaker 1: exclusive rights that conveys the copyright owners is the exclusive
Speaker 1: right to produce derivative works. And there is no doubt
Speaker 1: whatsoever that this fan fiction is typically a derivative work
Speaker 1: and therefore constitutes copyright infringement absent one of two things happening.
Speaker 1: And again the law is clear on this. Either there
Speaker 1: has to be permission from the copyright owner to engage
Speaker 1: in producing the derivative work, or there has to be
Speaker 1: colorable claim of fair use under Section one on seven
Speaker 1: of the Copyright Act. Now that's the clarity we have here.
Speaker 1: Where things get a little bit opaque is with respect
Speaker 1: to how producers of original content engage with producers of
Speaker 1: fan fiction. And you see that here in this bridget
Speaker 1: In lawsuit in its most dramatic form. Over the years,
Speaker 1: producers of content have to a certain extent welcome fan
Speaker 1: fiction in the sense that it creates a buzz about
Speaker 1: a work. There's no more powerful advertising marketing than word
Speaker 1: of mouth, and this is all free advertising for the
Speaker 1: original work fan fiction. The problem arises when the creators
Speaker 1: of the fan fiction either engage in disparagement of the
Speaker 1: original work or they attempt to profit off the original work.
Speaker 1: And so there's this tension between the original producers of
Speaker 1: the content and the persons producing the fan fiction. And
Speaker 1: you see different producers original content coming down different places
Speaker 1: on this. Paramount Pictures has always been a supporter of
Speaker 1: fan fiction with respected Star Trek series. You look at
Speaker 1: the other side and there are many producers of original content.
Speaker 1: J K rolling with the Harry Potter series in particular,
Speaker 1: has been fairly aggressive and attempt to stop it. Now,
Speaker 1: in that instance, there has been this adult or sexually
Speaker 1: explicit form of derivative works coming out of Harry Potter
Speaker 1: series that, as they said, disparaging, and original content owners
Speaker 1: tend to be pretty harsh on that. But you see
Speaker 1: the original producers content on both sides of this fan fiction,
Speaker 1: and that is where the opaqueness comes. We're pretty clear
Speaker 1: what the law should be, but then we get into
Speaker 1: this range of quasi supporting it, quase I not supporting it,
Speaker 1: and it's hard to draw lines there. So then does
Speaker 1: it appear that Barlow and there are using the intellectual
Speaker 1: property of Netflix without permission, constituting copyright infringement. So there's
Speaker 1: no doubt in my mind whatsoever that the plainist here
Speaker 1: Netflix have established on the face of the complaint of Prime,
Speaker 1: a fashion case of copyright infringement as well as trademark infringement.
Speaker 1: The question we should be asking, well, what's the defense
Speaker 1: that we're going to see from miss Barlow and miss
Speaker 1: bear and based on path cases in which fan fiction
Speaker 1: has been charged with copyright infringement. We typically see two defenses,
Speaker 1: one that we had the implied authorization to do this,
Speaker 1: or to that our use of the original work was
Speaker 1: a fair use and therefore protected from copyright infringement. Go
Speaker 1: through what a fair use analysis might look like here.
Speaker 1: So the fair use analysis and the context of fan
Speaker 1: fiction probably traces itself back to an old case involving
Speaker 1: Gone with the Wind, the epic book and motion picture,
Speaker 1: a true parody was done called The Wind Done Gone
Speaker 1: and The Wind Done Gone, took the story of Gone
Speaker 1: with the Wind and looked at it from the point
Speaker 1: of view of the slaves who were involved in that novel,
Speaker 1: and in a very real sense it was a social commentary.
Speaker 1: And therefore the eleven circuit, when faced with a copyright
Speaker 1: infringement action against The Wind, Dungan held that it was
Speaker 1: a fair use, that it was a transformative work, which
Speaker 1: is the key for fair use analysis. It transformed the
Speaker 1: original work in such way that it contributed to societal good,
Speaker 1: essentially a commentary on the treatment of enslaved peoples during
Speaker 1: the Civil War, and therefore it was allowed. So that
Speaker 1: is essentially the approach that has to be taken in
Speaker 1: these fan fiction cases with respect the fair used defense
Speaker 1: is the work sufficiently transformative that it accomplishes some sort
Speaker 1: of societal good is recognized in the Copyright Act, and
Speaker 1: I think you could be hard pressed to see that here.
Speaker 1: This is not a parody. This is very much taking
Speaker 1: advantage of the original Netflix television series Britain in attempting
Speaker 1: to exploit it. It is very different from this word
Speaker 1: transformative works that have been approved by the courts in
Speaker 1: the past, and I think this will be a very
Speaker 1: hard road for the defendants to pursue a fair used
Speaker 1: defense here. I think it's far more likely that they're
Speaker 1: going to have to pursue some sort of implied license defense.
Speaker 1: So how would it applied license defense work? So you
Speaker 1: see the elements of the implied license defense in this case.
Speaker 1: In the actual complaint, the lawyers for Netflix have anticipated
Speaker 1: that that's the way the defendants will attempt to go
Speaker 1: In defending this quote unquote unofficial musical of bridget It.
Speaker 1: They repeatedly point out that yes, there were discussion with
Speaker 1: Miss Barlow and Miss Bear about the fans fiction that
Speaker 1: they were producing, but in each instance they carefully preserve
Speaker 1: the right and saying we're not authorizing this, we're not
Speaker 1: going to do anything about it right now, And they
Speaker 1: always stopped short. So they wanted a little bit of
Speaker 1: this frans fiction without it going to the point of
Speaker 1: displacing their potential marketplace. And that's the tension that I
Speaker 1: talked about before, that original producers of content have with
Speaker 1: producers of fan fiction. They want to have their cake
Speaker 1: and eat it too. Now Here. I think Netflix made
Speaker 1: it clear throughout the discussions with Miss Barlow and Miss
Speaker 1: Bear that they were not authorized, and indeed, I assume
Speaker 1: that one of the things defendants will say as part
Speaker 1: of the defense is that, well, gosh, this has been
Speaker 1: going on for a year now and they haven't done anything,
Speaker 1: And that is sort of facially attractive, legally difficult to
Speaker 1: make defense because there is no obligation on the part
Speaker 1: of a copyright planiff to sue you at a specific time.
Speaker 1: The mere fact that you wait six months the year
Speaker 1: to file the lawsuit does not really matter in this context,
Speaker 1: where you're constantly sending out signals we don't approve of this,
Speaker 1: we don't authorize that. Which particularly problematic here is that
Speaker 1: the unofficial bridge and musical and the merchandise associated with
Speaker 1: came out about the same time that Netflix and the
Speaker 1: bridget and television people were thinking of moving in that direction,
Speaker 1: and therefore it was displacing a legitimate market opportunity for
Speaker 1: the copyright hold I know that a lot of these cases,
Speaker 1: or maybe even most of them, settle, but is there
Speaker 1: any impetus for Netflix to settle here? Hard to see
Speaker 1: unless the defendants simply cave in and say we give
Speaker 1: up what do you want, which, by the way, is
Speaker 1: not a scenario that I would discount. I think their
Speaker 1: legal position is very difficult. Copyright infringement lawsuits are expensive
Speaker 1: because they require special counsel. On the other hand, if
Speaker 1: I'm Netflix, I'm hard pressed to see why I would
Speaker 1: settle for anything less than a complete surrender. Their legal
Speaker 1: position is very strong and in my view, a pretty
Speaker 1: good case of willfulness on the part of the defense.
Speaker 1: In other wise, they commit willful copyright infringement, which would entitle,
Speaker 1: if found, the Netflix folks to recover their attorneys fees.
Speaker 1: So the plainists aren't really even going to be out
Speaker 1: their lawyers fees because those are gonna be paid for
Speaker 1: by the defendants. Now, the one thing that could force
Speaker 1: a settlement here is if Netflix comes to the conclusion
Speaker 1: that Ms barlams Bear are for all practical purposes judgment
Speaker 1: proof um, in which case they won't be able to
Speaker 1: recover their attorneys fees and probably will one limit their
Speaker 1: own attorney's fees and and just settle with them going
Speaker 1: away and giving up on this project. The amount of
Speaker 1: fan fiction out there is astounding and TikTok. I mean,
Speaker 1: that's how they got started on TikTok, and I saw
Speaker 1: that the author, the Bridgetain author Julia Quinn, in a
Speaker 1: statement said there's a difference between a TikTok composition and
Speaker 1: performing for commercial gain. So I guess once the money
Speaker 1: starts rolling in, that's where the line is drawn. That's
Speaker 1: absolutely true to But here in particular, they not just
Speaker 1: moved from the TikTok around, but they were moving directly
Speaker 1: into a market that was targeted by Britain and Netflix.
Speaker 1: It is very common for movies and television shows in
Speaker 1: the current environment to become broadway shows. I mean, we
Speaker 1: see this all the time. Lion King is a great
Speaker 1: example of that. There's sort of this three sixty view,
Speaker 1: as dis thing would put it, of content, where you
Speaker 1: repurpose it into different media. I mean Star Trek was
Speaker 1: originally television show was repurposed into the movies and became
Speaker 1: even bigger. And so the threat that was posed here
Speaker 1: by the defendants to Netflix was taking away one element
Speaker 1: of that three sixty view of entertainment content, i e.
Speaker 1: The opportunity to do Broadway musical as well as the
Speaker 1: merchandizing that comes from that. And that's that's why at
Speaker 1: bottom Netflix had to act. At this point they were
Speaker 1: losing a critical market component if they didn't act. Netflix
Speaker 1: is also claiming trademark infringement. What is the trademark? The
Speaker 1: trademark is Britain, and the defendants have captioned their show
Speaker 1: that they put on at the Kennedy Center and planned
Speaker 1: put on the Royal Albert Hall in London later this
Speaker 1: year as the Unofficial Bridgetain Musical. So the Brilluton name,
Speaker 1: which is trademark, has just taken. Indeed, in the advertising
Speaker 1: they actually put after the word bridgertain the capital are
Speaker 1: in a circle indicating it's a registered trademark. Not to them,
Speaker 1: but netflike was kind of shocking. Thus they acknowledge that
Speaker 1: they were taking a registered trademark. The argument that defense
Speaker 1: that they would make is actually a little bit better
Speaker 1: though than the copyright defense. They will say that by
Speaker 1: putting in front of the word Bridgeted the unofficial Bridgeted Musical,
Speaker 1: they were indicating the people that it had no association
Speaker 1: or relationship with the Netflix bridget In television show. This
Speaker 1: is very common in trademark law. We see this all
Speaker 1: the time. The actual word usually uses unauthorized, and that
Speaker 1: may matter here. The fact that they went with the
Speaker 1: word unofficial instead of unauthorized may come back to haunt them.
Speaker 1: But trademark law is different than copyright law, and copyright
Speaker 1: laws intended to protect the creator of the original work.
Speaker 1: Trademark laws intended to protect consumers against being misled as
Speaker 1: to what they're buying, and so there's a different standard here.
Speaker 1: And the question is will the people who bought tickets
Speaker 1: to the Unofficial bridge Of Musical understand that they were
Speaker 1: not buying something that was associated with the related to
Speaker 1: bridget and the television show. And if they can show
Speaker 1: that use of the word unofficial meant that people knew
Speaker 1: that it wasn't being put on by Netflix, then they
Speaker 1: might have it out from the trademark cause of action. Interesting,
Speaker 1: it's sort of brazen. But you know what, they got
Speaker 1: famous with this, so that's a big step. No matter
Speaker 1: what happens, they got the Ramians, they move ahead with
Speaker 1: the Heck, there's no question that there's some talent here.
Speaker 1: Marlosba demonstrated the dack producing content that people are interested in,
Speaker 1: and perhaps they can parlay that into something in the
Speaker 1: future that does not involve taking the hard work of
Speaker 1: copyright owners. The problem there are a lot of people
Speaker 1: out there who are capable of writing music and lyrics
Speaker 1: putting it to other work. The trouble is coming up
Speaker 1: with your own idea exactly and dilogue exactly. We'll see
Speaker 1: what happens with them and with the lawsuit. Thanks so much, Terry.
Speaker 1: As always, that's intellectual property litigator Terence Frost, a partner
Speaker 1: at Captain uten Rosenman. Hair Love is an animated short
Speaker 1: film about an African American dad who's attempting to style
Speaker 1: his young daughter's hair for the first time. When the
Speaker 1: film won an Academy Award in filmmaker Matthew Cherry used
Speaker 1: his time to talk about new legislation known as the
Speaker 1: Crown Act. Hair in Love was done because we wanted
Speaker 1: to see more representation and animation. We wanted to normalize
Speaker 1: black hair. There's a very important issue that's out There's
Speaker 1: the Crown Act that stands for creating a respectful and
Speaker 1: open world for natural hair. The law prohibiting discrimination against
Speaker 1: hairstyles and textures historically affiliated with race passed the US
Speaker 1: House in March, but the bill has not yet been
Speaker 1: considered by the Senate. Still, eighteen states have passed their
Speaker 1: own Crown Acts in the last three years, including some
Speaker 1: red state. California and New York were the first states
Speaker 1: to pass the measure only three years ago, and Massachusetts
Speaker 1: became the latest state on July. Joining me is. Chris
Speaker 1: mar senior correspondent for Bloomberg Law, tell us a little
Speaker 1: about these black hair bias laws called Crown x sure.
Speaker 1: So these laws banned race related hair discrimination. So we're
Speaker 1: talking about bias in the workplace or in schools most
Speaker 1: of the time against traditionally black hairstyles or textures. And
Speaker 1: so these are these are laws that forbid employers and
Speaker 1: or public schools from discriminating against things like dreadlocks and
Speaker 1: bantu knots and braids and and other hairstyles and textures
Speaker 1: that would be commonly worn by black students or black workers.
Speaker 1: So one of the co sponsors of the Massachusetts measure, Democrats,
Speaker 1: the state representative Brandy Fluker Oakley, called the law game
Speaker 1: changer for black women. Can you explain what she meant? So,
Speaker 1: her comments and I've heard a lot of particularly black
Speaker 1: women make similar comments about these laws being passed in
Speaker 1: the States, point to this sort of pressure for for
Speaker 1: black workers and women in particular to do things like
Speaker 1: chemically straighten their hair or or otherwise alter their hair
Speaker 1: from its natural texture to look what some employers would
Speaker 1: consider to be more professional. But it's you know, it's
Speaker 1: a it's a biased expectation, right that if you have
Speaker 1: naturally black hair, are naturally black hair texture, um to
Speaker 1: think of that as unprofessional. And so that's kind of
Speaker 1: the underlying bias that these laws are trying to root out,
Speaker 1: to say, you know, black workers and black students should
Speaker 1: be able to wear their hair and natural texture or
Speaker 1: or in these traditionally sort of protective hairstyles without facing
Speaker 1: negative consequences at work or school. So does that mean
Speaker 1: that employers with let's say sales staff can't require employees
Speaker 1: to tie their hair back or you know, if they're
Speaker 1: working in a in a restaurant wear a hairnet. So
Speaker 1: the details of each state law vary somewhat, but in
Speaker 1: a lot of cases they do allow for health and
Speaker 1: safety related requirements such as tying the hair back or
Speaker 1: wearing hairnet. Um. These protections are against really specifically race
Speaker 1: related hair policies um, and so if it's health and
Speaker 1: safety related or it or it's neutral and not race specific,
Speaker 1: then generally employers could still enforced hair policy is within
Speaker 1: their dress code. One employment lawyer I talked with gave
Speaker 1: the example of, you know, this doesn't mean you have
Speaker 1: to hire a person with blue hair, you know, because
Speaker 1: that's not related to race. Right? Is it mainly blue
Speaker 1: states that are enacting these laws. So blue states have
Speaker 1: really led the charge. California and New York were the
Speaker 1: first to enact a version of the Crown Act back
Speaker 1: in twent nineteen, and so the majority of the states
Speaker 1: are those with Democratic majority legislatures, but we have begun
Speaker 1: to see some Republican majority legislatures get in on the
Speaker 1: Act as well. So uh Louisiana, for example, has a
Speaker 1: new law that that just took effect August one. Tennessee
Speaker 1: and Alaska also have passed versions of this, although you
Speaker 1: know sometimes in a in a narrower way of the
Speaker 1: Alaska bill, which is awaiting the governor's signature, there would
Speaker 1: only deal with discrimination at school, not placed discrimination. And
Speaker 1: the House passed a national version of the Crown Act
Speaker 1: in March. So Chris tell us about the Crown Act
Speaker 1: and how it came about. So, the Crown Act, the
Speaker 1: Crown stands for creating a respectful and open world for
Speaker 1: natural hair and and this is something that really a
Speaker 1: coalition of of advocacy groups came up with and and
Speaker 1: I've been pushing for in states and at the federal level,
Speaker 1: UM and and have and have had, you know, pretty
Speaker 1: pretty good success in my opinion. You know, within just
Speaker 1: a matter of three years now we've got eighteen states
Speaker 1: that have adopted this. Alaska will make nineteen if if
Speaker 1: the governor signs the bill. There is there a real
Speaker 1: push to get this through in the Senate because I
Speaker 1: haven't heard much about it, right, And I'll confess I
Speaker 1: don't cover Congress closely. I focus more on the states. UM.
Speaker 1: I talked for the colleague of mine while I was
Speaker 1: working on this, and who does cover Congress and her
Speaker 1: sense was that it's it's just sort of on ice.
Speaker 1: You know, there's so many other priorities in the Senate. No,
Speaker 1: it's not easy to get anything through the Senate these days. Now,
Speaker 1: what about the possible impact on employers? Are they expected
Speaker 1: to see more lawsuits than based on this right? So,
Speaker 1: so it does create another category of potential discrimination lawsuits
Speaker 1: against employers. Um well, I should say, in state laws vary.
Speaker 1: In some states, employees could bring a lawsuit. In other states,
Speaker 1: they would bring a complaint through the state labor commissioner
Speaker 1: or some other state agency, which would then, you know,
Speaker 1: handle some sort of resolution process. But yes, it does
Speaker 1: create the potential for more discrimination claims against employers, and
Speaker 1: so you know, they will need to review their policies
Speaker 1: and and think about how they want to train their
Speaker 1: their managers who handle hiring and firing discipline. I want
Speaker 1: to turn to another issue involving labor law, and that's
Speaker 1: non competes. Businesses often require employees to sign non compete
Speaker 1: agreements which prevent them from leaving and going to a competitor.
Speaker 1: And you write about a trend in states to ban
Speaker 1: non competes for lower and middle income employees and hourly workers.
Speaker 1: D C has just passed a law which is going
Speaker 1: to go into effect on October one. Tell us about that, right, So,
Speaker 1: the District of Columbia has has passed a law now
Speaker 1: that will ban almost all employee noncompete contracts for workers
Speaker 1: who make less than a hundred and fifty thousand dollars
Speaker 1: per year. UH. And there are a few narrow exceptions
Speaker 1: in there, for example, relates to the broadcast industry, but
Speaker 1: by and large that means employers won't be able to
Speaker 1: have their workers sign a contract saying they can't go
Speaker 1: to work for a competing company unless they make more
Speaker 1: and a hundred and fifty thousand dollars a year. And
Speaker 1: that's that's kind of the starting threshold, and it will
Speaker 1: be increased each year based on inflation after the law
Speaker 1: takes effect. Do you know how they reached that, because
Speaker 1: that is pretty substantial, right, It's a it's a higher
Speaker 1: figure than most states have gone with. It may be
Speaker 1: the highest. I think Washington State went higher for independent
Speaker 1: contractors who are not considered employees. But other than that,
Speaker 1: I do believe the hundred and fifty thousand is the
Speaker 1: highest threshold UH that any state has set I'm not
Speaker 1: sure how they came up with that number, but I
Speaker 1: think it was intended as a little bit of a
Speaker 1: compromise because the Council originally passed the law back at
Speaker 1: the end of and it never took effect. They delayed
Speaker 1: it sort of indefinitely. But but that law would have
Speaker 1: banned virtually all noncompete regardless of the employee's income level.
Speaker 1: Explain the trend in these laws, why states are passing them? Sure? So,
Speaker 1: I guess the theory with with having employees signed noncompete
Speaker 1: is that the employer is trying to protect uh, some
Speaker 1: sort of trade secret or or confidential company information. They
Speaker 1: don't want an employee to leave the company and go
Speaker 1: work for a competitor and take that sort of sensitive
Speaker 1: competitive information to the competing company. You know. Within the
Speaker 1: last few years, it's become sort of better understood that
Speaker 1: a lot of the workers being asked to sign these
Speaker 1: noncompetes really don't have access to trade secrets or or
Speaker 1: confidential information. There were reports going around a few years ago,
Speaker 1: for example, that, uh, you know, sandwich chains like Jimmy John's,
Speaker 1: we're asking their you know, their restaurant workers to sign
Speaker 1: these noncompete and you know, you kind of scratch your
Speaker 1: head and think, well, what's what's the reason for that,
Speaker 1: Although companies still sometimes argue, well, we we invested money
Speaker 1: in in training the employees, and so we don't want
Speaker 1: them to take that those sort of skills and training
Speaker 1: that we've spent money on and take it to another company. Um.
Speaker 1: But so so there's kind of a movement amongst states.
Speaker 1: It's a I think eleven at least eleven states now
Speaker 1: plus the District of Columbia have passed law that bans
Speaker 1: noncompetes based on some income level. And those originally started
Speaker 1: with the idea of protecting low income workers. But of course,
Speaker 1: you know, we can see with DC that has you know,
Speaker 1: moved up beyond just low income workers. Uh. And now
Speaker 1: and with d C and also Colorado, which passed new
Speaker 1: law this year, the thinking is more in line with
Speaker 1: we're only going to allow noncompetes for highly compensated employees.
Speaker 1: Colorado set the threshold at a hundred thousand, and now
Speaker 1: DC has said a fifty thousand. Thanks so much, Chris.
Speaker 1: That's Chris Mars, senior correspondent for Bloomberg Law. And that's
Speaker 1: it for this edition of the Bloomberg Law Show. Remember
Speaker 1: you can always get the latest legal news on our
Speaker 1: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
Speaker 1: and at www dot bloomberg dot com, slash podcast slash Law,
Speaker 1: And remember to tune into The Bloomberg Law Show every
Speaker 1: week night at ten BM Wall Street Time. I'm June Grossow,
Speaker 1: and you're listening to Bloomberg