Court Allows Chooseco's Lawsuit Against Netflix Over 'Bandersnatch' To Move Forward

from the pro-choice dept

You will recall our previous posts about Chooseco, the company behind those "Choose Your Own Adventure" books from the 80s, and its lawsuit against Netflix. At issue is Netflix's Black Mirror iteration entitled Bandersnatch. The episode essentially runs a choose your own adventure scenario in streaming film, with the viewer being able to control the outcome of the narrative through choice. In addition, Netflix marketed the episode with references to it being a "choose your own adventure" style story. In addition, the protagonist in the episode refers to a book that is the basis for a video game he's creating as "a choose your own adventure book." Predictably, Netflix petitioned the court for a dismissal, arguing that the First Amendment allowed it to make the references it did in the production, so long as it wasn't purposefully confusing the public with its use of the "choose your own adventure" mark. In the conclusion of that post, we wrote this:

Netflix would like the court to acknowledge that pretty much everything Chooseco is complaining about that is included in Bandersnatch is not protectable, and that pretty much all the rest is protected as expression and art by the First Amendment. Frankly, it's hard to imagine how the court could argue differently, although there's always the chance the court might decided that these are issues best decided in the trial phase.

Which, sadly, is exactly what happened. The court's decision (embedded below) takes the reader on quite the journey, where it essentially does a full analysis on the test for using trademarks in artistic works. That test consists of two components: is the use in an artistic work and, if so, is that use purposefully misleading the public. Chooseco argued that because Netflix made money off of Bandersnatch, it can't be considered purely artistic. The court points out that's besides the point, since precedent exists for partially-artistic, partially commercial works to be afforded equal protection. In addition, the threshold for the use of a mark being artistically relevant is, again by precedent, literally anything other than entirely irrelevant. The court goes on to note that Bandersnatch's use definitely does have artistic relevance given the context of the episode as a whole. The decision concludes:

"Here, the protagonist of Bandersnatch attempts to convert the fictional book 'Bandersnatch' into a videogame, placing the book at the center of the film’s plot," states the ruling. "Netflix used Chooseco’s mark to describe the interactive narrative structure shared by the book, the videogame, and the film itself. Moreover, Netflix intended this narrative structure to comment on the mounting influence technology has in modern day life. In addition, the mental imagery associated with Chooseco’s mark adds to Bandersnatch’s 1980s aesthetic. Thus, Netflix’s use of Chooseco’s mark clears the purposely-low threshold of Rogers’ artistic relevance prong."

That sure does sound like the court thinks Netflix's First Amendment claim is a good one. And, yet, as happens so many times with courts at this stage of proceedings, deference is given to plaintiffs, as well as the larger trial process and the need for discovery to be performed. For that reason, the court sets its own analysis aside and allows the trial to move forward.

"Here, Chooseco has sufficiently alleged that consumers associate its mark with interactive books and that the mark covers other forms of interactive media, including films," continues the decision. "The protagonist in Bandersnatch explicitly stated that the fictitious book at the center of the film’s plot was a 'Choose Your Own Adventure' book. In addition, the book, the videogame, and the film itself all employ the same type of interactivity as Chooseco’s products. The similarity between Chooseco’s products, Netflix’s film, and the fictitious book Netflix described as a 'Choose Your Own Adventure' book increases the likelihood of consumer confusion."

The court reached the same conclusion on Netflix's claim that its use was Fair Use. Essentially, the court has decided that Chooseco's suit is worth at least the discovery phase of a trial.

Again, this isn't entirely surprising, even if it is certainly frustrating. Trademark law cannot supersede the First Amendment, and even this court seems to think that Netflix is on solid footing with its First Amendment claim. For anyone to argue that a franchise like Black Mirror using the term "choose your own adventure" is going to confuse the public into thinking Chooseco is somehow involved is pretty silly. And, yet, Chooseco gets to the discovery phase of a trial over it.

Filed Under: art, bandersnatch, choose your own adventure, fair use, trademark
Companies: chooseco, netflix


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  • identicon
    Bobvious, 13 Feb 2020 @ 4:18am

    Choose your own ADVERSARY

    FTFY

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 13 Feb 2020 @ 4:35am

    Turn to page 47 if you want to create more bad legal concepts

    Turn to page 97 if you want to just get money from the deep pockets

    Turn to page 32 if you weren't sure Chooseco was still in business

    Turn to page 75 if you just want dragons and explosions

    Close the book if you're tired of rent seeking assholes ruining building on old things to create new better things

    reply to this | link to this | view in chronology ]

  • icon
    Mike Read (profile), 13 Feb 2020 @ 4:38am

    What I don't understand is how the phrase "Choose your own adventure" is even allowed to be a trademarked as it seems to me to be purely descriptive.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Feb 2020 @ 4:46am

    Choose your own legal result:

    turn to page 1 if you want to be kerb-stomped by Netflix

    turn to page 2 if you want to be exploded into red mist by Netflix

    turn to page 3 if you want to be utterly vanquished to oblivion by Netflix

    Turn to page 4 if you want to attempt to flee the legal proceedings but be destroyed by Netflix's request for attorney fees anyway

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Feb 2020 @ 10:28am

    Who associates "choose your own adventure " with a specific brand of book? To me it seems more like a book type/genre/category than anything else. It's like if lovecraft wanted to trademark "horror". Pretty sure you can't trademark a descriptive name of a category.

    reply to this | link to this | view in chronology ]

  • identicon
    bob, 13 Feb 2020 @ 11:12am

    hope they make more

    I really liked how Netflix used the concept and tech to make their film. I only wish they had chosen different content so that the video could be shared with younger consumers.

    This interactiveness is probably the closest I have come to being on a holodeck and interacting with the story without having to spend a bunch of money on personal tech devices. Not needing to wear bulky equipment or travel to another site to experience interactivity is nice.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Feb 2020 @ 2:03pm

    Trademark confusion:
    Well, it certainly wasn't Black Mirror gaining audience share due to conflation with Chooseco. If anything, it would be the other way around, Chooseco gaining back a bit of cultural relevance due to their sort of gig being used in a story.

    So, uh... pay Netflix? Or just accept the free advertising and fuck off. Chooseco is neither the originator, nor the sole producer, of gamebooks. They merely registered someone else's lapsed mark.

    reply to this | link to this | view in chronology ]

  • identicon
    TheDumberHalf, 13 Feb 2020 @ 7:14pm

    To clown court with these bozos

    There are too many examples to count, but games like Space Ace and Dragon's Lair made a ton of money with choose your own adventure. Since there's been no enforcement for 30+ years and there's no standing, it must be a joke.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Feb 2020 @ 12:05am

    *sigh*

    Just another example of the brazen attempts to claim ownership of a genre by those whose catalogue of works are based on the existing body of works created by others. It was inevitable we'd see it in all forms of art once the music industry got the ball rolling.

    reply to this | link to this | view in chronology ]


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