Netflix has failed in in its first attempt to dismiss a $25 million lawsuit, regarding its hit 2018 interactive movie experience, Black Mirror: Bandersnatch. The lawsuit was filed by Chooseco LLC, the children's book publisher behind the immensely popular Choose Your Own Adventure book series. The lawsuit basically alleges that Netflix released Bandersnatch using the Choose Your Own Adventure format and brand association - rather than paying for a license of the brand, which Netflix apparently was pursuing at one point. Netflix hoped to dismiss the lawsuit on grounds that First Amendment rights, the use of a mark like "Choose Your Own Adventure" wasn't a violation of copyright law.
In the latest update, U.S. District Court Judge William Sessions has ruled that Bandersnatch is an artistic work (even if intended for profit), and that use of the Choose Your Own Adventure Trademark has artistic relevance, worthy of legal dispute:
"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," Judge Sessions said in his 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."
The case being referenced above, Rogers v. Grimaldi, resulted in the ruling that, "unless a work has no artistic relevance, the use of a mark must be misleading for it to be actionable." Netflix had argued that, "The idea of a narrative storytelling device in which readers or viewers make their own choices is not protected by trademark law."
Specifically, Netflix lawyers made the case that Bandersnatch used the "Choose Your Own Adventure" reference, and even a copy of the novel shown in Bandersnatch, as means of establishing nostalgic association between the books series, the Bandersnatch movie, and the film's 1980s setting. That usage, Netflix's lawyers argued, was not exploitative of Chooseco's brand in any way:
"Here, the phrase 'Choose Your Own Adventure' is artistically relevant to the film because its plot involves the protagonist's efforts to convert the book 'Bandersnatch' into a videogame, and the storytelling structure of the film mirrors the fictional storytelling structure of the book and videogame. Where, as here, the complaint fails to plead any plausible theory of consumer confusion, much less a 'particularly compelling' case, dismissal is warranted."
Since the judge has now axed this argument, it looks like Netflix will have to move forward with a full lawsuit process, as Chooseco shows no sign of letting up. Maybe before all that massive production budget is (over)spent, something should be added to the legal defense fund?
You can watch Black Mirror: Bandersnatch no Netflix.