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.
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