Netflix Loses Bid To Dismiss $25 Million Lawsuit Over 'Black Mirror: Bandersnatch' (hollywoodreporter.com) 91
On Tuesday, Netflix lost a bid to escape a lawsuit brought by the trademark owner of "Choose Your Own Adventure" over the 2018 immersive film Black Mirror: Bandersnatch. The series' original publisher, Chooseco, sued the company early last year for $25 million in damages, as the company says that Netflix's new movie benefits from association with the Choose Your Own Adventure series, without the company ever receiving the trademark. From Hollywood Reporter: According to the plaintiff, it has been using the mark since the 1980s and has sold more than 265 million copies of its Choose Your Own Adventure books. 20th Century Fox holds options for movie versions, and Chooseco alleges that Netflix actively pursued a license. Instead of getting one, Netflix released Bandersnatch, which allows audiences to select the direction of the plot. Claiming $25 million in damages, Chooseco suggested that Bandersnatch viewers have been confused about association with its famous brand, particularly because of marketing around the movie as well as a scene where the main character -- a video game developer -- tells his father that the work he's developing is based on a Choose Your Own Adventure book.
In reaction to the lawsuit, Netflix raised a First Amendment defense, particularly the balancing test in Rogers v. Grimaldi, whereby unless a work has no artistic relevance, the use of a mark must be misleading for it to be actionable. U.S. District Court Judge William Sessions agrees that Bandersnatch is an artistic work even if Netflix derived profit from exploiting the Charlie Brooker film. And the judge says that use of the trademark has artistic relevance. Thus, the final question is whether Netflix's film is explicitly misleading. Judge Sessions doesn't believe it's appropriate to dismiss the case prematurely without exploring factual issues in discovery. Netflix also attempted to defend its use of "Choose Your Own Adventure" as descriptive fair use. Here, too, the judge believes that factual exploration is appropriate. You can read the full decision here.
In reaction to the lawsuit, Netflix raised a First Amendment defense, particularly the balancing test in Rogers v. Grimaldi, whereby unless a work has no artistic relevance, the use of a mark must be misleading for it to be actionable. U.S. District Court Judge William Sessions agrees that Bandersnatch is an artistic work even if Netflix derived profit from exploiting the Charlie Brooker film. And the judge says that use of the trademark has artistic relevance. Thus, the final question is whether Netflix's film is explicitly misleading. Judge Sessions doesn't believe it's appropriate to dismiss the case prematurely without exploring factual issues in discovery. Netflix also attempted to defend its use of "Choose Your Own Adventure" as descriptive fair use. Here, too, the judge believes that factual exploration is appropriate. You can read the full decision here.
Litigate, litigate (Score:2)
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Bandersnatch is not difficult to differentiate from a book.
A film is a bit more difficult to differentiate from the authorized film adaptation of a book, and a Disney subsidiary currently holds the rights to such an adaptation.
I'd say dub it. Is there a different publisher of branching-path novels that's more eager for product placement? Or should CYOA instead stand for "Cover Your Own" you know what?
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is there an authorized bandersnatch?
also well. look, their defense is that they have done it for a long time. sure. but if you made a car that you said was based on the ford model t then ford couldn't really sure you for it. or an adventure game that was based on the format of sierra type in games.
I would have thought that they would be sued for the the name bandersnatch to be honest. or did they somehow find some zombie to license that name from?
If you put "Ford Model T" on it, you're getting su (Score:2)
This isn't a copyright case. It's not about "based on".
It's about the brand NAME, the trademark "Choose Your Own Adventure".
If you build a car, any car, and use "Ford" in your advertising for a car that isn't made by Ford, you're going to get sued.
Netflix would have been fine if their marketing (and the movie itself) referred to "Choose Your Path" or whatever. It's the brand name that is the issue.
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and a Disney subsidiary currently holds the rights to such an adaptation.
What book is this film an adaptation of?
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Not only is it not an adaption of a book, but in a "choose your own adventure" book, you simply turn a page, or turn to a page. How the hell is that the same thing as inventing a new scheme for movie-watchers to interact with a goddamned MOVIE?? The technology involved, alone, SHOULD be enough to toss this whole stupid thing out of court.
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If there is no trademark on "choose your own adventure" and they probably couldn't get one because by now it's become so generic and used for so many different products (I had nearly all the Fighting Fantasy series when I was a kid!) then I don't see that they have much of a case here.
Probably just hoping for a settlement.
U.S. Trademark 78159212 (Score:2)
If there is no trademark on "choose your own adventure"
Chooseco LLC, a Vermont limited liability company, owns U.S. Trademark 78159212 [uspto.gov] on "CHOOSE YOUR OWN ADVENTURE" for "series of fiction books for young adults".
Fighting Fantasy
CYOA wasn't even the first gamebook brand I encountered. It was Nintendo Adventure Books. So among several brands of gamebook (Fighting Fantasy, Pick a Path, Nintendo Adventure Books, Choose Your Own Adventure, Which Way Books, Give Yourself Goosebumps), is there a reason that CYOA was namedropped and not the others?
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I remember having to write a short one as an exercise at school when I was about 12.
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OK, so there is a trademark. ...and?
(1) Did Netflix try to mislead people in believing they were watching a branded, bonafide "Choose Your Own Adventure" movie?
OR..
(2) Did Netflix make a reference to a type of book that can most easily be recognized (by a general audience) using the common phrase.
I would say the first option seems like a legitimate beef. Netflix you vile impostor, don't use my trademark for your inferior product!
The s
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From the summary it sounds like there *is* a trademark on "choose your own adventure" - which is kind of ridiculous, but... "Windows(TM)"
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The 1985 Apple 2 game Law of the West [wikipedia.org] was basically a simplified graphical "choose your own adventure". The genre has been around "forever" in the gaming industry.
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I still sing some of the songs from the C64 version of that.
Bwa bwa bwa, bwa bwa bwa bwawawa!
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Right but trademarking generic phrases is idiotic and holds culture hostage due to greed.
There are only so many permutations one can use.
What's next?
* "Pick you own adventure"
* "Choose your (mostly) own adventure"
* "Select your adventure"
* Someone writes program to trademark all the synonyms?
Phrases are NOT property. Stop buying into this bullshit.
Re: Litigate, litigate (Score:2)
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Re: Litigate, litigate (Score:2)
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We already live in it, and have done so since immemorial times.
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Speak for yourself....
Over here it's flawed, but not that broken yet.
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Bandersnatch is not difficult to differentiate from a book
That's not what's at suit here. It is "choose your own adventure". Chooseco indicates that they have a trademark to the term.
Re: Litigate, litigate (Score:4, Insightful)
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They have a trademark on the exact wording "Choose Your Own Adventure". There's a competing line of similar children's books from another publisher called "Pick a Path". They're not suing people for implementing the concept, they're trying to protect their trademark that applies to the name of the series.
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It's a while that I went through Bandersnatch (and it was worth it! most fun was going through all these layers of abstraction - don't want to spoiler but in some ends there is something on top of a "interactive movie" about an "interactive book")
But was "Chose your own Adventure" explicitly mentioned?
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But was "Chose your own Adventure" explicitly mentioned?
According to the summary, yes.
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But was "Chose your own Adventure" explicitly mentioned?
According to the summary, yes.
Well, yes, but with such a rather generic Trademark name, I was hoping for a little more detail.
tells his father that the work he's developing is based on a Choose Your Own Adventure book.
could have been:
"Hi dad! I'm writing a video game based on a "Choose Your Own Adventure" book"
or
"Hi Dad! I'm writing a video game based on a book that lets you choose your own adventure."
Hard to tell if you basically have to listen for the quotes during the show, but stupid anyway. Settling on the right to use a "As seen on Netflix Bandersnatch" on the books would be for both.
But of course that's not possible as
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Oh and of course it may end with a ruling that "Choose your own adventure" became a generic brand or could become a generic brand if the publisher isn't defending his trademark.
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They could sue for anything, but for that they wouldn't win (without cheating).
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The question in this case is going to be whether or not a person might think the Netflix show was created or authorized by Chooseco. That's going to be up to the judge and/or jury to decide.
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Bandersnatch is not difficult to differentiate from a book.
In case you haven't noticed, there have been quite a few book to TV transitions recently.
I think there are plenty of arguments that just referring itself to being "like a choose your own adventure book" is just a passing pop culture reference that would be protected under fair use, or that the term "choose your own adventure" is too descriptive to be applied so broadly as a trademark (like if someone tried to trademark "electrical tape"), but I really don't think the change in media from book to TV is relev
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>the term "choose your own adventure" is too descriptive to be applied so broadly as a trademark (like if someone tried to trademark "electrical tape")
"Windows(TM)" ...enough said.
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Not really, because Microsoft has never (that I can find) sued anyone for using the generic term "Windows" in the context of a GUI system. They have sued Lindows OS and people claiming their software/utility/whatever is official Windows stuff, because that is what the limited scope of trademarks applies to.
Just like Apple don't sue supermarkets for selling "McIntoshes".
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Not to mention I think it'd be fairly easy to argue that Choose Your Own Adventure Book has been genericized.
Copyright on an entire idea? (Score:2)
I enjoy Choose your Own Adventure books. As a proud owner of lots of them, I find this terrible.
The idea that they are the only people that own the idea that a story can have multiple endings and multiple paths is ridiculous. What about video games? Are they next? Why not throw rubix cubes in there.
It is a shame anyone has to spend money to fight this in court.
--
What if everything is an illusion and nothing exists? In that case, I definitely overpaid for my carpet. - Woody Allen
Trademark, not copyright (Score:5, Informative)
The idea that they are the only people that own the idea that a story can have multiple endings and multiple paths is ridiculous.
As I understand this and the previous story, Chooseco doesn't claim exclusive rights in branching-path novels. Chooseco instead claims exclusive rights in in the use of the "CHOOSE YOUR OWN ADVENTURE" mark to refer to them.
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Yes. There's a competing line of children's books implementing the same concept called "Pick a Path" that's managed to coexist with "Choose Your Own Adventure". One could argue that these are overly generic descriptive phrases and don't qualify for trademark protection, but that's another can of worms.
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I think "choose your own adventure" is actually a fairly unique combination of words, unlikely to be repeated by accident. I'm not a lawyer, but the angle I would take is that it's a genericized trademark.
But I also noticed while watching Bandersnatch the name-drop and thought it was weird they had permission to use the term but didn't spring for the branding on the entire episode.
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Chooseco instead claims exclusive rights in in the use of the "CHOOSE YOUR OWN ADVENTURE" mark to refer to them.
Very different situation, since this is about a phrase / brand name.... But reminds me of when King tried to trademark the word "Candy" for all games, movies, songs, and clothing. Because of Candy Crush.
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I can recall at least one other publisher of such books "Which Way Books". There may have been more. The concept was not unique.
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particularly because of marketing around the movie as well as a scene where the main character -- a video game developer -- tells his father that the work he's developing is based on a Choose Your Own Adventure book.
I don't know much about this particular case, but I'd guess this may be what did Netflix in. I don't think they would have lost the lawsuit then, as there are a staggering number of videogames that follow this pattern. Even other books under different brand names did the exact same thing without problems.
Re:Copyright on an entire idea? (Score:4, Informative)
The haven't lost a lawsuit, the judge dismissed most of it but allowed the strongest (though still weak) claims to proceed to discovery.
They "lost" their attempt at an early 100% victory, only achieving 85% or so, with the rest simply proceeding to the next stage.
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Ah, yeah, I didn't read carefully enough. Thanks for the clarification.
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Which should be a strong signal to the book publisher as to continue this or not...
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Which should be a strong signal to the book publisher as to continue this or not...
In the past they tried to sue anybody who publishes a book with multiple optional plot lines, they don't have a history of learning from their losses.
This is the stupidest lawsuit that their lawyers were still willing to file, so it got filed.
Don't expect the next lawsuit to be less stupid, just narrower in scope.
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Re:Copyright on an entire idea? (Score:5, Insightful)
Comment removed (Score:4, Interesting)
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"Choose" would be. "Choose your" is a little narrower. "Choose your own" now includes a redundancy, making it narrower still. "Choose your own adventure" is pretty unique, it's not that difficult to avoid. I think if they said "Choose a story" it would make your argument stronger -- Choice is central to the product, so the word alone should not be protectable by itself in this context.
When I type "Choose your" into google, with the quotes, in the first two pages only one item was not "choose your own ad
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Apricot, macintosh and apple...
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I don't think the issue is with the concept of a user guided adventure plot but with the use of the trademark that is specific to the company that has a huge stake in the concept, the article states "the character in the film uses and refers to 'Choose Your Own Adventure' book as a source".
Ultimately what it comes down to is that Black Mirror: Bandersnatch is very popular and the company that owns CYOA obviously wants their cut of the profits the BM series has made by making reference to CYOA in the their f
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Ultimately what it comes down to is that Black Mirror: Bandersnatch is very popular and the company that owns CYOA obviously wants their cut of the profits the BM series has made by making reference to CYOA in the their film/TV show.
They could probably make more if they just used the mention in Bandersnatch to get on top of the whole retro-trend that Bandersnatch and Stranger Things and boost their sales again. Maybe not exactly a sticker "As seen on Bandersnatch" on their books but something along those lines. You know... "Alf is back! As POG!!"
This is a move to dismiss, not the actual case (Score:2)
This isn't a ruling on the case. I don't know how Netflix marketed this series. But if the phrase "choose your own" was used in their marketing materials, then I could see some merit to a trademark violation lawsuit (whether that ph
EASILY SOLVED!!! (Score:2)
Netflix, just claim you actually based it on D&D. Which predates the Choose Your Own Adventure Books. And is also famous for asking you come to a scene, what do you do?
In fact, I believe that Choose Your Own Adventure books were often called Role-Playing Books (hence my religious parents opposed my reading them as a kid).
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In fact, I believe that Choose Your Own Adventure books were often called Role-Playing Books (hence my religious parents opposed my reading them as a kid).
But I'll bet they still dressed you up for the nativity scenes...
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LARP is something different :-P
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There is actually a series of books called Fighting Fantasy that combines picking different options with RPG elements.
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There are several such series.
Fighting Fantasy is probably the most famous with a large variety of authors but started off with Steve Jackson (the British one) and Ian Livingstone. There was also Grail Quest, Sagas of the Demonspawn - both by Brennan, LoneWolf - by Joe Dever... are just some I've read/played, and there are literally dozens of others.
Usually the genre(?) format(?) is called "gamebook"
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I liked the Be An Interplanetary Spy and the Time Traveler books.
You could die horribly in BAIS but not in the Time Traveler ones, as I recall.
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The lawsuit is not about Bandersnatch being a branching-path story, it's about them referring to the in-universe Bandersnatch book as "a choose your own adventure book". And CYOA have trademark on "Choose Your Own Adventure".
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Netflix, just claim you actually based it on D&D. Which predates the Choose Your Own Adventure Books. And is also famous for asking you come to a scene, what do you do?
I guess you've never played D&D. Or perhaps played it with a really poor DM.
DM: "Please come to this scene."
Players: "WTF? Are you all right, Jeff?"
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So you should be sued for mentioning "Choose Your Own Adventure Books", too? Fundamentally stupid.
Seems obvious to me (Score:2)
Seems obvious to me that they'd want to do a full factual analysis of the situation, rather than dismissing.
Wow... did the judge actually play the game?? (Score:2)
I think that anyone who actually played Black Mirror: Bandersnatch on Netflix and understands the dark humor of this show quickly realizes that the "choices" are just an illusion and that your character is going to come to a bad end no matter what options you pick in the game.
It's more like a parody of these kinds of games and books from the 80's, and should probably be treated as such if you try to make a copyright claim against it.
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I think the judge is doing the right thing. If the case gets dismissed, then it doesn't set any legal precedent. When Netflix wins the lawsuit, it will set legal precedent so the plaintiffs can't go around suing others.
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Ah yes, Choose Your Own Adventure... (Score:2)
I remember those. I read and reread some on long (interstate) car-trips when I was a kid, checked others out at the school or city library and spent a few hours reading them at home. Some of them I flipped through the book looking for an interesting ending, then did a backward search to piece together the plot to that ending.
I'm not sure if it was the same trademark, but I remember either books in that series or a similar series that had one-page BASIC programs to type in and run for some of the choice-po
Current Trademark owners stole it 2003 (Score:2)
Random House let the trademark "Choose your own adventure" lapse and two former contracted authors of the series re-registered "choose your own adventure" in 2003. The current trademark owners aren't the creators of the idea, they are trademark trolls.
$100 says that.. (Score:1)
Never saw it. (Score:1)
Netflix (Score:1)