February 13, 2020
$25 million lawsuit against Netflix’s “Choose Your Own Adventure” film will proceed
by Ryan Harrington
Think back to content past. Netflix’s anthology series Black Mirror, specifically its 2018 feature length cousin Black Mirror: Bandersnatch, seems, to most of us, like a weekend spent and then forgotten.
But the film is back in the news.
Bandersnatch was a perfect pitch to the millennial binger: it’s about the techno-dystopia we’re aging into, and, in offering the innovative ability to click through and influence viewing experience, it evoked a favorite formal experiment of our youth—the choose your own adventure story.
The trouble is that Choose Your Own Adventure, in this case, should have been capitalized, as it is not just a literary form—like, say, the sonnet—but a trademark owned by children’s book publisher, Chooseco LLC.
Chooseco filed its complaint against Netflix’s misleading use of the form in January 2019. As Eriq Gardner writes for The 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.
Since that filing, Netflix has attempted to avoid a lawsuit on the grounds that the work had artistic relevance and no intent to mislead the viewer.
U.S. District Court Judge William Sessions has deemed the work of artistic merit, but finds that it remains unclear whether or not the product was misleading or if any claim to “fair use” of the phrase “Choose Your Own Adventure” as a descriptor of the plot applies.
You can read the full decision here.
At the moment, Chooseco’s claims of unfair competition will move forward.
Ryan Harrington is a senior editor at Melville House.