Legal Geek No. 158: Netflix sued by owners of Choose Your Own Adventure

Welcome back to Legal Geek. This week, we won't be rapping like last week, but instead, choosing our own adventure, as we cover how the owners of that brand of books sued Netflix last week for potential trademark infringement and dilution.

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As you probably know, Netflix received critical acclaim and positive fan reaction to continuing the British anthology science fiction dystopian series Black Mirror. In the most recent iteration, Netflix made a Black Mirror movie entitled Bandersnatch, in which a computer programmer is making a video game version of a Choose Your Own Adventure book.  Like the books, viewers have the chance to direct which of many branching paths the story goes down using their remote.

Although this has also been done in some other streaming TV works like children's shows, the direct mention of a "Choose" book and its central place in the story set in 1984 for this movie was too much according to the brand owner of this book series.  That company is Chooseco, a company formed in the mid-2000s by one of the original creators of the series.  Chooseco has relaunched the Choose Your Own Adventure book series, selling approximately 15 million books since that time.

One legal theory that Chooseco sues Netflix on is trademark infringement, namely in the use of the Choose name in the story.  Chooseco argues that this was an unauthorized use of the Choose brand that capitalized monetarily on viewers' nostalgia for those books.  Another legal theory posited is trademark dilution.  To this end, Chooseco argues that the dark and sometimes disturbing content of Bandersnatch dilutes the goodwill for and positive associations with the Choose Your Own Adventure mark, thereby tarnishing the products in the marketplace.

Unfortunately for Chooseco, filmmakers like Netflix are often protected from such claims under First Amendment or Fair Use defenses.  Netflix is not actively misleading consumers by referencing the Choose books, and it serves value in explaining how the story works to the viewer.  Furthermore, relative to dilution, the Bandersnatch film may actually improve the market and demand for Chooseco's books.  It is unlikely that a company like Netflix will be held liable under such legal theories, but every judge views a set of facts differently, so we will see how this plays out in court.

That's of course if it make sit to court at all.  Despite Netflix being in a strong legal position, it may be a legal and PR win to settle this claim and take a license from Chooseco, cutting the bookmaker into a small amount of profits from this streaming film.  That's really what Chooseco is after, a slice of the pie, and it also won't be surprising if that's what happens.

The Bottom Line is, authors of creative works like films have a lot of leeway in using known items in the world to tell their stories, and trademarks do not generally stand in the way of such creative expression.  This is only in court because of the money involved, but it does pose an interesting question.  If you'd like to see Netflix win a motion to dismiss, turn to page 47.  If you'd instead like to see Chooseco win a jury trial, turn to page 83.

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Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy

Legal Geek No. 157: The Carlton Dance lawsuit against Video Game Makers

Now this is a story all about how, 

Copyright law got turned all upside down, 

And I'd like to take a minute

Just sit right there

I'll tell you how Carlton Dance is in a court near Bel-Air

Welcome back to Legal Geek. This week, as you might have guessed, we cover the lawsuit filed last month over the use of the Carlton Dance made famous in the 90s TV show The Prince of Bel-Air in two highly popular video game franchises.

https://archive.org/details/LegalGeekEp157 

Alfonso Ribeiro is the actor who brought the character of Carlton Banks to life, in The Prince of Bel-Air. One memorable moment from that show was when Carlton dances a jig to a Tom Jones tune, and the way he flaps his arms about became forever known as "the Carlton dance." Homage to this moment has been paid in many other television shows and other contexts, but Ribeiro now says the use of such a dance in two popular video games has crossed the line of copyright infringement.

His claims are against Epic Games, who makes Fortnite, and against Take-Two Interactive, who makes the NBA 2K series. In the case of Fortnite, a purchasable emote called Fresh allows characters to dance in the style of The Carlton Dance. Both of these video game franchises have one thing in common: they make boatloads of money. Hence the primary reason this lawsuit was filed, as Ribeiro seeks a cut of that pie based on the video game developers' decision to use The Carlton Dance as a fun side element of their games.

We discussed a few segments ago the types of rights Jet Li could have been protecting in his ninja moves when he declined to do a bunch of motion capture for the Matrix filmmakers two decades ago. Any copyright Ribeiro has in this dance is based on a similar theory of artistic performance and expression, although unlike many ninja moves, this dance does have uniqueness in the field of dancing. 

Ribeiro is not the only celebrity suing these game makers under this type of legal theory, as other lawsuits by Backpack Kid, inventor of The Floss dance, and by the rapper 2 Milly are also pending in California courts.  Plus, other celebrities like Mike Tyson have sued when iconic elements of their persona or appearance were used without compensation being paid by video game or movie makers.  But does the Carlton Dance lawsuit stand a chance?

There are a few potential hurdles to overcome for this lawsuit. First, Ribeiro performed the dance while working as a performer on a TV show, so there is an argument that any copyright in the dance could be a Work Made For Hire that belongs to the show's producers instead of him. The copyright may not be valid based on U.S. copyright Office guidance offered last year saying that it cannot register short dance routines consisting of only a few movements, even if novel or distinctive. While the Carlton Dance makes for a stronger case for copyright infringement than the other current suits, there are still a lot of potential fatal flaws in this legal case to expect Ribeiro to succeed on the merits.

The Bottom Line is, once again, where there's a lot of money being made, more attention and lawsuits will follow to try and share in the wealth. There's no doubt these video game developers and others who have incorporated these dance moves before them should have attributed credit and possibly paid a small license fee to include these add-ons, especially when they are paid add-ons like in Fortnite. But the moral right thing to do is not always what is legally required, and while The Carlton Dance makes a better case than most, I suspect the court will tell Ribeiro "yo homes smell ya later" at the end of the process.

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Do you have a question? Send it in!

Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy