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.
LINK
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.
----------------------------------
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
No comments:
Post a Comment