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Netflix faces lawsuit over Black Mirror: Bandersnatch

Netflix is heading down a litigious path over Black Mirror: Bandersnatch.

A complaint was filed in Vermont federal court this morning by Chooseco, LLC, publisher of the Choose Your Own Adventure book series, against the streaming giant. The suit alleges that Netflix "intentionally and willfully used Chooseco's famous mark in order to benefit from the positive associations with — and nostalgia for — the brand by adults who read the series as youngsters," according to Deadline.

For the three or four people as yet unfamiliar with Bandersnatch, the feature-length episode is set in 1984, and deals with a young video game programmer named Stefan who pitches his demo for an adventure game based on a choose-your-own-adventure-style book of the same name to a successful game publisher. The episode requires viewers to make choices for Stefan as the story progresses — some relatively benign, others, not so much — and can play out in a wide variety of different ways depending on those choices. 

Chooseco's case hinges on Bandersnatch's very first scene, in which Stefan mentions his upcoming pitch to his father as he thumbs through the book. When Dad asserts that the book must not be very good, as Stefan is always "flicking backwards and forwards" through it, Stefan explains, "No, it's a choose your own adventure book." (It should be noted, however, that the book in question is decidedly not one of Chooseco's offerings, and isn't presented as such — Stefan seems to be using the phrase more as a general description.)

Moreover, Chooseco's filing revealed that as far back as 2016, Netflix had entered into discussions with the publisher over the possibility of obtaining a license that would have put them legally in the clear to use the "Choose Your Own Adventure" brand as a plot hook. 20th Century Fox is currently in talks with the publisher to develop an interactive series based on the property, according to The Hollywood Reporter. "Chooseco and Netflix engaged in extensive negotiations that were ongoing for a number of years, but Netflix did not receive a license," the complaint alleges. "On at least one occasion before the release of Bandersnatch, Chooseco sent a written cease and desist request to Netflix asking Netflix to stop using the Choose Your Own Adventure mark in connection with its marketing efforts for another television program."

Here, it's also important to note the fact that Netflix has not made use of the phrase "choose your own adventure" in any of its official marketing for Bandersnatch, although the episode has been referred to extensively in the press using that very phrase. Chooseco's complaint points to this fact as illustrative of its assertion that Bandersnatch has created confusion among viewers as to the extent of the affiliation between the episode and the iconic book series, thereby diluting its brand (which ceased publication in 1998).

If you ask us, Chooseco seems unlikely to prevail, although there is precedent here. In 2007, the publisher filed a similar suit against DaimlerChrysler for using the phrase in question in a marketing campaign for its latest Jeep line; that case was eventually settled out of court. As pointed out by THR, the central issue in this case will be whether or not Netflix intentionally misled viewers into believing that there was an explicit connection between Bandersnatch and the book series, which seems like it'll be a pretty steep hill to climb.

Chooseco's complaint alleges copyright infringement, as well as dilution and unfair competition. The publisher is seeking damages in the amount of at least $25 million dollars or the entirety of Netflix's profits from Bandersnatch, whichever is greater (although pinning down the exact dollar amount the streamer has made off the episode could prove problematic in and of itself, as part of the appeal of original content such as Black Mirror lies in its ability to drive new subscribers to the streamer). The publisher is also seeking "injunctive relief," meaning that — if the suit is ultimately successful — Netflix could theoretically be forced to pull the episode from its rotation.

Our inclination is to file this under "2019 Entertainment Lawsuits Most Likely to Be Thrown Right the Hell Out," although it's not outside of the realm of possibility that Netflix and Chooseco could arrive at an out-of-court settlement in much the same way that the publisher and DaimlerChrysler — whose use of the trademark was far more explicit, and directly tied to marketing — did over a decade ago. We'll be keeping a close eye on this story, however, because we'll be the first to admit that entertainment litigation of this nature is notoriously unpredictable. That is to say, there could be many branching paths here, each of which could lead to a much different conclusion to the case. It sort of reminds us of something, although we can't put our finger on exactly what that is at the moment.