Disappointing: Netflix Decides To Settle With Chooseco LLC Over 'Bandersnatch' Lawsuit
from the sigh dept
Well, it's been quite a stupid and frustrating run in the trademark lawsuit between Netflix and Chooseco LLC, the folks behind Choose Your Own Adventure books from our youth. At issue was the Black Mirror production Bandersnatch, in which the viewer takes part in an interactive film where they help decide the outcome. The main character is creating a book he refers to as a "choose your own adventure" book. Chooseco also complained that the dark nature of the film would make the public think less of CYOA books as a result. Netflix fought back hard, arguing for a dismissal on First Amendment grounds, since the film is a work of art and the limited use or reference to CYOA books was an important, though small, part of that art. The court decided that any such argument was better made at trial and allowed this madness to proceed, leading Netflix to petition for the cancellation of Chooseco's trademark entirely. This story all seemed to be speeding towards an appropriately impactful conclusion.
But reality has apparently turned us to the wrong page of the story. Netflix and Chooseco have reached a settlement, predictably short on details save for one very specific area.
On Monday, at a status conference before U.S. District Court Judge William Sessions III, the parties revealed that they had reached a settlement. While terms weren't released, the parties did tell the judge of one slightly unusual condition — the judge's February 2020 opinion denying Netflix's dismissal motion would have to be vacated. Sessions agreed to the demand. He chose to pretend he never questioned whether Netflix's film was explicitly misleading.
I'll admit that last bit has me a bit flummoxed. I haven't run into this sort of thing previously, where a case is settled and a previous order by a judge refusing dismissal of said case is vacated. I have pinged a couple of lawyers and have gotten mostly shrugs. The most I can say about it from digging around is that Netflix may not have wanted some precedent-setting ruling like this officially on the books for one reason or another.
The rest of the settlement details are not for public consumption. Without those details, it's difficult to know just who won out here, though it's notable that Chooseco appears to be keeping, and even expanding, it's trademark rights on "Choose Your Own Adventure." I could speculate that the threat to the mark was enough to get the company to mostly back off Netflix.
But that's the frustration here, honestly. Netflix raised some important First Amendment concerns in its defense, concerns that deserve a day in court. For now, at least, this one dumb lawsuit is over.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 1st amendment, bandersnatch, black mirror, choose your own adventure, free speech, trademark
Companies: chooseco, netflix
Reader Comments
Subscribe: RSS
View by: Time | Thread
Already thought less of CYOA
As soon as I heard about the choose your own adventure folks sued Netflix, I went through my library and tossed the few books I kept from my childhood.
Since they choose to sue, I choose to dump their garbage... It was neat in a book form, but it wasn't exactly ground breaking ... my friends and I would make up different paths for other books when the characters were dumb...
yup... I think I hate the CYOA books ... ... so I'll throw it away!
[ link to this | view in thread ]
New meaning
CYOA...Cover Your Own Ass
[ link to this | view in thread ]
Oh no! You've chosen to pussy out and let a copyright bully walk all over you! You lose.
To redeem yourself and take another plan of attack, turn to page 43.
To give up and lose face forever, do nothing and watch your subscriber numbers fall. You really don't have any good content anyway.
[ link to this | view in thread ]
I highly doubt this case will move the needle on Netflix subscriber numbers in any meaningful way.
[ link to this | view in thread ]
Re:
Not this case by itself, no. But this is only a symptom of their behavior as is what has become of their library of content. They can't still be gaining subscribers at this point.
[ link to this | view in thread ]
Since we don't know the details of the settlement, here's my theory:
Netflix makes CYOA popular with the Black Mirror series.
CYOA feels wronged because they think Netflix didn't get permission to use their idea.
Neither side wants to create any official court precedent, so...
I'd be willing to bet Netflix starts making some officially-licensed CYOA movies or TV series, which is fun for viewers and a cut (of something) goes back to CYOA.
[ link to this | view in thread ]
The fact that you don’t like their content won’t move the needle, either.
[ link to this | view in thread ]
Re: Already thought less of CYOA
Yeah, that'll learn 'em.
[ link to this | view in thread ]
Re: Already thought less of CYOA
well i hope they weren't originals from before Chooseco bought the rights then.
[ link to this | view in thread ]
Turn to page 5 if you're confused how they can avail themselves of the courts then hiding the ending.
Turn to page 17 if you're wondering if you expect there to be CYOA series b/c RL Stein wanted to much cash.
Turn to page 42 If you were shocked, just shocked, that CYOA was still in business.
Turn to page 303 if you believe that IP is our most valuable asset.
Turn to page 543 if you wish you'd never heard about this.
[ link to this | view in thread ]
Re: Re:
"But this is only a symptom of their behavior as is what has become of their library of content"
No, it's probably just a sign that the interactive content isn't a major thing and it's far easier to settle for a very minor part of their content than continue lawsuits that might affect negotiations with other content.
As for their library, I always laugh at how narrow someone's tastes have to be to not find things worth watching. I barely have the time to catch up with the new releases every month, let alone dive into the back catalogue.
"They can't still be gaining subscribers at this point."
Yes they are. Why would you assume they'd lose customers during a global pandemic, with a business model that's perfectly suited to that?
https://www.statista.com/statistics/250934/quarterly-number-of-netflix-streaming-subscribers-w orldwide/
[ link to this | view in thread ]
Re:
"I'd be willing to bet Netflix starts making some officially-licensed CYOA movies or TV series"
Maybe, but the alternative is that it was a flash-in-the-pan success that didn't really get any traction outside of Bandersnatch on Netflix or elsewhere, and the CYOA people were convinced that it wasn't going to be worth a drawn-out court battle to get what would have not been worth much financially than Netflix were offering to settle. Better to take the money, having shown you're willing to sue others if they try to do the same without licensing first.
[ link to this | view in thread ]
Re: Re: Re:
My tastes aren't all that narrow. But I've been a Netflix subscriber damn near since they began, certainly well before they offered streaming services. I've seen pretty much everything they've ever offered that was at all interesting and plenty more that wasn't. Over the years their catalog has suffered greatly due to studios not renewing contracts so they can start up their own streaming services. Netflix had to start producing their own content just to be able to offer anything new. Most of that is foreign which in and of itself is not a bad thing but I do get tired of reading subtitles.
We also subscribe to Hulu+ and Amazon Prime but have the same thoughts about them. The problem is only made worse by this pandemic which has prevented a lot of new content from being made plus now being that much more dependent on streaming for entertainment.
I'm glad you're able to always find something to watch. Envious even. If you're into drama or horror you're probably set for life. Sadly I'm not into either and I know I'm not alone. Friends and family all feel the same way and there are even memes about this topic. The splintering of the streaming market hasn't really worked out well for anyone except maybe Disney.
[ link to this | view in thread ]