It’s inevitable that artistic works of art reference other works, particularly in our present nostalgia-fueled moments. Usually it’s just an homage, but more and more you see things directly referenced, things that evoke a time and place and experience in our lives. And usually it’s fine, from a legal perspective; most studios and creators are smart enough to know what they need to license, or the rules regarding fair use. But what happens when a work is built entirely around the precept of another property?
If you follow such things, you might remember the buzz created by Netflix’s Black Mirror releasing its film Bandersnatch: an interactive, choose-your-own-adventure style story where the audience determined the outcome of what they saw based upon choices they made. It was a big step in interactive storytelling, at least in the realm of streaming (video games are nothing but interactive storytelling.) It was also running afoul of a long-standing book series, if the allegations in a recent lawsuit are to be believed.
Netflix has just lost its effort to have a $25 million lawsuit brought by Chooseco, LLC, the publisher of the Choose Your Own Adventure book series, dismissed in federal court. Chooseco brought the suit in response to not only the similarity in concept between the books and Bandersnatch, but the fact that the book series is referenced in the movie as the basis for a Choose Your Own Adventure-type video game the main character was working on in the choose-your-own-adventure film. (All very meta, I know.)
Chooseco’s suit further claimed that Netflix attempted to license the book series’ movie rights before striking out to do Bandersnatch on their own. In not only borrowing the books’ structure but also using their mark in the film, Chooseco claims that Netflix has created confusion as to the association of the brands.
Netflix, as would be expected, denied any such misuse, and asserted as a defense the “Rogers test,” wherein trademarked works can be references within other works so long as it has some relevance and is not misleading as to the source of the work. It’s an argument that U.S. District Court Judge William Sessions does not accept fully, it would seem; while agreeing that Bandersnatch is an artistic work and that the use of the Chooseco trademark has artistic relevance, he did not agree to dismiss the case without exploring the question of whether the movie is intentionally misleading.
Thus Netflix has to settle in for another round in the court system, when $25 million seems like a drop in the bucket of their annual spending. (Because it is.) The case might eventually settle, but it does raise interesting questions as to the use of marks in other artistic works. If a more strict interpretation comes down and is upheld, it could mean a serious drop in brands and products referenced in other works, which, for those suffering from nostalgia fatigue, might be a much-needed break.
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