Netflix has failed in its attempt to dismiss a $25m lawsuit from Choose Your Own Adventure publishers Chooseco over "Black Mirror" episode "Bandersnatch".
The Vermont-based publisher claimed last January the Charlie Brooker-penned programme had infringed on its copyright. "Bandersnatch", which allowed viewers to make choices for its protagonist, Stefan, included a sequence where Stefan said his work was based on "Bandersnatch... a Choose Your Own Adventure book."
Chooseco argued the film was a "misappropriation" of its mark and, because of the film’s adult nature, was "likely to cause significant damage".
In a bid to dismiss the case, Netflix lawyers had argued the phrase is common and simply "a reference to the book’s narrative device" and said it was protected under the First Amendment for fair use of the phrase.
But, this week, US District Court Judge William Sessions said the case could not be dismissed. He said: "Here, the protagonist of 'Bandersnatch' attempts to convert the fictional book Bandersnatch into a videogame, placing the book at the centre of the film’s plot. Netflix used Chooseco’s mark to describe the interactive narrative structure shared by the book, the videogame, and the film itself. Moreover, Netflix intended this narrative structure to comment on the mounting influence technology has in modern day life. In addition, the mental imagery associated with Chooseco’s mark adds to 'Bandersnatch's' 1980s aesthetic."
He went on: "The protagonist in 'Bandersnatch' explicitly stated that the fictitious book at the center of the film’s plot was a Choose Your Own Adventure book. In addition, the book, the videogame, and the film itself all employ the same type of interactivity as Chooseco’s products.
"The similarity between Chooseco’s products, Netflix’s film, and the fictious book Netflix described as a Choose Your Own Adventure book increases the likelihood of consumer confusion."