Pick Thine Own Story-Exploit
February 28, 2020 9:45 AM   Subscribe

Netflix is asking a court to cancel the Choose Your Own Adventure trademark owned by publishing company Chooseco, in response to Chooseco's lawsuit against Black Mirror: Bandersnatch. "In contemporary parlance, any situation that requires making a series of unguided choices, or that provides an opportunity to go back and re-make a series of choices that turned out badly, is referred to as a ‘Choose Your Own Adventure," argued Netflix.
posted by adrianhon (34 comments total) 10 users marked this as a favorite
 
Someone's writing a book on CYOA as neoliberalism indoctrination propaganda. (Not actually something I agree with.)
posted by praemunire at 10:04 AM on February 28, 2020


This is exactly why companies like Chooseco have to go after all the small fish. It's pretty apparent that they have been enforcing their ownership of this specific phrase.

FWIW, it seems that others have found Chooseco to be pretty even-handed about this. The itch.io article specifies that the take-downs were being handled without ill-will. And the amazing Finish It! podcast (previously) also were contacted by Chooseco lawyers and per their account dealt with quite reasonably.

My sympathy for Netflix on this one is zero. They should pay up and be more careful in the future (or even team up and produce more family friendly version of similar content).
posted by meinvt at 10:26 AM on February 28, 2020 [17 favorites]


It's so weird that Netflix is choosing to die on this particular trademark hill, when it's obvious that the only reason they want to use the literal phrase "Choose Your Own Adventure" is to specifically capitalize on the original CYOA books' continuing popularity and link the episode to the same early '80s interactive gaming milieu in the books had their heyday.

For what it's worth, that same time period had no shortage of ongoing and successful CYOA imitator series, like Fighting Fantasy, or Which Way Books, or Decide Your Destiny, and Endless Quest, or Time Machine, or Wizards, Warriors & You. All of whom figured out how to take advantage of the CYOA play mechanics (which can be freely imitated without fear of copyright/trademark infringement) and promote themselves as CYOA derivatives without referring to the actual CYOA trademark.

If Netflix's marketing department (lol) had any brains or appreciation of the format, they'd have come up with their own branding ("Find Your Fate" or "Click-A-Choice", etc.) that was reminiscent enough of CYOA without employing that branding directly.
posted by Strange Interlude at 10:47 AM on February 28, 2020 [25 favorites]


"Choose Your Own Adventure" has become genericized. This isn't even like Kleenex or Xerox where people know it's a brand.

If you'd asked me prior to seeing this, I'd assume it was a genre like "role-playing game" or "platformer."

The genre is apparently called "gamebook," but I've never heard them called anything but "choose your own adventure" books.

Additionally, how many viewers watched Bandersnatch and thought "wow, so weird that they picked a particular brand of gamebooks?" Who thinks the writers even knew it was a trademarked brand?

I'm not one to sympathize too much with a big company, but this is stupid.
posted by explosion at 10:49 AM on February 28, 2020 [5 favorites]


CYOA isn't a generic term; I played several of the other variants, and was always aware that CYOA was one particular brand. (I liked the Endless Quest books better.)

Netflix can either fork over (a lot of) money for a license, or rename their animated visual novels something else.
posted by ErisLordFreedom at 10:54 AM on February 28, 2020 [14 favorites]


Yeah, I don't think it's been genericized at all. "Choose Your Own Adventure", to me, immediately calls to mind those thin white paperbacks with the red logo across the top. I've heard the term used to describe the concept of other works, but always in a "you know, kind of like those CYOA books" context. And it sounds like CYOA has been pretty aggressive (though not necessarily hostile) about protecting their trademark. I think Netflix's suit will be laughed out of court.
posted by Roommate at 11:00 AM on February 28, 2020 [19 favorites]


Additionally, how many viewers watched Bandersnatch and thought "wow, so weird that they picked a particular brand of gamebooks?"

I thought it was weird.
posted by Automocar at 11:05 AM on February 28, 2020


Additionally, how many viewers watched Bandersnatch and thought "wow, so weird that they picked a particular brand of gamebooks? Who thinks the writers even knew it was a trademarked brand?

I have no idea how old you might be, but speaking as a child of the '80s who was wild about the series and its imitators, CYOA was absolutely a known and distinct brand of book. They were popular enough that the brand name ended up becoming a metonym for all interactive fiction books, but the brand was unmistakable even at the time.

The branding is recognizable enough 40 years later that there is now a series of (officially-licensed) boxed board games based on the series, complete with the familiar logo and cover illustrations. Hell, one of the best-loved films of 2019 named one of its characters after the title character from one of the mainline CYOA books.

When it came up in the Bandersnatch episode, I had assumed that Netflix must have asked permission to use the trademark, but apparently not.
posted by Strange Interlude at 11:08 AM on February 28, 2020 [8 favorites]


I had assumed that Netflix must have asked permission to use the trademark, but apparently not.

They did just that but could never come to terms and went ahead anyway.
posted by sjswitzer at 11:10 AM on February 28, 2020 [3 favorites]


The question of whether "Choose Your Own Adventure" has become genericized is a factual one to be determined at trial.

I suspect that those saying it's obviously not generic are of a similar age to me and recall reading the specific books Roommate describes when we were younger, and the competitor series from that period Strange Interlude lists. I know I read huge quantities of all of those as a kid. I would not be surprised, however, if to younger people or people without the experience of reading those books at that time it is just a generic term for those kinds of structured stories.

There are probably people still around who remember when the terms aspirin, thermos, escalator, or laundromat referred to specific products and not their competitors or the general thing itself.
posted by star gentle uterus at 11:10 AM on February 28, 2020 [7 favorites]


Huh, I never expected Metafilter to defend a trademark of all things. What's next, arguments in favor of software patents?

I had no idea the phrase CYOA was associated to a company, I have always seen it used to refer to the format, not whatever old books it was originally from. Is Chooseco going to go against reddit or all the games made with twine next?
posted by simmering octagon at 11:15 AM on February 28, 2020 [3 favorites]


There has been a history of bizarre legal drama over CYOA, including the time someone unknown got Wikipedia to take the extraordinary step of an "office action" to lock and purge the "Choose Your Own Adventure" page and have it rewritten by trusted authors after what was described at the time as complicated off-wiki negotiations. Last fall, Chooseco threatened legal action against the event now known as "CYOA: sober queer+LGBT dance party." There's an odd split between Montgomery's Chooseco, which owns the trademark, and Edward Packard, who has reissued some of his books as "U-Ventures: Decide Your Own Fate!" Chooseco has sent legal threats over sports blog posts and another interactive sports blog post and improv nights.

Entirely separate from their case against Netflix, I don't think they've been even-handed at all.
posted by zachlipton at 11:21 AM on February 28, 2020 [4 favorites]


I read the academic article linked in Slate and it's really interesting, and, I think, points out why I as a child in the 80s did not adore those books so much, though probably subconsciously. I'm not a white boy, I'm sensitive to "you get to choose [from these choices that I preselected for you] and therefore all consequences are your fault" and I'm not a risk taker and don't always care to pretend to be one.
posted by jeather at 11:22 AM on February 28, 2020 [4 favorites]


Huh, I never expected Metafilter to defend a trademark of all things.

Well for me it's more that a big company thinks it can ignore trademarks because it can pay more for lawyers leaves a bad taste in my mouth.
posted by Zalzidrax at 11:24 AM on February 28, 2020 [17 favorites]


Netflix should just flip ahead and see which choice has them winning the lawsuit, and which one has them dying at the bottom of a cliff.
posted by mittens at 11:30 AM on February 28, 2020 [31 favorites]


What even are the rules for using trademarks in works of fiction? If I publish a book and slap "Choose Your Own Adventure" on the cover, yeah, I'm absolutely violating their trademark (and trying to confuse consumers). But if I make a TV show in which a fictional CYOA book appears, who's confused? Did Netflix publish a tie-in book for the episode?
posted by The Tensor at 11:33 AM on February 28, 2020


How big is this company anyway? Doesn’t Netflix have enough money to just buy them? (I realize private, etc., but still “This is a problem that money can solve.”)
posted by Huffy Puffy at 11:34 AM on February 28, 2020


Also, I'm flabbergasted to discover that Edward Packard and R. A. Montgomery are real people and not house names.
posted by The Tensor at 11:35 AM on February 28, 2020 [7 favorites]


Netflix should just flip ahead and see which choice has them winning the lawsuit, and which one has them dying at the bottom of a cliff.

But what if the "winning the lawsuit" ending is one that's only accessible by cheating and has no pages leading to it?!

(Never mind, it's 2020, I'm sure they'll find a way.)
posted by andrewesque at 12:13 PM on February 28, 2020 [2 favorites]


I'm not with Netflix or Chooseco here, but in good conscious I have a hard time ever seeing the enforcement of copyright and trademark as anything approaching "good." Even in context of hellscape copyright Earth, CYOA is too broad an idea for anyone to own, so screw them. When I think of "Choose your own" my first thought is to SomethingAwful CYOA threads, then to cheap kids books and of no particular brand. If there's an official brand out there, it hasn't made enough purchase to hold it's ground. And again, just fuck copyright and trademark law to begin with, it's truly the mark of a society that has failed itself completely.
posted by GoblinHoney at 12:20 PM on February 28, 2020 [1 favorite]


But if I make a TV show in which a fictional CYOA book appears, who's confused?

This is what happened. The rule (super-super-generally-speaking, of course) is that you can use a mark in this way "where the title does not explicitly denote authorship, sponsorship, or endorsement by the [mark-owner] or explicitly mislead as to content." I was trying to find a public link to one of the amici briefs on this, but no immediate joy.

I do not understand why people read a description, especially a brief one, of one side of a legal dispute and assume that's a reasonably comprehensive summary of the issues at play. Not complaining about the FPP, just...it will never do you harm to assume that there's probably another side to the story, especially when we're talking about corporation v. corporation. It requires very little imagination to figure out the general problem with objecting to referring to your trademark in the course of someone else's fictional work.
posted by praemunire at 1:06 PM on February 28, 2020


I can see a commercial basis for their argument, if that's the sort of thing that floats your boat, but hinging it on the notion that people might get too dark an idea of a product that I remember as basically killing you half the time seems a bit of a reach.
posted by 99_ at 1:31 PM on February 28, 2020


Neil Patrick Harris sought and received permission from Chooseco for his Choose Your Own Autobiography, in 2014, though I'd like to know more about any financial terms.
posted by Iris Gambol at 1:36 PM on February 28, 2020 [1 favorite]


Maybe there's no difference in a legal sense, but I think there's a difference between naming your product and referencing a brand name as a generic.

Like, someone can't sell "thermoses" because Thermos is a brand. Call it a "vacuum flask" on your packaging. But a TV show can have a character say, "hand me my thermos," even if it's another brand.

The Bandersnatch reference is of the latter sort. If Netflix were marketing the episode itself as a "choose your own adventure" episode, it'd be of the former sort.
posted by explosion at 3:43 PM on February 28, 2020


(The episode itself WAS "CYOA"...using the remote control to make choices.)
posted by sexyrobot at 3:59 PM on February 28, 2020


Right, but like explosion said, it's not like Netflix advertised the episode as CYOA in a way that would cause anyone to believe the episode was associated with the publisher of the books. CYOA wasn't part of the title or anything (they said they previously cent a C&D to Netflix over the marketing of some other show though that's not part of the lawsuit). The episode was a work of interactive fiction, and it contained a fictional book that a character described as a "choose your own adventure book" in a line of dialog (see page 7 in the complaint).

This isn't something where Netflix came in and explicitly appropriated the CYOA brand to promote the show. This is equivalent to a movie where a fictional character makes reference to reading a fictional Nancy Drew or Hardy Boys book. Nobody watching the episode is going to think "oh, I'm sure this was authorized by the publisher of Choose Your Own Adventure and therefore I will blame them for any complaints I have." And given how full of death the original books were, Chooseco's claims that that "association with this grim content tarnishes Chooseco's famous trademark" because Bandersnatch is too dark for Chooesco's audience of children are pretty funny.

I don't see why Chooseco should be entitled to tens of millions of dollars for a fictional mention inside the episode. If instead of the book, the episode had a shot of a kid reading a website called MetaFilter with a blue background and a line about "I saw this on MetaFilter," should MeFi sue for $25M?
posted by zachlipton at 4:56 PM on February 28, 2020 [4 favorites]


I have a cunning plan, m’lud....
posted by Huffy Puffy at 5:51 PM on February 28, 2020 [1 favorite]


Yeah, this is like Apple refusing to let "bad guys" use Apple products. Now you know.... If they're using an Apple product in TV/Movie ... they're the good guy. Only good guys use Apple. The bad guys have to use Microsoft or Samsung or HP or any other thing than Apple. Else... face lawyers.
posted by zengargoyle at 7:00 PM on February 28, 2020


You guys seem to have a very different take of Chooseco than the one I get.
posted by ckape at 8:35 PM on February 28, 2020 [2 favorites]


Yeah, this is like Apple refusing to let "bad guys" use Apple products. Now you know.... If they're using an Apple product in TV/Movie ... they're the good guy. Only good guys use Apple. The bad guys have to use Microsoft or Samsung or HP or any other thing than Apple. Else... face lawyers

Not speaking for my employer and my opinions are my own blah blah blah blah....

I too, read that article yesterday, and that's a case of (likely, I have no inside info, but this is how TV/Film production works in general) Apple not ponying up free devices when the person using said devices is "bad". Film/TV productions are more than welcome to go to the store and buy their own iPhones for the bad dude to use while crimeing. However, Samsung et al are more than happy to have the rapist/murderer/etc use their stuff, so they'll gift free shit to get it on screen. Hell, they might even pay for the privilege.

I mean, watch The Morning Show (an Apple TV+ Original™) to see all kinds of terrible people using Apple devices.
posted by sideshow at 9:10 PM on February 28, 2020 [1 favorite]


Cocky CYOA (Cocker Brands of Waitsfield, #1)
by Faleena Hopkins
posted by polytope subirb enby-of-piano-dice at 12:11 AM on February 29, 2020 [1 favorite]


In other news, Netflix is suing everyone who extends an invitation using the phrase "Netflix and chill" without actual plans to watch a show presented by and/or distributed by Netflix™.
posted by Joe in Australia at 5:23 AM on February 29, 2020 [2 favorites]


Lots of good takes here! I grew up in the 80s reading a bunch of official CYOA books but it never occurred to me it was a trademark, probably because I saw the same term used so often to describe other interactive fiction and games (and went on to do the same myself).
posted by adrianhon at 4:07 AM on March 1, 2020


If it's "just a random book inside the story, not meant to indicate it's an actual CYOA-brand book, no confusion is possible" - then why did Netflix try to negotiate for use of the name? The lawsuit only started after they failed to pay what the owners of the mark wanted.

Then their argument became, "What we're doing is totally legal because this isn't a valid trademark for this purpose; it's generic." I'm side-eyeing that quite a bit.

Note that AO3 didn't go to Disney and Paramount and Warner Bros to try to negotiate for the right to host Star Wars and Star Trek and Harry Potter fanfic. They said, "These works infringe on neither copyright nor trademark; we don't need any permissions."

If Chooseco had wanted just $2500 for the use of their brand name, Netflix would've paid, signed a contract, and we'd never have heard about this.

On the general subject of copyright & trademark law: They're intended to be business laws to prevent exactly this kind of thing. Copyright law is supposed to stop Random House from grabbing Macmillan's bestseller and raking in its profits, without the hassle of having to actually find a book people want to read. Trademark law is supposed to protect consumers from shoddy merchandise, or merchandise that doesn't do what they expected. Going after bloggers and indie game designers with an intended market of "maybe I'll sell 300 copies" is a waste of court time, but Netflix shouldn't be able to profit from a 40+ year old book series because the name got so big that everyone recognizes it.

Maybe the use is incidental enough that it's not infringing. Maybe the name is now genericized. Those are both details for the court to sort out. But the core of trademark law is: you don't get to say "My movie features a CYOA book" when it features "a book that kinda works like a CYOA book."
posted by ErisLordFreedom at 10:51 AM on March 2, 2020


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