Adjmi had been contacted in 2012 by Kenyon & Kenyon, the lawyers representing DLT Entertainment, who sent a cease-and-desist letter citing copyright infringement, listing 17 points of similarity between the play and the sitcom. 3C uses a scenario similar to "Three's Company," but explores darker implications of American culture in that time. The now-closed production ran June 6-July 14, 2012, at the Rattlestick Playwrights Theater.
DLT felt Adjmi's play was damaging to the property, which has a life in syndicated reruns.
However, in a 56-page decision handed down this week, Judge Loretta A. Preska, Chief United States District Court Judge in the Southern District of New York, wrote, "Adjmi wishes to authorize publication of '3C' and licensing of the play for further production and therefore brings this action seeking a declaration that '3C' does not infringe DLT’s copyright in Three’s Company. Adjmi’s motion is GRANTED…”
Judge Preska's decision affirmed that parody constitutes a fair use of copyrighted material under existing laws: “There is no question that '3C' copies the plot premise, characters, sets and certain scenes from 'Three’s Company.' But it is well recognized that '[p]arody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s. . .imagination.' Campbell, 510 U.S. at 581. The 'purpose and character' analysis assumes that the alleged parody will take from the original; the pertinent inquiry is how the alleged parody uses that original material."
To constitute parody, new material must make what is known as "transformative use" of the copyrighted material. And the decision clarifies that 3C indeed made just that kind of "transformative use": “Despite the many similarities between the two, '3C' is clearly a transformative use of 'Three’s Company.' '3C' conjures up 'Three’s Company' by way of familiar character elements, settings, and plot themes, and uses them to turn 'Three’s Company’'s sunny 1970s Santa Monica into an upside-down, dark version of itself. DLT may not like that transformation, but it is transformation nonetheless.” Citing previous cases Judge Preska summed up by saying, “The play is a highly transformative parody of the television series that, although it appropriates a substantial amount of 'Three’s Company,' is a drastic departure from the original that poses little risk to the market for the original. The most important consideration under the Section 107 analysis is the distinct nature of the works, which is patently obvious from the Court’s viewing of 'Three’s Company' and review of the '3C' screenplay-materials properly within the scope of information considered by the Court in deciding this motion on the pleadings. Equating the two to each other as a thematic or stylistic matter is untenable; 3C is a fair use 'sheep,' not an 'infringing goat.' See Campbell, 510 U.S. at 586."
Special thanks to blogger and director of the Arts Integrity Initiative at the New School for Drama Howard Sherman for making passages from the decision available to Playbill.com.
Background
DLT lawyers had demanded that the production not be extended past its July 14, 2012, closing date, that no future productions could be performed and the script could not be published. Box-office figures were also requested in addition to a written agreement from Adjmi that he would comply with their demands.
Adjmi told the Times in 2012 that he estimated he would make roughly $2,500 in royalties from the five-week Off-Broadway run and could not afford to seek legal counsel. 3C concluded its run as scheduled, but Adjmi never signed or sent any of the written statements requested by Kenyon & Kenyon.
A representative for the Dramatists Guild, the trade association that represents playwrights, composers and lyricists, told Playbill.com, "The right of authors to make fair comment on pre-existing work (whether through parody or other forms of fair use) is a First Amendment safety valve in the copyright law, and one we wholeheartedly support, as do the courts. If the author contacts us, we will discuss the issue with him and see how we can help."
They also said help may be available to Adjmi via the Guild's newly founded Dramatists Legal Defense Fund, a "non-profit charitable organization which seeks to protect the public's right to a robust public domain, by dealing with issues of censorship and copyright through education and advocacy."
Adjmi's also plight caught the ear of those within the theatre community, who cited the actions of DLT Entertainment as litigious bullying, stating that Adjmi's play fell under the umbrella of parody — which is protected under law. Other playwrights have explored similar territory, including Bert V. Royal's Dog Sees God, which centers on the teenage years of the Peanuts gang, as well as the popular Off-Broadway musical spoof Forbidden Broadway.
Tony Award-nominated Other Desert Cities playwright and "Brothers and Sisters" creator Jon Robin Baitz penned an open letter detailing why it was important that members of the theatre community rally behind Adjmi's work and artists' First Amendment rights, calling 3C "clearly and patently and unremittingly parody."
Rattlestick's marketing of the play never drew any direct links to 3C and "Three's Company," describing the play as being "inspired by 1970s sitcoms, 1950s existentialist comedy, Chekhov, and disco anthems," adding that it was a "terrifying yet amusing look at a culture that likes to amuse itself, even as it teeters on the brink of ruin."
"I am not a lawyer, but David may need one, and I am currently investigating the willingness of a respected First Amendment firm to take this case on pro-bono," Baitz stated in his letter. "That an Off-Broadway playwright should be bullied by a Wall Street law firm over a long-gone TV show, is, in and of itself, worthy of parody, but in fact, this should be taken seriously enough to merit raising our voices in support of Adjmi and his play, which Kenyon & Kenyon is insisting be placed in a drawer and never published or performed again. Whether one appreciates the work or not is immaterial; the principle at stake here is a basic one. Specious and spurious legal bullying of artists should be vigorously opposed, and that opposition must begin first and foremost with all of us in the New York Theatre community."
Among the individuals to add their names in support are Stephen Sondheim, Tony Kushner, Lincoln Center Theatre artistic director Andre Bishop, Joe Mantello, Terrence McNally, Kenneth Lonergan, John Guare, Terry Kinney, Stephen Adley Guirgis and John Patrick Shanley.
Rattlestick Playwrights Theater, piece by piece productions and Rising Phoenix Repertory, which produced the premiere, issued the following statement: "We cannot address the legal issue, but we can say that we believe in 3C — the play, cast, and crew — otherwise we would have never produced it. We always sought to keep the production going for its full, scheduled run. We were able to make that happen and the play received some wonderful reviews and played to sold-out houses. We love and believe in 3C and David's work and always will."
You can read Baitz's letter here.
