3C is fair use, too
By Marie-Andrée Weiss
David Adjmi (Plaintiff) is the author of 3C, a work for the stage based on the successful television show Three’s Company, a television show which ran to great success from 1977 to 1984. Defendant DLT Entertainment Ltd. owns Three’s Company’s copyright.
3C played Off Broadway in June 2012, which led to DLT sending Plaintiff a letter, asking him to cease further performances. Plaintiff had offers to license his play and to have 3C included in a book, but could not do so because of litigation risk, and thus filed a complaint on January 2014 seeking a declaratory judgment that 3C did not infringe Defendant’s copyright in Three’s Company. He argued that his use of Three’s Company is a parody and a criticism of the television show and as such is protected by fair use.
On March 31, 2015, Judge Loretta Preska of the Southern District of New York (SDNY) issued an opinion granting Plaintiff’s motion. The case is David Adjmi v. Dlt Entertainment Ltd., 14 cv.0568.
Three’s Company is a comedy, featuring three roommates, two women and a man, sharing an apartment in California. One roommate is Chrissy, a blonde secretary who is the daughter of a minister. Another roommate is Janet, a brunette working as a florist. The male roommate, Jack, is a chef-in-training who pretends to be gay so that the landlord lets him share the apartment with two women, a situation which allows for much misinterpretation and innuendo. Although the general tone of the show is comedy, it nevertheless touches upon some serious issues, such as the place of women in the workplace, sexual harassment and homophobia. Also, as noted in Plaintiff’s complaint, the show reinforced some stereotypes, such as homosexual men being effeminate or older women being the object of ridicule for wanting to have a sex life.
3C is set in the Seventies and features a man, Brad, a Vietnam war veteran training to be a chef, who shares an apartment with two women, Linda, a brunette florist, and Connie, a blonde daughter of a minister. However, Brad, who is presented as homosexual to the landlord so that he can share the apartment with the two women, really is a closeted homosexual, secretly in love with his friend Terry. The two women have serious issues such as lack of money and self-loathing, and have experienced sexual assaults, even rape. The landlord’s wife is affected with serious anxiety and the landlord is a homophobic man, abusive to women, who even sexually assaults Linda during the play. The show ends with Brad telling Terry that he is homosexual and that he loves him. He starts crying and the stage goes dark.
3C is a parody of Three’s Company
Plaintiff described his work in his complaint as an “original work for the stage that tells its own story with its own characters but employs elements of the iconic series Three’s Company for the purposes of parody and criticism.” While Judge Preska found 3C to have copied original elements of Three’s Company, she did not find this to be an infringing use as it was protected by fair use.
Fair use is an affirmative defense to a copyright infringement claim. It is codified in Section 107 of the Copyright Act, which provides four factors courts may use to determine if a particular use is fair: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used and (4) the effect of the use on the market. Judge Preska examined these four factors in turn.
Purpose and character of the use
While the commercial nature of 3C weighed against a finding of fair use, the court nevertheless found the first factor to weigh “heavily” in Plaintiff’s favor, as 3C did not merely supersede Three’s Company, but is instead a transformative work, which the Supreme Court found in its seminal fair use case, Campbell v. Acuff-Rose, to be “at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright” (Campbell, at 579). Campbell was a parody case, and the Supreme Court found parody to be a form of criticism, which is one of the categories recognized by Section 107 as being protected by fair use. The Supreme Court described parody as “the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works” (Campbell, at 580), and noted that “a parody’s commercial character is only one element to be weighed in a fair use enquiry” (Campbell, at 572).
While Judge Preska found 3C to copy the plot, characters, sets, and even some scenes of Three’s Company, it also found it to have created “new information, new aesthetics, new insights and understanding,” quoting the Second Circuit 1998 Castle Rock Entm’t v. Carol Publ’g Grp., Inc. case. For the SDNY, 3C is “an upside-down, dark version” of Three’s Company, further noting that the play deconstructs the television show and turns it “into a nightmarish version of itself,” using the familiarity of the show “as a vehicle to criticize and comment on the original’s light hearted, sometimes superficial, treatment of certain topics and phenomena” (SDNY Order p. 43). Judge Preska gave as an example the difference between Jack, a character who “serv[es] as a general source of comedy” and Brad, who grapples “almost the entirety of 3C… with his secret,” a treatment which “criticizes the happy-go-lucky treatment” of homosexuality by Three’s Company (SDNY Order p. 44). Judge Preska found 3C to be “a highly transformative parody of Three’s Company” and this determination “weigh[ed] heavily in favor of finding fair use” (SDNY Order p. 46).
Nature of the copyrighted work
The SDNY quoted again Campbell, where the Supreme Court noted that the second fair use factor is not likely to be of help in parody cases, “since parodies almost invariably copy publicly known, expressive works” (Campbell at 586). Therefore, even though this factor weighed in favor of Defendant, because the television show was “a creative, even groundbreaking, work,” this factor had less importance relative to the other three factors (SDNY Order p. 47).
Amount and substantiality of the portion used
“3C copies extensively from Three’s Company,” but parody must necessarily take enough of the original work as its “humor is entirely contingent on recognizable allusion to the original work” (SDNY Order p. 49). Also, the Second Circuit “has consistently held that a parody under the fair use doctrine is entitled to more extensive use of the original work than is ordinarily allowed under the substantial similarity test”(SDNY Order p. 49). Defendant argued that 3C had not only copied important elements of Three’s Company, but also minor elements which were not necessary to create a parody or to evoke the original work, such as the fact that one character is the daughter of a minister, another one is working in a florist’s shop, or the male roommate is training to be a chef. For Judge Preska, the use of these “metaphorical appendages” weighed against a finding of fair use. However, as “the Supreme Court set a floor, not a ceiling… [which] is considered in light of the first and the fourth factor” in Campbell (SDNY Order p. 51), and because the Supreme Court noted that “the parody must be able to ‘conjure up’ at least enough of the original to make the object of its critical wit recognizable” (Campbell at 558), Judge Preska found the third factor to be “of comparatively lesser importance.”
The effect on the potential market
Defendant had argued that 3C had diminished the market for potential stage adaptation of Three’s Company, and that it fulfilled the same market demand as the original work. These arguments did not convince Judge Preska, who found instead that 3C is not meant to be a sequel of the original work, but instead deconstructed the television show. As such, it is not a potential market substitution for the original work and the fourth factor thus weighed in favor of fair use. Indeed, the Supreme Court had noted in Campbell that parody, as a criticism of the original work, may very well be so successful as to suppress further public demand for the original work.
Judge Preska concluded that 3C was a fair use of Three’s Company, as it is “a highly transformative parody of Three’s Company… [and] a drastic departure from the original that poses little risk to the market for the original” (SDNY Order p. 55). She concluded that copyright law “is designed to foster creativity… The law is agnostic between creators and infringers, favoring only creativity and the harvest of knowledge.”