David Adjmi’s Parody “3C” Wins Fair Use Legal Victory Against Owner of “Three’s Company”
3C versus Three’s Company
David Adjmi’s 2012 play, which ran for two months off-Broadway, features “Brad,” a guy who claims to be gay so a bigoted landlord will allow him to live with two women. But, unlike his television counterpart, Brad IS gay, and Adjmi’s work takes a more serious look at the set-up, originally and famously played by John Ritter for maximum comedic effect. In his lawsuit, Adjmi said that his work is a commentary on the “ways the television show presented and reinforced stereotypes about gender, age and sexual orientation.”
After receiving a cease and desist letter from DLT Entertainment, the owner of Three’s Company, Adjmi sought a declaratory relief ruling that his play did not infringe DLT Entertainment’s copyright in Three’s Company. On March 31, 2015, U.S. District Judge Loretta Preska agreed. In a detailed and blistering 56-page ruling, Judge Preska ruled that 3C is a permissible parody of Three’s Company.
Copyright Law and the Fair Use Doctrine
Copyright is the legal right of an author (or owner) of the work to commercially exploit that work. That legal right also includes the protection against the exploitation of the work by others who do not hold the right (i.e., copyright infringement). However, the monopoly held by the author must have limits and the fair use doctrine is the most well-known and widely used.
Judge Preska notes that the fair use doctrine is the courts’ way of delineating where a “monopoly ends and new creation begins.” The doctrine of fair use was codified by Section 107 of the Copyright Act of 1976, which lists four non-exclusive factors that must be weighed to determine fair use.
Those four factors are:
(1) The purpose and character of the use;
(2) The nature of the copyrighted work;
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) The effect of the use upon the potential market for or value of the copyrighted work.
In its definitive statement on the fair use doctrine, the Supreme Court noted in 2 Live Crew’s “Oh, Pretty Woman” parody case that fair use “calls for a case-by-case analysis” with each of the four factors “to be explored, and the results weighed together in light of the purposes of copyright.”
Analysis of the Fair Use Factors
On the first factor, purpose and character of the use, Judge Preska finds that while the play is “undoubtedly a commercial product”, it is also “transformative” because it takes objects from the original work but adds something new. The analysis of the transformative nature of the new work turns on the answers to several questions:
(1) Does the new work add something new to the original work?
(2) Does the new work have a further purpose or different character than the original? Or
(3) Does the new work alter the original work with new expression, meaning or message?
“Despite the many similarities between the two, 3C is clearly a transformative use of Three’s Company.” In describing the play’s transformation of the original work, Judge Preska writes, “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 a transformation nonetheless.”
In rebutting DLT’s argument that 3C represents only minor extensions of the pre-existing themes in Three’s Company, the judge notes that “3C is hardly a ‘repeat’ of Three’s Company; it is a deconstruction of it. The former has turned the latter into a nightmarish version of itself. … Three’s Company may have been ground-breaking and heralded in retrospect for raising homosexuality as a theme, but 3C criticizes the happy-go-lucky treatment of that issue.”
The second prong of the analysis looks at the nature of the original work to focus on the value of the materials used in the parody. However, Judge Preska quotes the Supreme Court in noting that this factor does not “help much in separating the fair use sheep from the infringing goats in a parody case, since parodies invariably copy publicly known, expressive works.”
For the third factor relating to the amount and substantiality of the portion used, the result rests on whether the amount used in relation to the original work as a whole is reasonable when analyzing the purpose of the copying. The inquiry for this factor “seeks to draw a line between taking enough to evoke the original and excessive appropriation.”
Judge Preska notes that courts have “consistently held that a parody under the fair use doctrine is entitled to more extensive use of the original work” in order to effectively conjure up the original work so that the object of the parody is recognizable. Audiences need to recognize a resemblance between the two works to appreciate the author’s critical points.
While Judge Preska finds that “3C copies extensively from Three’s Company,” she also notes that the play “is a highly transformative parody of Three’s Company.” This finding weighs in favor of fair use because the transformative nature of the play outweighs the elements taken from the television show.
On the fourth factor, Judge Preska does not see 3C having a negative effect on the market for Three’s Company because “3C is not a potential market substitution for Three’s Company.” Therefore, the fourth element weighs in favor of a finding of fair use.
In ruling for Adjmi, Judge Preska calls the distinct nature of the works “the most important consideration” under a fair use analysis, and concludes that “3C is a fair use ‘sheep,’ not an ‘infringing goat.’”
This ruling is a great result for artists who use parody as a means of critical expression.
This decision, along with previous court rulings, makes a clear distinction between works that are truly transformative, like 3C, and those that seek the protection of fair use by merely adding a new gloss on a familiar work without “criticizing or commenting on its fundamental theme and spirit.” Courts have made it clear that the latter works will not be found to be parodies worthy of fair use protection.
While copyright law is designed to foster creativity, it must do so by managing the original author’s monopoly so that it does not become a moratorium on the creative expression and ideas of future authors.
Toni Y. Long, Esq.
This article was also featured in Legal Ink Magazine.