What’s worse than sitting through seven episodes of Three’s Company? Reading a federal district judge’s summaries of them. And yet that CliffsNotes analysis, including delving into the cultural significance of the fluffy sitcom, takes up much of the 56-page opinion recently issued by Loretta Preska, Chief Judge of the Southern District of New York. In Adjmi v. DLT Entertainment, Ltd., the court held that plaintiff’s Off-Broadway play, 3C, is a fair use parody of the entire TV series.
Although styled as a Rule 12(c) motion for judgment on the pleadings, the voluminous exhibits to those pleadings included DVDs of all 9 seasons of the series (owned by DLT) as well as Adjmi’s script to 3C, curiously referred to as the “screenplay” throughout the opinion. Judge Preska is no stranger to parody cases, having written the opinion that was affirmed by the Second Circuit in Liebowitz v. Paramount Pictures, which held that a photo of a seemingly pregnant Leslie Nielson of The Naked Gun fame was a fair use parody of the famous Vanity Fair cover of a nude and pregnant Demi Moore.
For you younger readers, Three’s Company, which aired from 1977-1984, focused on Jack Tripper (John Ritter), who pretends to be gay so he can share an apartment with sensible brunette, Janet Wood (Joyce DeWitt) and ditzy blonde, Chrissy Snow (Suzanne Somers, the current TV twirler and former Mistress of the Thighmaster). Rounding out the cast were the nosy neighbor landlords, Mr. and Mrs. Roper.
The Court began its discussion, stating: “[t]he parties agree that 3C copies the plot, premise, characters, sets and certain scenes from Three’s Company.” The parties also agreed that, as in the TV series, the male lead in 3C is an aspiring chef, the blonde is the daughter of a minister and the brunette is a florist. At least the characters’ names are different in plaintiff’s play, although the Court sometimes mistakenly refers to the names of Three’s Company characters in its discussion of 3C. So, there’s undoubtedly access and an awful lot of substantial similarity, the basic elements of a copyright infringement action.
In ruling on the Rule 12(c) motions (plaintiff’s for declaratory judgment and DLT’s on its counterclaim for infringement), the Court stated that discovery, which had been stayed, would not be necessary. Indeed, the decision reads like one for summary judgment as Judge Preska took pains to point out that her opinion is based not so much on the pleadings themselves but on the “raw materials” of the Three’s Company DVDs and the 3C script.
As with any parody case, the Court’s analysis started with the seminal 1994 Supreme Court case, Campbell v. Acuff Rose, which held that 2 Live Crew’s use of a portion of the Roy Orbison hit, Oh, Pretty Woman in the band’s similarly titled song, Pretty Woman, constituted a fair use parody of the work as it only used so much of the original work as was necessary to comment on it. Following Campbell, the Court here went through a fairly rote review of the four fair use factors of Section 107:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
And as in Campbell, the Court focused most on the first factor and whether or not Adjmi’s use of the sitcom’s material was “transformative,” citing Judge Leval’s influential 1990 Harvard Law Review Article. As the Supreme Court stated, a use is transformative when “it adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.”
However, as I’ve written, the Seventh Circuit recently rejected the “transformative” analysis in fair use cases. In that case, Judge Easterbrook noted that any transformative use would constitute a derivative work, the authorization of which is the right of the copyright owner under Section 106(2) and that it’s best to stick with the four statutory factors.
So, how, exactly is 3C a transformative protected parody of Three’s Company? The main distinction is that in 3C, Brad, the male roommate, is really gay. He’s a gay man pretending to be a straight man who’s pretending to be gay. Got that? Moreover, the Court distinguishes 3C from Three’s Company by focusing on the play’s “heavy” tone, which features drug abuse and Mamet-like use of expletives, including gay-bashing slurs:
There is ample evidence to discern the tone of Three’s Company. It can be described as a happy, light-hearted, run-of-the-mill, sometimes almost slapstick situation comedy…. As demonstrated by select quotations…, 3C proceeds in a frenetic, disjointed and sometimes philosophical tone. It is often difficult to follow and unrelentingly vulgar. The same cannot be said of any episode of Three’s Company.
In other words, 3C is as dreary as Three’s Company is cheery. The Court concludes that “[t]he 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.” Fair enough. And having recently failed to sit through a single episode of Three’s Company, even one featuring Loni Anderson, it’s clear to me the show deserves to be parodied.
However, in reaching its conclusion, the Court seems to allow 3C to incorporate far more of Three’s Company than is needed to conjure up the original. In particular, the Court’s view of unprotectable elements like “stock characters” such as a ditzy blonde to include the character’s specific biography — as well as entire scenes lifted from several episodes of the series — seems unnecessarily broad. The Court also closed with some seemingly “copy-leftist” dicta: “The law is agnostic between creators and infringers, favoring only creativity and the harvest of knowledge.” Say what? The Copyright Act imposes pretty stiff penalties against infringers.
Under this analysis, anything short of pure plagiaristic pilfering of prose would appear to be protected parody so long as the new work somehow “commented” on the prior one. This could have broad implications for other valuable series and their characters, from feature films to fan fiction. Think about applying this standard to the Star Wars franchise, although The Phantom Menace is its own parody.