The Southern District of New York recently held that an off-Broadway play titled “3C,” was a fair use parody of the 1970s television comedy series “Three’s Company.”    During “3C’s” brief 2012 run at Rattlestick Playwrights Theatre in New York City, DLT sent cease-and-desist letters to Rattlestick, playwright David Adjmi, and others asserting copyright infringement.

Though the off-Broadway run had completed, Adjmi still hoped to publish the play and license future performances.  He therefore brought a declaratory judgment action for non-infringement against DLT in January 2014and subsequently moved for judgment on the pleadings.  Finding that DLT held the copyright to “Three’s Company” and that “3C” copied its original elements, the court focused its inquiry on whether “3C” qualified as a non-infringing “fair use” by analyzing the four statutory factors.

The Purpose and Character of the Use

Though “3C” is a commercial product, which would ordinarily weigh against a finding of fair use, the court found “3C” to be a highly transformative parody of “Three’s Company” that “us[es] the familiar ‘Three’s Company’ construct as a vehicle to criticize and comment on the original’s light-hearted, sometimes superficial, treatment of certain topics and phenomena.”

For the court, the most critical difference between the two works is that in “3C,” the central male character (Brad) is not a straight man pretending to be gay (like Jack, in “Three’s Company”), but rather a gay man hiding his sexual orientation behind the elaborate façade of a straight man pretending to be gay.  “3C” uses this change to present what the author imagines that character would realistically have experienced if he were gay.  Similarly, other themes that “Three’s Company” treated comedically—sexual aggression, drug use, self-consciousness, self-esteem—“3C” treats realistically, and by doing so, criticizes and comments on “Three’s Company’s” happy-go-lucky treatment of those issues.  The court noted that “DLT may not like [this] transformation, but it is a transformation nonetheless.”

Nature of the copyrighted work

Although this factor weighed against finding fair use because “Three’s Company” is a “creative, even groundbreaking, work,” this factor did little to sway the overall analysis because “parodies almost invariably copy publicly known, expressive works.”

The amount and substantiality of the portion used in relation to the copyrighted work as a whole

While recognizing that a parody is entitled to more extensive use of the original work than is generally allowed under the substantial similarity test, the court found that “3C” copies not only the heart of “Three’s Company,” but also minor elements that have no parodic purpose and which are unnecessary to evoke the original.  However, in view of the first and fourth factors, this factor was “of comparatively lesser importance.”

The effect on the potential market for, or value of, the copyrighted work        

Recognizing that no protectable derivative market exists for criticism, the court found this favor weighed heavily in favor of a finding of fair use.  DLT’s arguments that “3C” fulfills the same demand and diminishes the novelty of, and market for, a potential stage adaptation of “Three’s Company” were not persuasive.  The court quoted a review of “3C” that called it “surreal,” “downbeat,” and “Chekhovian,” and stated that it “reworked the original fluffy good humor into deep dysthymia and near suicidal depression.”  Another review identified “3C” not as a sequel to “Three’s Company, but rather, a “deconstruction” of it.  In light of these reviews, and the court’s own review of the works, the court found that “3C” was not a potential market substitution, and therefore there was no cognizable harm under the Copyright Act.

Though DLT appealed the court’s decision, the parties settled in late June, thereby foreclosing hopes of further clarification of fair use in the Second Circuit.