Adjmi v. DLT Entertainment LTD., No. 14 Civ. 568 (S.D.N.Y.
Mar. 31, 2015)
David Adjmi sued for a declaratory judgment that his play,
3C, based on Three’s Company, was a
fair use, in order to be able to authorize publication and licensing for
further production. DLT had sent a
C&D when the play began its run Off Broadway.
This is a fair use finding on the pleadings, which include
nine seasons of Three’s Company, along with the written play. (It’s not clear whether the court suffered
through nine seasons; the parties explicitly referenced seven episodes, and its
analysis focused on those episodes.) For those of you who don’t remember,
“Three’s Company was one of the most popular television shows of the 1970’s.” According to the Season One DVD:
John Ritter stars as Jack Tripper...
the everbumbling bachelor who shares an apartment with down-to-earth Janet
Wood (Joyce DeWitt) and dim-bulb blonde Chrissy Snow (Suzanne Somers). Along
with their sexually frustrated landlords the Ropers... and Jack’s fast-talking pal Larry... these three
outrageous roommates tripped and jiggled through a world of slapstick
pratfalls, sexy misunderstandings and some of the most scandalously titillating
comedy America had ever seen.
Jack pretended to be gay, and the show “was considered
daring for its time, in that it featured three single, opposite-sex adults
platonically sharing an apartment in the late 1970s.” The court goes into great
detail about several episodes, which made me recall Clay Shirky’s line in
Cognitive Surplus: “Did you ever see that episode of Gilligan’s Island where
they almost get off the island and then Gilligan messes up and they don’t? I
saw that one a lot when I was growing up.”
The credits feature a montage: “Jack rides his bicycle by the ocean
before becoming distracted admiring a female passer-by and tumbling into the
sand, grinning; Janet tends to her flowers then playfully pours water on a
sun-bathing and scantily-clad Chrissy; all while the familiar chorus of Come and Knock on My Door‘
plays in the background.”
The show has a “happy-go-lucky, carefree feel,” complete
(arguably overflowing) with a laugh track.
The central plot theme is “an attractive, heterosexual man living with
two attractive, heterosexual women in an entirely platonic—albeit innuendo-laden—manner.”
Meanwhile, landlords “Mr. and Mrs. Roper play a familiar trope: curmudgeonly,
stuck-in-his-ways old man and his sarcastic but ultimately loving wife.” They
initially bar Jack from moving in with Chrissy and Janet, but accede when they
believe he’s gay (because Janet told them that). In each episode, “everything ties
together neatly and ends in laughter.”
One featured episode covers more “serious” subject matter,
where Janet was passed over for a promotion for an inexperienced co-worker with
big breasts, Chloe. “At different points in the episode, both Janet and Chloe
express sincere plight.” However, the
show “ultimately uses this issue to generate innuendo-fueled comedy.” Another episode involves a mistake about
whether Chrissy’s head injury was life-threatening. “Chrissy’s bubble-headedness stands in sharp
relief to Jack and Janet’s prayers for God to help Chrissy. As usual, everyone
goes home happy—and to a blaring laugh track.”
3C is different. The
parties agreed that the play copied “the plot premise, characters, sets, and
certain scenes from Three’s Company.”
More specifically: “3C’s lead male character is an aspiring chef; the
blonde female lead is the daughter of a minister; and the brunette female lead
is a florist.” The parties diverged in their characterizations of the rest of
the comparisons. 3C begins with excerpts from William Shakespeare’s Romeo and
Juliet (“These violent delights have violent ends,/And in their triumph die,
like fire and powder,/Which as they kiss consume.”) and Genesis 3:17 (“Cursed
is the ground for your sake; In toil you shall eat of it/All the days of your
life.”). The court commented that these
quotes formed an “apposite preamble” for the play, which has a “heavy tone”
from the outset.
(Here I quote from the playscript because it is amazing, and probably gives a good idea
of whether you would want to see this play.
“A double slash (//) indicates
either an overlap or jump... speech in parentheses indicates either a
sidetracked thought or a footnote within a conversation, or shift in emphasis
with NO transition... A STOP is a pause followed either by a marked shift in
tone or tempo (like a cinematic jumpcut or a quantum leap) or no change in
tempo whatsoever. These moments in the play are less psychological than
energetic. They have a kind of focused yet unpredictable stillness, something
akin to Martial Arts, where there is preparedness in the silence...”).
3C opens with a discussion of a woman disfigured in a fire
she set to burn her bra; then roommates Connie and Linda discuss “money
problems…; self-consciousness bordering on self-loathing …; references to
sexual assault …; and Connie’s promiscuity.”
“3C is not light fare….Suffice to say, the tone is not uplifting. And
the roommates’ mood is further dampened by their landlord, Mr. Wicker,
demanding rent they are unable to pay.”
When they discover that Brad passed out naked at their party, “[t]he
ensuing dialogue toggles between excitement and disarming seriousness.” The dialogue, “sometimes disjointed and
rapidly shifting in tone and topic, is a hallmark of 3C.” Mrs. Wicker’s extreme
anxiety makes her seem indifferent to Brad’s supposed sexuality (“MRS WICKER:
(weirdly flirtatious) Don’t tease! and anyways, I plan on committing suicide in
a few days, so I’ll be dead first. Ha ha ha. LADIES FIRST. No seriously, I want
to die. NO I’M KIDDING. (her smile
disintegrating here)”). Mr. Wicker makes anti-gay statements and jokes and
sexually assaults Linda.
Brad’s friend Terry also “uses derogatory language for
homosexuals and has an aggressive, abusive attitude toward women.” Brad is indeed gay and pines for Terry, but
Terry believes the Wickers are under a false
impression that he’s gay. “The play
continues, building on established themes: Linda’s negative self-image; Brad’s
closeted attraction to Terry, and Terry’s exacerbating that with his abrasive
obliviousness; and Connie’s obviously complicated religious and familial
history; and Connie’s promiscuity.” Even “relatively happier moments are
accompanied by complicated, dark undertones.”
Linda mistakenly thinks Connie and Terry are having sex, when he was
actually forcing her to snort cocaine.
“Brad attempts to come out but Linda unknowingly rejects
him.” Mr. Wicker says terrible things
about gays, and “only relents after Brad begins telling jokes deriding
homosexuals himself.” Eventually, “the
play transitions into a series of disjointed non-sequiturs elaborating on
themes described above.” Finally, Brad
attempts to come out to Terry, with bad results, including Connie’s attempt to
be funny by claiming “I’m a faggot too!” which leads Linda and Terry to say the
same.
Eventually, Brad stops laughing. He
pulls himself off the floor. The rest of them are still going. Brad, unsmiling,
wipes the tears from his eyes. He sits on a chair. Removed, but not too deliberately. The laughter dies down.
As they recover a disquieting,
awful dread creeps into the room.
Silence. Black.
Okay then! On to the
legal analysis. The court noted that
other decisions have granted motions to dismiss or summary judgment, based
solely on a comparison of the works at issue, on fair use grounds. The court
also cited two reviews of 3C, which were included in the complaint and thus
properly within the scope of review, but noted that the reviews were
unnecessary to its overall finding.
Adjmi sought to publish and license 3C, so its commercial
nature weighed against fair use (because commercial doesn’t mean First
Amendment commercial). But
transformativeness trumped that. 3C
copied the raw material of Three’s Company to create “new information, new
aesthetics, new insights and understandings,” justifying its copying of the “plot
premise, characters, sets, and certain scenes.” 3C turned Three’s Company’s “sunny 1970s
Santa Monica into an upside-down, dark version of itself.” DLT cited Salinger v. Colting for the proposition that
"[i]t is hardly parodic to repeat [the] same exercise in contrast, just
because society and the characters have aged." 641 F.Supp.2d 250 (S.D.N.Y.
2009), vacated on other grounds, 607 F.3d 68 (2d Cir. 2010). DLT claimed that
"all of the allegedly critical elements in 3C were in Three’s
Company," including "sexual aggression, drug use, homophobia, self-consciousness
and self-esteem issues."
But 3C deconstructed rather than repeated the sitcom,
turning it into “a nightmarish version of itself.” 3C used 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 example, Jack’s false
homosexuality became true for Brad; though that in itself might not have been
transformative, Brad was “almost a reimagining of what Jack would have actually
experienced if he were homosexual: the abusive, demeaning treatment from Mr. Wicker;
constant homosexual slurs from Larry; and even rejection from his own family.” That was a “major departure from Mr. Roper’s
innuendo-laden jokes.” Even setting
aside the markedly different reactions of other characters to Brad/Jack, they
also were in stark contrast. Though both
were “tall, handsome men prone to occasional physical clumsiness, … in similar
living situations,” Jack was mostly a source of comedy, while Brad spent most of
3C grappling with a painful secret he was trying to disclose. “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 same was true for other topics DLT claimed were already
present in Three’s Company:
Chrissy, Jack, and Janet’s
unwittingly finding a plant they erroneously believe to be marijuana versus
Larry’s forcing Connie to snort cocaine; Mrs. Roper’s sarcastic sexual
frustration versus Mrs. Wicker’s near-psychotic break …; the laugh-track
blaring because Janet’s classmates made fun of her flat-chestedness versus
Linda’ s constant self-loathing; Chloe and Janet’s commentary about a handsy
male boss versus Chrissy’s constant allusions to having been raped; and so
forth. To the extent that homophobia, sexual aggression, drug use,
self-consciousness, and self-esteem issues were present in Three’s Company—which
the Court does not necessarily accept as fact—those themes were largely made
light of and ultimately played for laughs.
In fact, actual homosexuality and drug use weren’t in Three’s
Company, while 3C treated them as real and “criticize[d] and comment[ed] upon Three’s
Company by reimagining a familiar setting in a darker, exceedingly vulgar
manner.”
Further discovery was unnecessary “to evaluate stylistic
factors like setting, costume, style, pace, and tone. Given the overwhelmingly
transformative nature of the substance, the first factor would likely weigh in
favor of a finding of fair use even if certain elements, like setting, costume,
style, and pace, were exactly the same as in Three’s Company.” Anyway, that
wasn’t true as to the most important factor: tone. There was ample proof that the tone of Three’s
Company was “happy, light-hearted, run-of-the-mill, sometimes almost slapstick,”
with one central “problem” per episode solved by the end, featuring regular
communication by the characters and supplemented by a laugh track. 3C’s tone differed on even cursory
inspection: from the dour opening quotes (contrasting with the cheerful Three’s
Company montage), it proceeded “in a frenetic, disjointed, and sometimes
philosophical tone, … often difficult to follow and unrelentingly vulgar.”
Thus, transformativeness weighed heavily in favor of fair
use, and would regardless of what discovery might reveal. No intent evidence,
as used in Blanch and Cariou, was required.
Nature of the work: highly creative, though “less in the
creation of new elements than in mixing familiar tropes together in novel ways,”
since the characters were basically stock characters. But anyway, the nature of the work is of
little relevance to transformative uses.
Amount taken: extensive copying of “the original’s basic
plotline, characters, and setting, and, to a lesser extent, its jokes and
themes.” But a parodist is entitled to take the “heart”—“the roommates’ living
arrangement, basic personalities, location, and the like.” DLT also argued that
3C copied many minor, unnecessary elements: “Chrissy/Connie being a minister’s
daughter; Jack/Brad is a chef-in-training; Linda/Janet working in a flower
shop,” and sequences from particular episodes, such as “the female roommates’
mixing together unfinished wine bottles the morning after their original
roommate’s going-away party; Janet/Linda suggesting that Jack/Brad go see an ‘arthouse
movie’; and various innuendo- laden dialogue between Jack/Brad and
Chrissy/Connie which lead other characters to believe the two are sexually
involved.” This constituted copying not just of Three’s Company’s heart, “but
also its metaphorical appendages.” That
weighed against fair use, but had to be evaluated in light of the first and
fourth factors, and was comparatively less important.
Market effect: There’s no protectable market for
criticism. DLT argued that 3C diminished
“the novelty of, and the market for, a potential stage adaptation of Three’s
Company,” and fulfilled the same demand.
DLT cited a review of 3C specifically referring to the play as “three’s
company, too-oo!” Nope. Salinger,
cited by DLT, involved a work “meant to be a sequel of the original, which is
not the case here.” And that very review referred to 3C as “deconstruction” of
the popular television show. Another review was titled “2 gals, a guy and
Chekhov in play ‘3C’,” and observed:
If a surreal, downbeat inversion of
a cheery 1970’s sitcom sounds intriguing, then you and your therapist will
probably want to see... “3C.” Adjmi has imagined how Chekhov (and maybe Wile E.
Coyote) would handle a classic American television situation comedy, based on
the lighthearted “Three’s Company.” He’s reworked the original fluffy good
humor into deep dysthymia and near-suicidal depression, using absurdism and
existentialism overdosed with Chekhovian angst.
“[T]he Court is quite sure that a viewing of Three’s Company
does not require one’s therapist.” There
was no potential market substitution.
The most important consideration was the “distinct” nature
of the works, which was “patently obvious.”
“The law is agnostic between creators and infringers, favoring only
creativity and the harvest of knowledge.”
That meant a fair use finding here.
3 comments:
Is it worth noting that Three's Company was a remake of an English sitcom, Man About the House? - GK
The court does note it--I omitted it.
Interesting. Everything old is new again; this sort of court-conducted inquiry into the similarity of the two works in content and meaning after little to no discovery is exactly how dramatic work infringement cases were resolved in equity, before the Federal Rules of Civil Procedure intervened, e.g. the district court opinion in Nichols. It's just shifted doctrinal buckets.
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