Three’s fair use too: play is transformative work

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.

Sara Krulwich/NYT still from play 3C
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 falseimpression 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.
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