Copyright and Three's Company

In these blogs, I've written about how you cannot copyright an idea and how sometimes you can claim copyright in a character. I've described cases where the authors of novels based on Gone with the Wind and other well-known works have been sued for infringement, argued that under the fair use analysis their work is not infringing, and then they and the copyright owners have settled.

In January 2014, a playwright filed for a declaratory judgment of noninfringement after having received a cease and desist order from the copyright owner. On the face of it, it would seem that he had done a lot right, availing himself of some of these approaches and techniques. Of course, the lawyers threatened suit anyway. He withdrew the play, but now he is asking the court for an answer--does my play infringe the copyright held by this company?

The play is clearly suggested by a U.S. television show of the 1970s named Three's Company. It starred, originally, John Ritter, Suzanne Somers, and Joyce DeWitt. It ran from 1976 to 1984. It was a licensed adaptation of a British tv series titled Man About the House. Both series concerned a man who loved women but pretended to be gay in order to economically share an apartment with two women. The landlord had no trouble with the arrangement because he thought the man was gay.

Some men who were gay thought the U.S. series was offensive. Times have changed and in many places a man would no longer have to pretend to be gay or homosexual to share an apartment with two women.

The playwright David Adjmi wrote a play called 3C about a gay man living with two women in an apartment. Unlike Three's Company, 3C is not a comedy. The names of the characters in the play are different from those in the tv show. And yet the play's title and the basic situation show an influence from the tv show.

DLT Entertainment sent Adjmi a cease and desist order, claiming that the play infringed its copyright of Three's Company and that the play was causing DLT injury but affecting its ability to create a stage adaptation of the tv series.

Adjmi at first withdrew the play from performances, but he then decided to file a lawsuit, Adjmi v. DLT Entertainment, S.D.N.Y., No. 1:14-cv-00568, filed 1/20/14, asking the court for a declaratory judgment of noninfringement.

In his complaint, Adjmi uses a fair use analysis. As to the purpose and character of his use of the copyrighted material, Adjmi claims that it is not a spoof of the original but instead has its own unique characters and plot. It refers to Three's Company "only to explore the disparity between culture and reality."

Adjmi writes that "like any parody 3C makes use of recognizable features of the work it parodies and does so in a transformative way." Here, Adjmi uses the term parody broadly, just as the novel based on Gone with the Wind did, to include social commentary.

Continuing with the fair use analysis, Adjmi writes that as to the amount of the original work that is being used much of what he uses are uncopyrightable ideas rather than copyrightable expression. "None of dialogue is copied, and the development of plot is vastly different."

As to the fair use element of the effect of the play on the original's market, Adjmi asserts that no one seeing 3C could mistake it for Three's Company, "give the play's tragic tone."

We'll see what comes of this. It may settle as others have and therefore produce no legal precedent. There would be an advantage to those of us who write--although not necessarily Adjmi--if it goes to court and generates a decision.

Copyright 2014 by John T. Aquino. This article is for educational purposes only and does not constitute legal advice.