Friday, February 07, 2014

Come and Knock on Our Door! - But Slide the Summons Underneath

Joyce DeWitt, John Ritter and Suzanne Somers
 in Three's Company
Playwright David Adjmi is in a tough spot.

He spent a lot of time writing a play, a dark satire of a well-known sitcom of the 1970's. The play even received a New York production off-Broadway at the Rattlestick Theatre.   The reviews were mixed, but enough on the positive side to secure at least a few well-placed regional productions, right?


As the curtain was coming down on that initial production, the playwright received a cease and desist letter from DLT Entertainment, the original rights holders of Three's Company, which is the aforementioned 70's sitcom that was skewered in 3C, Adjmi's play.

Now, months later, the writer of 3C is petitioning the courts to allow at least the publication of 3C in an anthology of his work.

The New York Times reports:

In a 20-page complaint, which was accompanied by supportive comments from acclaimed theater artists like Jon Robin Baitz, Tony Kushner and Stephen Sondheim, Mr. Adjmi asked the Southern District Court of New York to declare that “3C” does not infringe on the copyright of “Three’s Company,” which ran from 1977 to 1984 and remains in syndication. Mr. Adjmi’s lawyers, citing the First Amendment and the legal doctrine of fair use, argue that “3C” is an original parody that only borrows some elements from the sitcom to examine its premise, character types, and homophobia and sexism in that era.

You can read the complaint here.  

I haven't seen or read Mr. Adjmi's play, but images from the production are striking in how closely they resemble the actual show it is supposedly parodying.  Of course, that doesn't mean that 3C isn't fair use.

Jake Silbermann, Anna Chlumsky, and Hannah Cabell
3C, D at Rattlestick Playwrights Theatre 

However, it is actually very difficult to predict the outcome of these cases based on precedent. When reading through many famous parody/fair use decisions, it becomes obvious that judges really take it on a case by case basis.

The court applies many different tests and takes many avenues of inquiry into the parody defense. Questions that come into play:

1. Is it parody or satire?
2. Is the target of the parody the original work, or is it a broader commentary on society?
3. Is the new work transformative?
4. In the case of trademark infringement, would there be confusion in the mind of consumers?

It's tough to say what a judge might think, especially if DLT Entertainment can prove that they themselves are on the verge of launching a live theatrical show of Three's Company, sort of in the mode of the long-running Real Live Brady Bunch from the 1990's.


Ian Thal said...

Don't we all judge these things on a case-by-case basis too?

Having not seen Adjmi's 3C, I, too, have no idea whether it is as transformative of the source material as his legal complaint (which I have read) claims it to be. I'm certainly sympathetic to the idea of 3C as being a sufficiently separate work from Three's Company and it certainly does sound as if he has made a far greater effort to differentiate his work from source material than other playwrights who similarly riff on pop-culture.

Of course, that still leaves it an open question as to whether it is any good, and sadly, I was quite unimpressed with Adjmi's Marie Antoinette when it was at ART.

Art said...

It's funny. When looking at Facebook threads and some tweets about this case, I detected many artists having a little of a knee-jerk reaction of: "Of course it's fair use, this is just the case of a big company trying to scare an artist."

Determining fair use can actually be quite complicated and, to some extent, subjective.

This case should be a chance for playwrights to actually learn more about the laws and case histories. When reviewing past famous cases, I think many people would be surprised at some of the verdicts.