3C vs. Three’s Company: Another “Transformative” Nail In the Coffin of Author’s Rights

Stephen Carlisle April 24, 2015

The case of Adjmi v. DLT Entertainment ¹ pitted the production company behind the 1970’s sitcom Three’s Company against the play 3C, which it contended illegally copied many aspects of the popular sitcom. Once again, the specter of “transformative use” threatens to make meaningless the author’s right to control derivative works.

Given that the Three’s Company case was being tried in the Southern District of New York, the outcome was hardly surprising. This district is under the rule of the Second Circuit Court of Appeals, a court entirely smitten with the broadest possible interpretation of the “transformative use” test. As seen previously on this blog, ² with the Second Circuit’s decision in Cariou v. Prince ³ “the… [court] decide[d] that it is no longer necessary for the new work to comment on the borrowed work or popular culture. In other words, it need not be a commentary on anything. ‘We agree with [Defendant] that the law does not require that a secondary use comment on the original artist or work, or popular culture, and we conclude that twenty-five of Prince’s artworks do make fair use.’  For this rather breathtaking departure from previous case law, there is not one single citation to any authority as to why this is so.” ⁴

To recall just a bit, Three’s Company concerned Jack, an aspiring chef, Chrissie, a dim-bulb blonde minister’s daughter and Janet, a brunette florist, who share an apartment together in a platonic relationship. ⁵ The “situation” that the comedy revolved around was that Jack, in order to remain in the apartment, had to pretend that he was gay, so as not to be forcibly removed by the ultra-conservative Mr. Roper. ⁶

The set-up of 3C is nearly identical. The male lead is an aspiring chef, the blonde female is a minster’s daughter and the brunette female is a florist. ⁷ 3C, even though it clearly is derived from Three’s Company (which itself is derived from a British sitcom Man About the House) ⁸ does take the step of changing all of the lead characters’ names. The only real twist in the set-up is that the male lead character, Brad, really is gay. ⁹

3C came to the attention of DLT Entertainment when the play was produced off-Broadway in 2012. The run proved successful enough that Adjmi, the playwright, had received offers to publish and license 3C. ¹⁰ Upon receipt of DLT’s cease and desist, he filed a declaratory judgement action for a finding of non-infringement. ¹¹

In the opinion, the Court engages in a lengthy recitation of the plots of several episodes of Three’s Company and then compares it to the screenplay of 3C. All through this, the Court continually refers to 3C as a “parody” of Three’s Company, when in fact it seems that 3C is not a parody at all. Dictionary.com defines parody as “a humorous or satirical imitation of a serious piece of literature or writing.” ¹² The Free Dictionary defined parody as “A literary or artistic work that uses imitation, as of the characteristic style of an author or a work, for comic effect or ridicule.” ¹³

Utilizing the Court’s own recitation, there is very little that is funny or humorous about 3C. The Court continually informs the reader that 3C is “dark” and “a nightmarish version” of Three’s Company, which reimagines the show in a “darker, exceedingly vulgar manner.” ¹⁴ “3C proceeds in a frenetic, disjointed and sometimes philosophical tone. It is often difficult to follow and unrelentingly vulgar. The same could not be said of any episode of Three’s Company.” ¹⁵ How is this a parody?

The Court continually cites to Acuff-Rose v. Campbell, ¹⁶ the Supreme Court case that started the whole “transformative” mess. Problem is, the song “Hairy Woman” was a parody of “Pretty Woman.” It ridiculed the song through the use of humor. It is very hard to see how 3C is a parody of Three’s Company. The Court also calls the Eleventh Circuit case of The Wind Done Gone a parody of Gone With the Wind, which it clearly was not. ¹⁷

Also, the Court ignores this warning from the Supreme Court in the very same opinion. What is not permissible are instances where the copier merely “uses [the material] to get attention or avoid the drudgery in working up something fresh…” ¹⁸ To me, it seems that 3C is guilty on both counts. 3C uses Three’s Company both as a method for attracting attention to itself, by referencing the TV show in its title, and using the very well-known plot points of the TV sitcom to avoid having to create new characters, new backstories and new situations. It could have made its sociological and political points very clearly without the wholesale lifting from Three’s Company. Using instantly recognizable set-ups, characters, themes, plots and backstories just made Adjmi’s work a lot easier.

As to the four “fair use” factors, once again the finding that 3C is “transformative” virtually trumps all other factors in the eyes of the Court. “The purpose and character analysis assumes that the alleged parody will take from the original; the pertinent inquiry is how the alleged parody uses that original material.” ¹⁹ Once again, the Court is assuming that 3C is in fact a parody, when in fact is seems that 3C is using the familiar framework and plot points of Three’s Company to make sociological, political and ethical points unrelated to Three’s Company.

Predictably, the Court finds 3C “highly transformative” and that “[t]his determination weighs heavily in a finding of fair use.” ²⁰ It dismisses the second factor, “the nature of the copyrighted work,” in two paragraphs ruling that “this factors weighs in favor of DLT, but assumes less importance in the overall fair use analysis.” ²¹

As to the third factor, the amount and substantiality of the portion used, the Court doubles down on the whole idea that 3C is a parody. The Court admits that “3C copies extensively from Three’s Company” but reminds us that “the Court of Appeals has consistently held that a parody under the fair use doctrine is entitled to more extensive use of the original work that is ordinarily allowed under the substantial similarity test (citation omitted).” ²²

As for the fourth factor, market harm, the Court again reverses its own logic by declaring that 3C is so different from Three’s Company that there is no market harm. It quotes a review of 3C which calls it a reworking of the “original fluffy good humor into deep dysthymia and near suicidal depression, using absurdism and existentialism overdoes with Chekovian angst.” ²³ Again, this is a parody?

It seems that within the Second Circuit and the Southern District of New York, the right of the author to control derivative works under 106(2) no longer exists. As long as the work is judged to be “transformative,” it need not even comment on the original.

Shouldn’t the author have the right to object to taking from its work for interpolation into a “darker” and “exceedingly vulgar” reworking that even the Court admits frequently makes no sense. If it does not have the right to object, then what does the right to control derivative works under 106(2) mean?

Apparently, it means nothing, as long as a Court can wave its magic wand and utter the spell “transformative” making the author’s rights vanish from the Copyright Act.