According to reports from The New York Times and Playbill.com, lawyers representing DLT Enterprises — the company that owns the copyright to the television series Three’s Company — have sent playwright David Adjmi a letter demanding he cease putting on productions of 3C and refrain from publishing the play’s script. In its letter, DLT accused Adjmi of infringing their copyright on Three’s Company by lifting key plot devices from the sitcom, including a male lead who pretends to be gay in order to fool an uptight landlord into allowing him to live with two female roommates.
Adjmi, who told the New York Times that the purpose of his play was to write “a deep critique of the ideologies and assumptions behind the television series” has yet to respond formally to DLT’s allegations. He has, however, decided not to extend 3C’s initial run, which ended July 14.
A number of organizations, including The Dramatists Guild of America, have spoken out in support of Adjmi, chastising DLT for using its deep pockets to stop production on what the Guild believes is an obvious case of parody:
We of the Dramatists Guild of America wholeheartedly support playwright David Adjmi who has been facing pressure to silence his play 3C. His work is a darkly comic parody of the sitcom ‘Three’s Company,’ intended to critique the show and the social mores underlying it. The copyright owners of that work have written a ‘cease and desist’ letter, which would, in effect, require him to stick the play in a drawer forever. But works of parody are protected under the ‘fair use’ doctrine of copyright law, because such works serve as valuable social criticism.
Likewise, several leading members of the New York theatre community have penned an open letter, proclaiming 3C is a satirical work that should be exempt from copyright infringement suits under the Fair Use Doctrine and recognized as protected speech under the First Amendment:
It is clearly and patently and unremittingly parody, to the extent that it depends on Three’s Company‘s 1970s attitudes towards sexual relations, etc., in order to slyly examine the underlying brutality and bigotry attendant to American popular culture of that era. (And since then). The critical response to the play has generally acknowledged 3-C‘s exploration of the essential aloneness of the characters, and the toxic suffering they endure. Mr Adjmi’s intentions are not to replicate Three’s Company, but clearly and patently to mutate it into something dark and frightening, savage even.
Despite such support, Adjmi claims his reluctance to put on additional productions of 3C is due in large part to the high cost of challenging DLT’s allegations of copyright infringement.
In sending the cease and desist, DLT is attempting to dilute the Fair Use parody exception by hanging the threat of costly litigation over the heads of creators who draw on copyrighted elements from other works to craft social narratives. In short, the Fair Use Doctrine protects those who would make use of copyrighted material for a limited and “transformative” purpose. Though the laws governing what constitutes fair use are far from absolute, parody is a genre that has historically been deemed sufficiently transformative to qualify as an exception to the copyright owners’ exclusive right to exploit protected works.
A parody is a work that ridicules another, usually well-known, work by imitating it in a comedic way. In order to qualify as parody, the new work must provide social benefit by criticizing, commenting on, or trivializing the prior work. Like plays and other creative genres, comic books are a medium that has benefited from the protection the Fair Use Doctrine generally affords creators who use parody to criticize or comment on works otherwise protected by copyright. Garth Ennis’ monthly maxi-series, The Boys, is a prominent example of parody in comics. In The Boys, Ennis uses thinly veiled parodies of famous comic properties to craft a comedic, often dark, narrative on the superhero genre.
Another well-known use of parody is the Dirk Anger character Warren Ellis created for the series Nextwave. Dirk Anger is an obvious, over-the-top parody of Marvel’s Nick Fury. Had Marvel taken issue with Ellis’ reliance on the Nick Fury character’s tropes in designing Dirk Anger, they could have filed an infringement action against Ellis. (Of course, Marvel owns and controls the copyright to both Nextwave and Nick Fury, making an infringement action unlikely, if not impossible).
An often misrepresented aspect of the Fair Use Doctrine is the incorrect assumption that it enumerates a list of categories for which creators have an absolute right to borrow from copyrighted works, as opposed to naming acceptable defenses to claims of copyright infringement. In other words, creators are not shielded from infringement suits simply because they may be utilizing protected works in ways that traditionally constitute fair use. Rather, alleged infringers must participate in infringement actions and, over the course of a lawsuit, prove to a judge or jury that the nature of their use entitles them to immunity.
One obvious cause for concern, as alluded to in the 3C situation, is that litigation is often costly — with no guaranteed conclusion. For creators, the benefits of successfully defending their use of protected works for parody can be easily outweighed by the fear of accumulating high attorney’s fees and the added drain of time spent preparing a defense. Copyright owners with deep pockets (like DLT) have sought to capitalize on creators’ often-limited resources by filing what have been dubbed SLAPP lawsuits (Strategic Lawsuit Against Public Participation) with the primary purpose of causing opponents to succumb to the aforementioned pressures of litigation. Though a small majority of states have enacted laws shielding defendants from SLAPP lawsuits, statutory protection from similarly abusive litigation tactics is far from ubiquitous.
The fair use parody exception is an essential tool for creators seeking to use pre-existing works to construct new social narratives. It would be unfortunate if the mere threat of litigation were sufficient to erode the integrity of the parody exception and prevent David Adjmi from showcasing what many believe is a work warranting protection under the Fair Use Doctrine.
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Rick Marshall is an attorney working towards a master’s degree in Digital Copyright and Intellectual Property Law at The George Washington University Law School.