Remember ‘Three’s Company’? The Anodyne Sitcom's Stage Parody Is Somehow At The Center Of A Battle Over Fair Use

The result was "3C," a dark comedy about three psychologically damaged roommates -- two girls and a closeted gay man -- who live together in a rundown apartment in 1970s Santa Monica. To the Brooklyn-based playwright and member of the New Dramatists, it sounded like a winning concept. And on June 6, Adjmi's play opened at the edgy Rattlestick Theater in Manhattan's West Village to thundering applause.

Then a lawyer came and knocked on his door.

On opening night, producers of "3C" received a cease-and-desist letter from Kenyon & Kenyon, the law firm representing DLT Entertainment, the distribution company for "Three's Company."  Charging that Adjmi had infringed on its copyright, DLT demanded that the playwright cease further performances.

The company was painstakingly forthcoming about its gripes, outlining in the letter a point-by-point breakdown of the similarities between Adjmi's play and the series. There is the sexy blonde who "jiggles," the grouchy landlord who spouts gay jokes, the slapstick story lines and, of course, the underlying promise that comes with the setup of two girls living with a guy. The characters' names were changed, but the representations were clear, right down to the spot-on beige set and skin-tight costumes.  

The letter was a hostile gesture for sure, but according to the Dramatists Guild of America, it completely missed the point of the play. "It listed all these similarities, but what it didn't seem to mention was that the resemblances are clearly intentional," said Ralph Sevush, the guild's executive director of business affairs.

Sevush believes that "3C" meets the clear definition of parody, a protected form of First Amendment speech. Under the fair use doctrine of copyright law, artists may, without permission, borrow elements from an earlier work for purposes of commentary or criticism. It's a form of expression as old as American society itself, and it's a device upon which modern offerings such as "Saturday Night Live" and "Family Guy" are built.

The argument for protecting parody is that it serves as a means of criticizing public figures and communicating social ideologies. In a July statement supporting Adjmi, the Dramatists Guild said that's precisely what "3C" does. By placing the silly, slapsticky template of "Three's Company" in a subversive context, the play ceases to be imitation and instead emerges as a form of "valuable social criticism."

"Corporate interests may prefer not to have their properties targeted for mockery," the statement added. "But artists have the right to do so, regardless of the best bullying tactics that corporate profits can buy."

Indeed, Adjmi's realistic rendering -- in which the characters worry about getting raped and toss out homophobic slurs with abandon -- does not paint the original sitcom in a particularly rosy light. One scene, which pokes fun at the misunderstandings around which "Three's Company" story lines often hinge, involves two characters snorting coke as a third overhears them and mistakes it for a sexual act. But while it would be easy to write off DLT's complaint as a case of sour saber rattling from a company with no sense of humor about its brands, the reality is that fair-use cases are rarely so cut-and-dried.

Murky at Best

Gano Lemoine, an entertainment lawyer who specializes in copyright law, said that fair-use cases are notoriously unpredictable. "The question really comes down to how much and to what extent the parody copies the original," he explained. "The more closely it mirrors the original, the more chances you have of running into copyright infringement. That's kind of the double-edged sword, because parody by definition must reference the original."

Lemoine cites the landmark case of Annie Leibovitz v. Paramount Pictures, in which the Vanity Fair photographer sued the studio over an advertisement that parodied her famous "pregnant Demi Moore" magazine cover. The ad was used for the movie "Naked Gun 33 1/3" and featured Leslie Nielsen's face over the body of a pregnant woman. The U.S. Court of Appeals determined that the parody ad fell under fair use. And yet while the ruling has been oft-cited since, it has not unequivocally solved the definition of what would constitute fair use in a court of law.

That's provided a case even makes it to court. Most do not, Lemoine said. Rather, they begin and end with the kind of cease-and-desist letters sent by DLT. "There are probably hundreds of these letters that go out to artists or indie filmmakers who are unfunded or underfunded," he said. "The artist gets scared and the parody never sees the light of day."

Lemoine has not seen "3C," but he said all fair-use cases are determined by the same four factors: the purpose of the parody, the nature of the copyrighted work, the portion of the work that the parodist uses, and its effect upon the potential market.

Don Taffner Jr., president of DLT Entertainment, said "3C" crosses those lines, arguing that it moves beyond parody into a blatant imitation. He is not opposed to the idea of modern "Three's Company" interpretations, and in the past he has granted the rights for a musical version in Italy as well as a 2011 parody film produced by James Franco. However, he said those cases differed in that they involved "a mutual respect for intellectual property rights" -- something he believes "3C" willfully ignores.

"The simple fact is that there are way too many similarities, including direct copying of scenes, for this work to be considered parody," Taffner said. "The producers and theater accepted this position when they agreed not to perform the play beyond its scheduled July 15 end date."

"3C" completed its short run at Rattlestick, but DLT has demanded that no further performances take place -- a mandate that essentially prohibits Adjmi from earning any revenue from future productions. The traditional route for an off-Broadway play is that the playwright could either stage additional runs or license the rights to other theater companies that want to produce it. (Adjmi's earlier works have been staged at theaters around the country.) Sometimes the play's script is published, as Adjmi's play "Stunning" was last year by Theatre Communications Group. Touring companies, regional theaters and college drama programs are constantly looking for new works to produce, and a play like "3C," with a small cast and minimal set requirements, would be an optimal choice for producers.

But if DLT gets its way, none of that will happen. According to Taffner, Adjmi's agent at CAA said that the playwright agreed to DLT's demands: That means "3C" will die a quick death, now that its Rattlestick run is concluded, and Adjmi will not publish the script. To Taffner's dismay, however, the fight did not end with Adjmi's concession.

The Court of Public Opinion

When the New York theater community caught wind of DLT's cease-and-desist letter, the battle over "3C" took on a new life. Jon Robin Baitz, the Pulitzer finalist and playwright behind "Other Desert Cities," rifled off an open letter in support of Adjmi's right to continue performing the play. The letter was scathing, a condemnation of "legal bullying" as a means of crushing free expression. Published on the website the Awl, it includes a list of signatories that reads like a who's who of contemporary theater, including Stephen Sondheim, Tony Kushner, John Patrick Shanley and Lynn Nottage.

"That an off-Broadway playwright should be bullied by a Wall Street law firm over a long-gone TV show is, in and of itself, worthy of parody," Baitz wrote. "But in fact, this should be taken seriously enough to merit raising our voices in support of Adjmi and his play."

Taffner, meanwhile, resented that the issue was being framed as a "Wall Street versus the little guy" debate. "We are a family company," he said, "and one of the few remaining independent producers and distributors -- not a Wall Street conglomerate. And the 'little guy' is someone who has had enough success that he is represented by CAA."

Nevertheless, Baitz's online letter attracted a stream of supportive comments, some of which were wholly dismissive of the idea that "Three's Company" could have any modern value outside of someone making fun of it. Even the Dramatist Guild's Ralph Sevush chuckled at the question of whether "3C" could do harm to the original show. "I don't think the brand can be damaged," he said. "It was a sitcom that was on 40 years ago. If anything, the play makes it relevant again because people are actually talking about it."

Taffner, meanwhile, said that he was surprised by the "disparaging comments" about "Three's Company" that were being tossed around by some of Adjmi's supporters. "I would have expected better from the creative community," he added.

He also voiced unease over the possibility that theatergoers could mistake "3C" for an "official" stage version of "Three's Company." "That is very much a concern for us," he said. "Both in terms of protecting the integrity of the brand for television, but also as we have been exploring our own stage version and in fact have had a script written and workshopped."

In an email message to the International Business Times, DLT's lawyer, Jonathan Reichman, pointed out that copyright holders do not have to show confusion in the marketplace to establish an infringement claim. "Confusion is a relevant factor in trademark infringement claims," he said, "but not copyright infringement claims."

As for David Adjmi's next move, following the overwhelming support he received from the theater community, the playwright has begun exploring his legal options. He was not available to comment for this story (according to his agent, he is in rehearsals for a new play), but he has already stated to the New York Times that the only reason he agreed not to stage future performances was because he could not afford a lawyer to defend himself. However, with the involvement of the Dramatists Guild -- and its newly founded nonprofit, the Dramatists Legal Defense Fund -- that may soon change.

In the meantime, there is still the question of how the original "Three's Company" cast members feel about "3C." At least one of them has seen it: Richard Kline, who played the freewheeling used-car salesman Larry Dallas. Kline thought the play followed through on its promise as a work of social criticism. "With the exception of some misguided direction in the very beginning and some heavy-handedness in certain sections, I thought the play was a brilliant deconstruction of an innocent farce," he said.

Kline added that he does not think "3C" should be censored, particularly as Adjmi's intent is "not merely parody but to explore character and social issues with impunity," and yet the likelihood of this matter being settled outside of a courtroom remains to be seen. DLT has had no contact with Adjmi, and the company would not comment on whether the playwright could make alterations to the play that would meet with its satisfaction. But if "3C" makes it clear that the issues facing sitcom characters in the 1970s are still relevant today, its legal battle makes it equally evident that the days when people could settle their differences over drinks at the Regal Beagle are long gone.