United States: Three's Company But Two's A Crowd: Theatrical Parodies Of Copyrighted Works

In our Oscar litigation post a few weeks ago, we made a passing reference to MGM v. Showcase Atlanta Coop. Prods., Inc., 479 F.Supp. 351 (N.D. Ga. 1979). In that case, the Northern District Court of Georgia held that the play Scarlett Fever was not a protected parody of Gone with the Wind, but rather an unlicensed derivative remake. When we researched this topic, we were somewhat surprised to discover almost no other published opinions exploring the line between theatrical parodies (which are fair use) and mere theatrical remakes (which are not). But recently, an unlikely character has emerged to take an expert pratfall right in the middle of this gap in the case law: Jack Tripper.  Yes, that Jack Tripper.

Two's A Crowd

The sitcom Three's Company (based on the British sitcom Man About the House) ran on ABC from 1977 to 1984. For those of you who were otherwise occupied in the seventies, the plot was as follows: two single women living in Santa Monica throw a wild party to wish their third roommate goodbye. In the morning, they find Jack Tripper sleeping in their bathroom. Jack needs a place to live, they need a new third roommate; two problems solved at once! But the landlord doesn't want any hanky panky going on among unmarried singles, so Jack pretends to be gay in order to stay in the apartment. This basic premise fueled nine seasons of winking innuendo, domestic slapstick and contrived sexual misunderstandings.  The show became iconic for testing the limits of prime time subject matter in a somewhat revolutionary but ultimately non-threatening manner.

In 2012, David Adjmi premiered his off-Broadway play, 3C.  The play more or less borrowed the entire premise and slate of characters from Three's Company, but teased dark themes from the sitcom's subtext, including sexual assault, drug abuse, eating disorders and violent homophobia. Here's how critic Jennifer Farrar described it, as quoted by the Court:

Upon learning of 3C, the company that owns the rights to Three's Company, DLT Entertainment, felt that two was a crowd and threatened to sue Adjmi. Among other things, DLT claimed that Adjmi's play would diminish the market for its own licensed stage adaptation of Three's Company, should they ever get around to it. After some back and forth, Adjmi brought suit in the Southern District of New York, asking the court for a declaration of non-infringement, and then moved for judgment on the pleadings.

On March 31, 2015, Chief Judge Loretta Preska issued her opinion. The Court held that 3C is protected parody; it used the "raw material" of Three's Company to create "new information, new aesthetics, new insights and understandings . . . the very type of activity that the fair use doctrine intends to protect."  So "overwhelming" was the transformative nature of the play, the Court ruled, that the other fair use factors (and the commercial nature of the production) were of little import in the analysis. Additionally, because there is no protectable derivative market for criticism (i.e., nobody would license their work for the purpose of having it criticized), DLT's theory of market harm was also rejected.

Tips for a Liability-Free Stage Parody

So, when it comes to parody in the theatrical context, we still don't have a well-developed body of case law, but at least we have a matching set. At one end, the failed parody Scarlett Fever. At the other, the triumphant 3C.  Based on the holdings of these two cases, here are a few things for the aspiring dramatic parodist to consider:

• Beat 'em, Don't Join 'em: Think about your attitude towards the work you are copying. Does it stand for something you need to criticize, even destroy? Or do you love it and wish to celebrate it, maybe by poking a little fun? If the latter, what you are doing is likely not a parody. There is nothing wrong with homage, but homage generally has to be licensed, while criticism does not.  The play 3C deconstructed the plot and characters from Three's Company to create a recognizable but "nightmarish version" of the original, thus criticizing the sitcom (and by extension popular culture in the late 1970's) for its shallow and breezy treatment of a number of social issues.  In other words, it was "transformative" and in no way a substitute for the original. Scarlett Fever, on the other hand, added a few jokes and musical numbers but was ultimately an unlicensed tribute aimed at fans of the film or, as one court stated, it "put a new gloss on a familiar tale without commenting on its fundamental theme and spirit."
• Wear a Mood Ring: The Courts in both cases paid special attention to the mood and tone of the works. Scarlett Fever generally contained a similar mix of light and dark moments as Gone with the Wind. 3C, on the other hand addressed the subject matter of Three's Company in a new grave tone, creating a consistent tension between original and parody. As Judge Preska observed, while the critics suggested bringing your psychiatrist to 3C, "the Court is quite sure that a viewing of Three's Company does not require a therapist."
• Change your POV: Are you telling the story from the same point of view as the original? The Scarlett Fever case is often compared to SunTrust Bank v. Houghton Mifflin Co.,268 F. 3d 1257 (11th Cir. 2001), in which the Court ruled that the novel The Wind Done Gone was a parody of Gone with the Wind, in part because it told the story from a new perspective: that of a slave. Similarly, Judge Preska noted that 3C is "almost a reimagining of what Jack would have actually experienced if he were homosexual." While not required, a change in perspective is one way to signal to the audience that the original has been transformed.
• Careful with the Small Stuff: The success of a parody is dependent upon its ability to create recognizable allusions to the original or, to put it another way, you first have to "conjure up" the original before you can criticize it. But how much conjuring is too much?  The answer may seem counter-intuitive. In the Scarlett Fever case, the Court was more troubled by the copying of small snatches of dialogue from Gone with the Wind than it was with the wholesale copying of the plot and characters.  Similarly, Judge Preska held that while 3C undoubtedly was entitled to copy the plot and characters of Three's Company, the play came much closer to the infringement line when it was copying small narrative details (e.g., that the male protagonist was training to be a chef; that the "ditzy blonde" was a Minister's daughter, etc.). Why? Because the parodist generally needs to copy the characters and plot — the metaphorical heart of the work — in order to remind the audience what is being parodied.  However, the little creative details — what Judge Preska called "metaphorical appendages" of the work — are not nearly as essential to this purpose, and therefore copying them may (in some cases, but not this one) exceed fair use.

DLT has thirty days to appeal the Court's judgment, which was entered the same day as the opinion. After that, the way is cleared for Mr. Adjmi's play to hit the road with a tour. My therapist is usually tied up at night but hey, DLT, if you ever do get around to producing a licensed Three's Company play, I'm in. In the meantime, we can all content ourselves by reading Judge Preska's surprisingly entertaining twenty-five page synopsis of seven episodes of Three's Company, and of 3C, at the beginning of her opinion.

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