Parody and theatrical copyright

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Older readers may recall the US sitcom Three’s Company from the late-70’s/early-80s (based on the British sitcom Man about the House). The premise of the series was that two single women share a house with a man. The landlord is unhappy at what this might lead to so, in order to remain as a tenant, the man pretends to be gay, thus reassuring the landlord that there will be nothing untoward taking place in his property. The comedy was of the innuendo, Carry On variety and the series, considered to be avant-garde at the time, aired at prime time.

Some 30 years later, a play 3C was staged on Broadway. The play adopts the Three’s Company premise – two women sharing a house with a gay man – but in this case the emphasis is not on light-hearted slapstick but themes like homophobia, sexual assault and drug abuse. Critics used words like “existentialism” and “dysthymia” to describe it, not words readily associated with Three’s Company.

Copyright in Three’s Company is owned by DLT Entertainment. DLT threatened to institute proceedings against 3C’s playwright, David Adjmi, claiming, among other things, that the play would adversely impact the market for its own stage adaptation of Three’s Company. Adjmi sought a declaration for non-infringement in the Southern District Court of New York.

The judge ruled in favour of Adjmi, invoking the “fair use” exception to copyright infringement. A US court has a number of factors to consider when applying the “fair use” doctrine but in this case the various factors were overwhelmed by just one – the transformative nature of the allegedly infringing production. The judge accepted that there were many similarities between the two productions but that 3C was “clearly transformative”. In the judge’s words “DLT might not like the transformation, but it is a transformation nonetheless”. It was true that 3C copied extensively from Three’s Company but the play’s transformative nature outweighed what was taken.

The judge also considered that DLT was unlikely to suffer much harm from 3C, the two productions hardly being market substitutes for one another.

The lesson for playwrights is perhaps that if you are going to base your play on an existing work, you should look to subvert, ridicule and otherwise disparage the existing work rather than produce a tribute act.