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:

If a surreal, downbeat inversion of a cheery 1970's sitcom sounds intriguing, then you and your therapist will probably want to see "3C." . . . He's reworked the original fluffy good humor into deep dysthymia and near-suicidal depression, using absurdism and existentialism overdosed with Chekhovian angst.

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...