Playwright David Adjmi has built a reputation for provocative work that combines disparate styles and influences, often including the tropes and clichés of pop culture. A prime example is his recent play, 3C. Produced Off-Broadway in 2012, it employs elements of the chirpy 1970s television series Three’s Company to explore dark themes of alienation and despair.
Adjmi’s previous work has been performed at such venues as the Royal Court Theatre in London, the Yale Repertory Theatre, the American Repertory Theater, and the Soho Repertory Theatre. Samuel French, Inc., the renowned theatrical publisher, has proposed producing an acting edition of 3C and an e-book, as well as handling stock and amateur licensing for future productions of the play.
But those ambitions are on hold for the moment as 3C is under the cloud of a copyright infringement claim. The owners of Three’s Company, DLT Entertainment, have sought to permanently enjoin any reproduction, publication, distribution, public performance, exhibition, or public display of the play.
In October, Adjmi enlisted Davis Wright Tremaine partner Bruce Johnson to help him resolve threats from the TV show’s owners.
A longtime trustee of the Seattle Repertory Theatre, Johnson is on the advisory committee for Theatre Communications Group (TCG), a national organization supporting the country’s professional, non-profit theaters. His previous pro bono service to TCG has included filing amicus briefs in an effort to stop Colorado regulators from applying a statewide smoking ban to live theater performance. TCG has published trade paperbacks of Adjmi’s prior work, and is interested in doing the same for 3G.
Joining Johnson on the case is New York partner Ed Davis. His extensive experience with First Amendment issues in the cultural sphere includes the representation of leading art museums and other institutions as amici curiae in litigation over New York Mayor Rudolph Giuliani’s unsuccessful efforts years ago to punish the Brooklyn Museum of Art for a controversial exhibition that included a painting of the Virgin Mary accompanied by elephant dung.
Also on the team is associate Camille Calman, who was on the Executive Board of the Yale Dramatic Association as an undergraduate, and spent years as a theatrical stage manager in New York before joining the TV industry and then entering law school.
With exchanges of letters in past months having failed to bring the disputing parties closer together, and with 3C’s potential publishers in limbo, Adjmi’s legal team filed suit in February of this year, seeking a judicial determination that the play does not infringe the copyright of DLT Entertainment. Calman took the lead in writing the complaint.
“I was absolutely gobsmacked by the work my lawyers did on the brief,” says Adjmi. “It was unusually trenchant for a legal document, and so well written. And really articulated the crux of why this play clearly falls under the fair use doctrine.”
The complaint describes 3C as “an original work for the stage that tells its own story with its own characters but employs elements of the iconic television series Three’s Company for the purposes of parody and criticism.”
3C, says the brief, “refers to elements of Three’s Company only to explore the disparity between pop culture and reality, and the damage that disparity can do to people who cannot harmonize their own realities with society’s expectations… To the extent that 3C copies protectable elements of Three’s Company, the use qualifies as a fair use under the Copyright Act for purposes of parody and commentary. Because a fair use is by definition a non-infringing use, DLT’s permission was not needed for 3C, and DLT may not block productions or the publication of 3C.”
On March 24, DLT filed an answer to the suit, and a counter-complaint of its own, asserting that 3C is “nothing more than an unauthorized derivative work…that borrows many of Three’s Company[’s] most recognizable features solely to capitalize on the show’s success.” Named among the defendants named was Rattlestick Playwrights Theatre, where 3C was staged in 2012.
Adjmi says he was initially loath to engage in a legal battle with the company. “I’m really not a litigious sort of person,” he says. “But in the end I do feel it is imperative to stand up for one’s work. I can’t continue to call myself an artist—which is for me about challenging the status quo—and at the same time allow myself to be cowed by corporations who don’t like what I have to say. I wouldn’t feel very good about myself, and I think my future work would be stunted.”
The 3C case has been covered by The New York Times and other media outlets. Johnson says the DWT team expects to soon file a motion for judgment on the pleadings.
“The history of art is a history of appropriation and transformation,” observes Adjmi, “From Egyptian art to Kara Walker, from Courbet to Manet, from Holinshead to Shakespeare. If we lose that conversation to branding and intellectual property, we lose history and we lose culture.”