The “cease and desist” order enumerated some 17 similarities between the old TV series and Adjmi’s play, including such high-tone observations as “Connie is sexy and jiggles just like Chrissy.” Yes, really, at least according to an open letter from the theatre community penned by playwright/screenwriter Jon Robin Baitz.
Adjmi estimates that he made a total of perhaps $2500 from the five-week run of his show, which according to the producers “received some wonderful reviews and played to sold-out houses.” He didn’t think he could afford legal representation, so although he never signed anything or returned the information demanded by Kenyon & Kenyon (the DLT lawyers), he also didn’t think it possible to extend the run of the show past its scheduled closing date.
But here’s the thing. Similarities or no, DLT has no case. None. Zero. Bupkes. Yeah, yeah, yeah, they’re developing a stage version of the series (God help us) and 3C “damages” their property. Blah-de-blah-de-blah-blah-blah. First thought: what really damages the property (the Three’s Company stageplay) is the fact that it’s based on the “Three’s Company” series which, let’s face it, sucked.
Secondly, whereas there are clearly overlaps between the two shows, they go in totally different directions. Here’s Baitz:
Yes, David's play satirically invokes the sitcom in question as a template upon which to de-construct the mores and tropes of that time. It is clearly and patently and unremittingly parody, to the extent that it depends on Three's Company’s 1970s attitudes towards sexual relations, etc., in order to slyly examine the underlying brutality and bigotry attendant to American popular culture of that era. (And since then). The critical response to the play has generally acknowledged 3-C's exploration of the essential aloneness of the characters, and the toxic suffering they endure. Mr Adjmi's intentions are not to replicate Three's Company, but clearly and patently to mutate it into something dark and frightening, savage even.More significantly still, parody is protected speech. That’s why there are shows like Dog Sees God or Forbidden Broadway. This fundamental interpretation of the 1st Amendment runs through the entire history of American jurisprudence. If Hustler can get away with their vicious attack on Jerry Falwell (a fake ad of the televangelist apparently having a drunken sexual affair with his mother in an outhouse), David Adjmi can put a big-breasted bubblehead in his play. (Does DLT really think that character was original with “Three’s Company”?)
The Dramatists Guild also points out that:
…the right of authors to make fair comment on pre-existing work (whether through parody or other forms of fair use) is a First Amendment safety valve in the copyright law, and one we wholeheartedly support, as do the courts. If the author contacts us, we will discuss the issue with him and see how we can help.Note what Adjmi is doing isn’t like, say, the Wooster Group’s wholesale appropriation of the actual playscript of The Crucible for their production of L.S.D. (Just the High Points). It would be disingenuous to suggest that audiences for 3C aren’t supposed to make the connection to the television series. That said, the aesthetic intentions involved are radically different.
Remember, too, that a work need not even be specifically determined as parody to be protected. Such was the case, for example, in a copyright infringement case regarding Alice Randall’s novel The Wind Done Gone which uses Gone with the Wind in much the same way as 3C uses “Three’s Company”: to problematize attitudes once taken for granted. As Kyonzte Hughes writes on the First Amendment Center’s webpage:
Applying the elements of fair use, the appeals court recognized that Randall’s work was made for a commercial purpose. However, the court said that this factor was “strongly overshadowed and outweighed in view of its highly transformative use” of Gone With the Wind.Kenyon & Kenyon is, pure and simple, engaging in legalistic bullying. This might not technically be a SLAPP suit (which would be illegal in New York), but it’s certainly a first cousin. DLT is doing this because they can, not because they are really stupid enough to think they could win if the case ever went to trial. “No one has ever heard of David Adjmi; let’s push him around a little.”
“Randall’s literary goal is to explode the romantic, idealized portrait of the antebellum South during and after the Civil War,” the appeals court wrote.
The appeals court also determined that the Mitchell estate had failed to show evidence that Randall’s book would harm the market value of Gone With the Wind’s derivative works or take away market demand for Mitchell’s book.
A concurring judge even pointed out that Randall’s book may “act as complement to, rather than a substitute for Gone With the Wind and its potential derivatives. The judge reasoned that readers of The Wind Done Gone “may want to refresh their recollections of the original.”
What DLT doesn’t understand—because they’re in this only for financial gain and perhaps a little self-importance—is that no matter how much we theatre types are inevitably in competition with each other, it’s rare indeed when we don’t take care of our own. David Adjmi, they might be able to take on. But not Jon Robin Baitz, Andre Bishop (Lincoln Center Artistic Director), Tony Kushner, Stephen Sondheim, Terrence McNally, John Guare, John Patrick Shanley, Jose Rivera, Craig Lucas, Jim Nicola (Artistic Director, NY Theatre Workshop), Terry Kinney (co-founder, Steppenwolf Theatre Company), Stephen Adley Guirgis, and nearly three dozen other signatories to Baitz’s letter: and that was before it really went “public” to the rest of us in the profession. Curmie has already added his name—for what little good it might do—to the quickly-growing list.
Would I like Mr. Adjmi’s play? Perhaps not. But Baitz answers that argument, too:
Whether one appreciates the work or not is immaterial; the principle at stake here is a basic one. Specious and spurious legal bullying of artists should be vigorously opposed, and that opposition must begin first and foremost with all of us in the New York Theatre community.Preach it, JRB.