Panel 2: Copyright: The Future Ain’t What it Used to Be

Visual Artists Groups: Summary Recommendations of Key Components of a Copyright Small Claims Tribunal Bill, (February 22, 2016) http://www.ppa.com/files/pdfs/VisualAssociationsSmallClaimsTribunalPaper.pdf New Cases in Copyright Law – Internet and Beyond, Kirkland & Ellis LLP. Opening Statements: Getting It Right, Communications Lawyer, Dale M Cendali and Steven Rosenstein, November 2008.

ETHICS

Rule 1.13 Organization as Client http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_13_organization_as_client.html Rule 1.3 Diligence http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_3_diligence.html Rule 1.7 Conflict of Interest http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_7_conflict_of_interest_current_clients.html Rule 4.3 Dealing with Unrepresented Person http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_4_3_dealing_with_unrepresented_person.html David Adjmi v. DLT Entertainment, 97 F.Supp.3d 512 (S.D.N.Y., 2015) Salinger v. Colting, 641 F.Supp.2d 250 (S.D.N.Y.2009), vacated on other grounds, 607 F.3d 68 (2d Cir.,2010), cited in Adini v. DLT Entertainment, supra, and available at: http://www.ipinbrief.com/wp-content/uploads/2010/08/salinger-opinion.pdf Crowdsourcing and Intellectual Property Issues, Aug 29, 2012 http://www.acc.com/legalresources/quickcounsel/caipi.cfm

KE 40489910.2

The article below is reprinted with permission and is for reference in connection with the 29th

annual Media and the Law Seminar on April 29, 2016, at the InterContinental Hotel in Kansas

City, Missouri:

_____________________________________________________________________________

New Cases in Copyright Law – Internet and Beyond

Dale M. Cendali

Emma Raviv

Amanda Levendowski

Jordan Romanoff

KIRKLAND & ELLIS LLP

601 Lexington Avenue

New York, NY 10022

COPYRIGHT © 2016 - KIRKLAND & ELLIS LLP

The views, opinions, statements, analysis and information contained in these materials are those

of the individual presenters and do not necessarily reflect the views of Kirkland & Ellis LLP or

any of its past, present and future clients. These materials (1) do not constitute legal advice; (2)

do not form the basis for the creation of the attorney/client relationship; and (3) should not be

relied upon without seeking specific legal advice with respect to the particular facts and current

state of the law applicable to any situation requiring legal advice. These materials may only be

reproduced with the prior written consent of Kirkland & Ellis LLP. These materials are provided

with the understanding that the individual presenters and Kirkland & Ellis LLP are not rendering

legal, accounting, or other professional advice or opinions on specific facts or matters, and,

accordingly, such entities assume no liability whatsoever in connection with their use.

I. INTRODUCTION

Copyright law has deep roots, dating as far back as the 1710 Statute of Anne. The first

federal copyright act in the United States was passed in 1790, and it has been updated multiple

times since then. The most recent general revision, which took twenty years, resulted in the

Copyright Act of 1976. While older versions of federal copyright law were intended to have

more limited scope, the 1976 Act was specifically crafted to be forward looking with universal

2 KE 40489910.2

application to works and uses that existed at that time, as well as those that would be later

developed. While each copyright case presents its own unique set of circumstances, courts

always must look to the Act to determine how copyright cases should be decided. Advocates

have worked hard to apply the Act to new fact patterns since the 1976 Act was adopted, but the

rapid introduction of new technologies has required more creativity from the copyright bar in the

past twenty or thirty years.

A comprehensive discussion of all of the ways in which modern technology and other

advancements interact with copyright law is well beyond the scope of this article. Instead, this

article discusses recent developments in copyright law in the following areas: copyrightability,

copyright ownership and severability, infringement and defenses, damages, and music issues.

II. COPYRIGHTABILITY ISSUES

The Copyright Act makes clear that “[c]opyright protection subsists . . . in original works

of authorship fixed in any tangible medium of expression, now known or later developed, from

which they can be perceived, reproduced, or otherwise communicated, either directly or with the

aid of a machine or device.” 17 U.S.C. § 102(a). While the Act also provides a non-exhaustive

list of so-called “works of authorship” and the Supreme Court has held that a mere “modicum of

creativity” is required for a work to be copyrightable, Feist Publications, Inc. v. Rural Telephone

Service Co., 499 U.S. 340 (1991), modern cases continue to examine the bounds of what is

copyrightable and how far that copyright extends. Below, we consider those bounds with regard

to different types of works that were recently analyzed by the courts.

3 KE 40489910.2

A. Copyrightability of Batmobile —DC Comics v. Towle, 802 F.3d 1012 (9th Cir.

2015) cert. denied, No. 15-943, 2016 WL 361575 (U.S. Mar. 7, 2016)

The Ninth Circuit recently decided the copyrightability of the famous Batmobile from the

Batman comics and movies. DC Comics is the copyright owner of comic books featuring

Batman and his Batmobile. The Batmobile has varied in appearance over the years, but its name

and key characteristics as Batman’s personal crime-fighting vehicle have remained

consistent. DC Comics v. Towle, 802 F.3d 1012, 1016 (9th Cir. 2015). The defendant, Mark

Towle, produced custom replicas of the Batmobile as it appeared in both the 1966 television

show and the 1989 motion picture as part of his business at Gotham Garage, where he

manufactured and sold replicas of automobiles featured in various movies. Id. at 1017. Before

the lawsuit, he advertised his replicas as “Batmobiles” and used the domain name

batmobilereplicas.com. Id. DC Comics brought an action against Towle, alleging that Towle

violated DC Comics’ exclusive copyright and trademark rights by building and selling replicas

of the Batmobile as it appeared in the 1966 Batman television series and 1989 Batman film. Id.

The district court granted summary judgment for DC Comics, holding that the Batmobile

is a copyrightable character. See DC Comics v. Towle, 989 F. Supp. 2d 948 (C.D. Cal.

2013). The Ninth Circuit affirmed. DC Comics, 802 F.3d at 1026. In coming to its decision, the

Ninth Circuit set forth a new, three-part test to determine whether a character may be

copyrightable, noting that even a character without sentient capabilities, such as the

Batmobile, may nevertheless be protectable as a character. Id. at 1021. Within this framework,

the court found that the Batmobile possessed (1) physical and conceptual qualities, because it

was embodied as a three-dimensional car in the television series and film rather than merely as

an illustration or description, (2) consistent character traits an attributes, such as its sleek design,

crime-fighting capabilities, and overall power, and (3) especially distinctive attributes, namely as

4 KE 40489910.2

Batman’s side kick and a uniquely recognizable name. Id. at 1021-22. The court also

determined that DC Comics had a copyright interest in the derivative television and movie

productions and could bring suit for infringement of its copyright in the underlying work against

a seller of unauthorized replica cars copying the television and movie vehicles. Id. at 1024. The

court held that Towle not only infringed DC’s copyright in the Batmobile, but willfully infringed

DC’s trademark as well. Id. at 1026-27. Finally, the panel affirmed the district court’s ruling

that the defendant could not assert a laches defense to DC Comics’ trademark infringement claim

because he willfully infringed DC’s trademarks. Id. at 1026. On January 22, 2016, Towle file a

petition for a writ of certiorari to the Supreme Court, which was denied on March 7, 2016. See

DC Comics v. Towle, No. 15-943, 2016 WL 361575 (U.S. Mar. 7, 2016).

B. Copyrightability of Yoga Sequence — Bikram's Yoga Coll. of India, L.P. v.

Evolation Yoga, LLC, 803 F.3d 1032 (9th Cir. 2015)

The Ninth Circuit also recently considered the copyrightability of a sequence of yoga

poses. Bikram Choudhury, the plaintiff in the case and a central figure in the growing popularity

of yoga in the United States, opened his own studio in Beverly Hills, where he began offering

"Bikram Yoga" classes in 1971. Bikram's Yoga Coll. of India, L.P. v. Evolation Yoga, LLC, 803

F.3d 1032, 1035 (9th Cir. 2015). He developed a sequence of twenty-six asanas and two

breathing exercises, arranged in a particular order, which he calls the "Sequence.” Id. In 1979,

he published the book Bikram's Beginning Yoga Class, which includes descriptions,

photographs, and drawings of the Sequence's twenty-six poses and two breathing exercises. Id.

at 1035 - 36. He registered the book with the U.S. Copyright Office in 1979. Id. In 2002, he

also registered the “compilation of exercises” contained in the book, using a supplementary

registration form that referenced back to the 1979 book. Id. The defendants in the case enrolled

in and completed plaintiff’s “Bikram Yoga Teacher Training Course,” and a few years later, they

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founded a competitor yoga class business—Evolation Yoga. Id. at 1036. Plaintiffs sued

Evolation Yoga and the defendants alleging that defendants infringed “Bikram’s Copyrighted

Works through substantial use of Bikram’s Copyrighted Works” in defendants’ offering of yoga

classes. Id. The Ninth Circuit held the following. First, that the Plaintiffs' yoga sequence was

not a proper subject of copyright protection. Id. at 1037. Under the idea/expression dichotomy,

the sequence was “an idea, process, or system” designed to improve health, whereas copyright

protects only the expression of this idea, the words and pictures used to describe the sequence,

and not the idea of the sequence itself. Id. at 40. Second, the court found that Plaintiffs could

not obtain copyright protection for the sequence as a “compilation” due to his “selection,

coordination, and arrangement” of various poses and breathing exercises because the sequence

was “nevertheless a process.” Id. at 1042. Finally, the court held that the sequence was not a

copyrightable choreographic work, regardless of the definition of chirographic work, because it

remained a process ineligible for copyright protection. Id. at 1044.

C. Copyrightability of a Sandwich — Lorenzana v. S. Am. Restaurants Corp.,

799 F.3d 31 (1st Cir. 2015)

The First Circuit recently held that a Church’s Chicken “chicken sandwich is not eligible

for copyright protection.” Lorenzana v. S. Am. Restaurants Corp., 799 F.3d 31, 35 (1st Cir.

2015). Plaintiff employee worked for a franchisee of Church’s Chicken in Puerto Rico. Id. at

33. He created a new chicken sandwich dubbed the “Pechu Sandwich,” which was eventually

offered on Church’s menu in 1991. Id. Church’s Chicken applied for a trademark registration

for the name “Pechu Sandwich” with the Puerto Rico Department of State. Id. The registration

was transferred to defendant, South American Restaurant Corporation (“SARCO”). Id. SARCO

then registered the name “Pechusandwich” with the USPTO in 2006. Id. Plaintiff brought suit

claiming that SARCO” misappropriated his intellectual property” and that had he was entitled to

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a percentage of the profits derived from the Pechu Sandwich’s success. Id. Although his primary

claim was that SARCO committed fraud on the PTO in procuring the federal trademark

registration for the Pechu Sandwich, the district court construed the pleadings generously to also

allege a claim for copyright infringement. Id. at 34.

The court held that neither the recipe nor the name of the sandwich were entitled to

copyright protection. Id. The court found that a recipe, or set of instructions, which involves

“listing the combination of chicken, lettuce, tomato, cheese, and mayonnaise on a bun to create a

sandwich is quite plainly not a copyrightable work.” Id. The name “Pechu Sandwich” also was

not entitled to protection because copyright protection does not extend to ‘words and short

phrases, such as names, titles, and slogans.’ Id. at 35 (internal citations omitted).

III. COPYRIGHT OWNERSHIP

A. Validity of Copyright for Happy Birthday — Marya v. Warner/Chappell

Music, Inc., No. 13 Civ. 4460, 2015 WL 5568497, *1 (C.D. Cal. Sept. 22, 2015)

Good

Morning

Happy

Birthday

Good

morning

Happy

birthday

7 KE 40489910.2

A district court in California recently decided a dispute over

who owned the copyright in the famous “Happy Birthday To You”

song. Plaintiffs filed a class action to declare defendant

Warner/Chappell Music’s purported copyright in the famous song

“Happy Birthday To You” invalid. Marya v. Warner/Chappell

Music, Inc., No. 13 Civ. 4460, 2015 WL 5568497, *1 (C.D. Cal.

Sept. 22, 2015). The court noted that the classic melody of the

birthday song is the same as that of another song called “Good

Morning To All” and that the lyrics of the Good Morning song are

similar to Happy Birthday. Id. The lyrics to the Good Morning song were written at some time

before 1893 by a woman named Patty Hill while another woman named Mildred Hill wrote the

music. Id. at *8. They assigned their rights to another party—Summy Co.—in 1893. Id. at *1.

The Good Morning song appeared in a songbook, named “Song Stories.” Copyright protection,

however, both in the songbook and the Good Morning song expired in 1949 because under the

Copyright Act of 1909, works could receive copyright protection for two consecutive 28-year

terms. Id. The court noted that the origins of the Happy Birthday song were less clear but the

first reference to the birthday song appeared in an article in 1901 in the Inland Educator and

Indiana School Journal, but that article did not include the full song lyrics. Id. There were a few

other subsequent references to the song. Id. While Defendants claimed that Patty also wrote the

lyrics to the Happy Birthday song, Plaintffs claimed that someone else may have. Id. at *5.

The court emphasized the distinction between music and lyrics and noted that the parties

disagree only about the status of the Happy Birthday lyrics. Id. First, the court held that the

Defendants’ registration does not entitle them to a presumption of validity because it is unclear

to you to you

Good

morning

to you

Happy

birthday

to you

Good

morning

dear

children

Happy

birthday

dear

[NAME

]

Good

morning

to all.

Happy

birthday

to you.

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whether the Copyright Office “determined the validity of Summy Co.’s alleged interest in the

lyrics in 1935” and the registration was therefore flawed. Id. at *6. Second, the court proceeded

with a chronological examination of the the issues: (1) who wrote Happy Birthday (burden on

Defendants); (2) whether the lyrics were lost or abandoned at some point after they were written

(burden on Plaintiff); and (3) whether a valid transfer of rights occurred between the Hill sisters

and Summy Co. (burden on Defendants). Id. at *7.

First, the court held that there were genuine issues of material fact as to who wrote the

lyrics to Happy Birthday. Id. at *8. Second, the court held that because of the “Everyday Song

book,” there were genuine issues of material fact as to whether there was digestive publication

such that the common law copyright was extinguished. Additionally, the court held that there

there are triable issues of fact as to abandonment. Third, the court held that because Summy Co.

never actually acquired the rights to the Happy Birthday lyrics, Defendants, as Summy Co.'s

purported successors-in-interest, do not own a valid common law copyright in the Happy

Birthday lyrics. Id. at *20.

B. Definition of Authorship — 6 Casa Duse, LLC v. Merkin, 791 F.3d 247 (2d

Cir. 2015)

The Second Circuit recently decided a dispute over the copyright ownership of raw

movie footage contained in a hard drive where the director of the film asserted that he was the

rightful owner to that raw footage rather than the film production company. Casa Duse, a film-

production company based in Brooklyn, New York and owned and operated by Robert

Krakovski, made plans to produce a short film based on the screenplay Heads Up. 6 Casa Duse,

LLC v. Merkin, 791 F.3d 247, 251 (2d Cir. 2015). Krakovski asked film director Alex Merkin

whether he would be willing to direct the film. Id. Merkin agreed, and the two settled

9 KE 40489910.2

informally on a fee of $1,500 for Merkin's services. Id. Krakovski assembled a cast and crew

for the film, creating an ensemble of about thirty members. Id. Everyone in the crew, except

Merkin, entered into an Independent Contractor Agreement with Casa Duse to perform their

services as a work for hire. Id.

Krakovski repeatedly asked Merkin to also sign a similar agreement but Merkin failed to

to do so. Id. Despite the lack of a completed agreement, production began later that month. Id.

During production, which included three days of filming, Merkin “performed his role as director

by advising and instructing the film's cast and crew on matters ranging from camera angles and

lighting to wardrobe and makeup to the actors ' dialogue and movement.” Id. In June 2011,

Krakovski gave Merkin a hard drive containing the raw film footage in the hope that Merkin

would be able to edit the footage. Id. at 252. In the absence of a work-for-hire agreement, the

parties entered into a “Media Agreement” under which Merkin would edit but not license, sell, or

copy the footage for any purpose without the permission of Casa Duse. Id. After a back and

forth dispute over who was the rightful owner of the raw footage, and after Merkin registered the

copyright in the raw footage with the Copyright Office as the sole owner without Casa Duse’s

permission, Casa Duse brought suit. Id. The lower court granted summary judgment to Casa

Duse on all claims, along with fees against Merkin. Id. at 254.

The question the court considered was whether “a contributor to a creative work whose

contributions are inseparable from, and integrated into, the work maintains a copyright interest in

his or her contributions alone.” Id. The court concluded that, at least on the facts of the present

case, a contributor to a creative work may not maintain a copyright interest in his or her

contributions. Id. The Second Circuit held that “motion pictures directors such as Merkin may

… achieve copyright protection for their creative efforts … [b]ut a director’s contribution an

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integrated ‘work of authorship’ such as a film is not itself a ‘work of authorship’ subject to its

own copyright protection.” Id. 258-59 (emphasis in original). Additionally, the court agreed

with the district court that Casa Duse, as the “dominant author,” owned the copyright to all

versions of the work in question. Id. at 260. Taken together, the district court properly granted

summary judgment to Casa Duse on its copyright claims and did not abuse its discretion in

enjoining Merkin from interfering with Casa Duse’s use of the film. Id. at 264-65.

IV. INFRINGEMENT AND DEFENSES

The courts have had several opportunities to delineate the scope of infringement claims

and various defenses to such claims. The Ninth Circuit has recently revisited the “Gray Goods”

importation issue following the Supreme Court’s Kirtsaeng v. John Wiley & Sons, Inc. decision.

Further, various district courts have updated the fair use doctrine in light of the ease of copying,

manipulating, and distributing copyright works over the Internet. Courts have also revisited

predicate requirements for application of the Digital Millennium Copyright Act.

A. First Sale Doctrine for Computer Programs — Adobe Sys. Inc. v.

Christenson, 809 F.3d 1071 (9th Cir. 2015)

In Adobe Sys. Inc. v. Christenson, the Ninth Circuit had to address the burden of proof

applicable to the first sale defense to a copyright infringement claim. 809 F.3d 1071 (9th Cir.

2015). In the case, “the factual basis for Adobe's claims were simple: on his website,

Christenson sold Adobe software—which he purchased from a third-party distributor—without

Adobe's authorization, allegedly infringing Adobe's copyrights and trademarks in the process.”

Id. at 1074. Christenson, however, asserted a number of defenses, including the first sale defense

to the claim of copyright infringement. Id. Adobe moved for summary judgment and argued

that the first sale defense did not apply because Adobe only licenses and does not sell its

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software. Id. Christenson, in response, argued Adobe was the only entity that had full access to

the terms of its contracts with the original recipients of the copies at issue. Id. at 1075.

Christenson, as a “downstream distributor,” did not have access to this kind of information. Id.

As such, he asked the court to place the burden on Adobe “to disprove the first sale doctrine.”

Id. Under this burden, Christenson argued that Adobe could not disprove that a first sale

occurred because Adobe lacked the ability to note the terms of any actual contract. Id.

Christenson also offered, as evidence, his purchase of copies of Adobe software from third

parties. Id. The lower court ruled for Christenson on the copyright claim and noted that Adobe

could not produce evidence that it “merely licenses and does not sell” the software. Id.

The Ninth Circuit first considered the first sale defense, Adobe’s argument that they

license and do not sell, and opined that it had “recognized . . . that some purported software

licensing agreements may actually create a sale.” Id. at 1078. The court examined, when

determining there is a license versus a sale, whether “‘the copyright owner (1) specifies that the

user is granted a license; (2) significantly restricts the user's ability to transfer the software; and

(3) imposes notable use restrictions.’” Id. (internal citations omitted). The parties argued over

whether the burden of proof with regard to these factors fell on the plaintiff or defendant. Id.

The court found that the burden of proof is no different for the first sale defense than it is for any

other affirmative defense to a civil claim, which generally falls on the party asserting the

defense. Id. at 1079. Thus, the “party asserting the first sale defense bears the initial burden of

satisfying the statutory requirements . . . [and] that party must show ownership through lawful

acquisition.” Id. Since it was “uncontroverted” that Christenson purchased the copies of the

Adobe software, he “discharged his burden with respect to the first sale defense.” Id. at 1080.

The court held that the burden then shifts back to Adobe to prove the existence and terms of a

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license. Id. Due to the fact that Adobe had failed to produce licenses, which could have provided

evidence that Adobe “significantly restrict[ed] the user’s ability to transfer the software” at issue,

the Ninth Circuit held that the “district court’s order granting summary judgment in favor of

Christenson and against Adobe on the copyright claim is affirmed.” Id.

B. Mass Digitization and Fair Use — Authors Guild v. Google, Inc., 804 F.3d 202

(2d Cir. 2015)

A decade after the case began, the Second Circuit found in Authors Guild v. Google, 804

F.3d 202 (2d Cir. 2015), that creating digital copies of copyright-protected works to provide

search functionality is a transformative fair use. Id. at 5.

Judge Leval emphasized the importance of the “transformativeness” factor of fair use.

Id. at 10. The court noted that Google’s purpose in copying the copyrighted books was to make

available information about the books and found that such copying was “the sort of

transformative purpose” described by the Supreme Court in Campbell v. Acuff-Rose Music, Inc.1

The court found the purpose of making digital copies of books to provide “snippets” from those

books available freely and publicly online, as well as provide complete digital copies of books in

library collections to libraries, was “highly transformative.” Id. at 21. Transformative uses, the

court reasoned, “tend to favor a fair use finding because transformative use is one that

communicates something new and different from the original or expands its utility, thus serving

copyright’s overall objective of contributing to public knowledge.” Id. at 11.

Notably, Google digitized copyright-protected books in their entirety without

authorization and did so for a commercial purpose. Even so, the court nevertheless found that

neither of these fair use factors was dispositive: the amount copied was “literally necessary” to

achieve Google’s transformative purpose and, the court posited, the likelihood of lost sales to

1 510 U.S. 569 (1994) (holding that a for-profit parody could nevertheless be fair use).

13 KE 40489910.2

authors attributable to the snippet view function would “generally occur in relation to interests

that are not protected by copyright.” Id. at 17.2 As such, the court found that digitization of

copyright-protected works did not “justify denial of fair use” as a defense. Id. at 21.

C. Enforcement and DMCA — Lenz v. Universal Music Corp., 801 F.3d 1126

(9th Cir. 2015), amended and superseded on Denial of Rehearing by Lenz v.

Universal Music Corp., No. 13 Civ. 16106, 2016 WL 1056082 (9th Cir. March

17, 2016)

In Lenz v. Universal Music Corp., 801 F.3d 1126 (9th Cir. 2015), amended and

superseded on denial of reh’g, Lenz v. Universal Music Corp., No. 13 Civ. 16106, 2016 WL

1056082 (9th Cir. March 17, 2016), the Ninth Circuit held that copyright owners must make a

good faith accounting for fair use before issuing a takedown notice under the Digital Millennium

Copyright Act (“DMCA”).3

Pursuant to the DMCA, the individual issuing a takedown notice must state that the

individual has good faith belief that the content “is not authorized by the copyright owner, its

agent, or the law.” Id. at *2.4 Abuse of the DMCA may be subject to liability under Section

512(f), which provides that any person who “knowingly materially misrepresents . . . that

material or activity is infringing” may be liable for damages. Id. at *3.5 Stephanie Lenz

uploaded a 29-second video of her son dancing to Prince’s song, “Let’s Go Crazy,” which she

titled “‘Let’s Go Crazy’ # 1.” Id. at *2. Universal, who was the primary publishing

administrator tasked with enforcing Prince’s copyrights, issued a takedown notice pursuant to the

2 The snippet function permits a viewer to search for a particular word or phrase across many books, as well as

throughout a particular book, and view the context in which the word or phrase appears. Id. at 16. As the court

reasoned, many searchers would be likely to “derive[ ] from the snippet a historical fact,” to which an author

can claim no copyright. Id. at 18. 3 The Digital Millennium Copyright Act provides a process for providing notice that infringing content is being

hosted by a service provider which includes providing the signature of a person authorized to act on behalf of

the copyright owner, identifying the allegedly infringed work, and identifying the allegedly infringing works

that are being hosted. See 17 U.S.C.§ 512(c)(3). 4 See 17 U.S.C.§ 512(c)(3)(A)(v). 5 See § 512(f)(1).

14 KE 40489910.2

DMCA identifying Lenz’s video as infringing. Id. Lenz argued that her video was clearly a fair

use and that Universal was subject to the provisions of Section 512(f) for failing to adequately

account for that possibility. The court noted that, even though fair use is positioned as an

affirmative defense, a “copyright holder must consider the existence of fair use before sending a

takedown notification under [Section] 512(c).” Id. at *5. The Ninth Circuit recently issued an

amended opinion in the case, which eliminated portions of the decision indicating that the pre-

takedown fair use analysis “need not be searching or intensive.”

D. Digital Streaming Performance Rights—Fox Television Stations, Inc. v.

FilmOn X LLC, No. CV 13-758 (RMC), 2015 WL 7761052 (D.D.C. Dec. 2,

2015)

An online television streaming service named FilmOn X attempted to persuade two

courts—a California district court and a DC district court— that it was a “cable system” under

Section 111 and therefore entitled to statutory licenses, to differing results. Fox Television

Stations, Inc. v. AereoKiller, 115 F. Supp. 3d 1152 (C.D. Cal. July 16, 2015); Fox Television

Stations, Inc. v. FilmOn X LLC, No. CV 13-758 (RMC), 2015 WL 7761052 (D.D.C. Dec. 2,

2015). Similar to Aereo, a service the Supreme Court shut down in 2014 after unfavorable

decisions in the lower courts, see American Broad. Cos. v. Aereo, Inc., 134 S. Ct. 2498 (2014),

FilmOn X transmits over-the-air TV signals to consumers via the Internet. Unlike the Southern

District of New York decision about Aereo’s technology, however, the California

court declined to adopt the Second Circuit’s interpretation of “facility” and

“other communications channels” under Section 111 to include Internet transmission services

like Aereo and FilmOn X. The court took issue with the Second Circuit’s adherence to

the Copyright Office’s longtime refusal to apply Section 111 compulsory licenses to Internet-

based retransmission services. AereoKiller, 115 F. Supp. 3d at 1167-68. The court interpreted

15 KE 40489910.2

Section 111’s definition of a “cable system” in a manner that essentially decided that previous

decisions defining a cable system as requiring specific technical facilities were incorrect. As

long as the system retransmitted television programs to the public for a fee, it can be defined,

according to the California court, as a cable system entitled to rely on the compulsory license of

Section 111. Id. That license allows the system to retransmit the television programming as

long as it files the appropriate papers with, and pays the appropriate fees to, the Copyright

Office. The court noted the significant commercial importance of the legal questions at issue,

and called for an immediate appeal to the Ninth Circuit, staying the determination of the

remaining issues until the appeal. Id. at 1154.

In contrast to the California FilmOn X decision, the D.C. district court squarely held that

FilmOn X was not a “cable system.” FilmOn X LLC, 2015 WL 7761052, at *2. The court

heavily weighted the Copyright Office’s position, as well as the Copyright Act’s legislative

history, and interpreted “cable system” as used in Section 111 to require both

receipt and secondary transmission of a broadcast signal via “wires, cables, microwave,

or communications channels” controlled by the cable system itself. Id. at *4. The California

court had analyzed this language as well, and found that the Internet was a “communications

channel”; the D.C. court, however, did a more searching analysis and found that Internet

transmissions do not qualify as cable systems under this definition, because mere reception of the

TV signals coupled with the connection to the Internet were not the same as if the system itself

delivered the programming using its own cables and wires. Of course, the Internet might use

wires, cables, microwaves and similar communications channels. However, the D.C. court noted

that the company claiming to be the cable provider (here, FilmOn X) does not control these

channels when they deliver the programs to subscribers. Rather, once the programming is

16 KE 40489910.2

delivered to the Internet, FilmOn X does not play any role in deciding how the consumer

accesses that programming. In coming to its decision, the D.C. court analogized FilmOn X to

satellite television services that made the same argument FilmOn X was trying to make. The

satellite industry was deemed not to be a cable system under Section 111, however, since it did

not have any local facilities to deliver programming to consumers. Id. at *11.

The court therefore found that transmission solely over the Internet did not qualify

FilmOn X for a compulsory license, and held that the company was liable for infringing

Fox’s right of public performance, in line with the Supreme Court’s reasoning in Aereo. Id. at

*24.

V. MUSIC ISSUES

Aside from software copyrightability, the intersection of music and copyright has perhaps

been the area of copyright law foremost in the public mind. Various aspects of copyright law

and music issues have received judicial attention in recent years, including antitrust issues, music

as in-flight entertainment, and copyright applicability to pre-1972 sound recordings.

A. Substantial Similarity — Williams et al v. Bridgeport Music Inc. et al, No. 2:13

Civ. 06004, 2014 WL 7877773 (C.D. Cal. Aug. 15, 2013)

In Williams, et al v. Bridgeport Music, Inc., No. 2:13 Civ. 06004, 2014 WL 7877773

(C.D. Cal. Aug. 15, 2013), the Central District of California declined to grant summary

judgment, finding that the disparate testimony of several experts regarding the substantial

similarity of two musical compositions created “a sufficient disagreement" to present a genuine

issue of material fact. Id. at *15.

Musicians Pharrell Williams and Robin Thicke brought an action seeking declaratory

judgment that their summer hit, “Blurred Lines,” did not infringe the copyright to Marvin Gaye’s

17 KE 40489910.2

“Got To Give It Up.” Id. at *1.6 The court was tasked with dissecting the “constellation” of

alleged similarities—and counterarguments—discussed by both parties’ musicologist experts.

Id. at *4-5. Williams and Thicke argued any similarities between the songs, to the extent that

such similarities existed, were the result of a “common musical idea or device” and amounted to

nothing more than unprotectable scenes a faire. Id. at *10, *14. The court, however, declined to

filter out the allegedly unprotected elements of Gaye’s song, explaining, “[i]t is inappropriate to

grant summary judgment on the basis of scenes a faire without independent evidence, unless the

allegation of scenes a faire is uncontested.” Id. at *14. The court concluded that the “intrinsic

similarity of the works” was a question best left to the jury.7

B. Pre-1972 Sound Recordings — Flo & Eddie, Inc. v. Sirius XM Radio, Inc., 80

F.Supp.3d 535 (S.D.N.Y. Jan. 15, 2015); Flo & Eddie, Inc. v. Sirius XM Radio,

Inc., No. 13-23182-CIV, 2015 WL 3852692, at *1 (S.D. Fla. June 22, 2015)

While the UMG court analyzed the intersection of state copyright law and federal

deregulatory law, the scope of state copyright law governing pre-1972 sound recordings alone

has recently been addressed in the district courts as well. Both the Southern District of New

York and the Southern District of Florida have analyzed how much protection California and

New York copyright statutes provide to owners of copyrights in pre-1972 sound recordings

through two cases featuring identical parties. Flo & Eddie, a corporation that owns all rights to

the master recordings of various songs recorded in the 1960’s by The Turtles, sued Sirius XM in

the Southern District of New York and the Southern District of Florida for unlicensed public

6 The action also sought declaratory judgment holding that Williams and Thicke’s less popular song, “ Love

After War” similarly did not infringe on Gaye’s copyright in “After the Dance.” Notably, Williams and Thicke

conceded that they had access to both Gaye songs when composing their own songs. Id. at *2. To further

complicate the case, both Gaye songs were created and registered prior to the 1976 Act, and thus analyzed

under the 1909 Act. See id. at *6. 7 The initial $7.3 million jury verdict was reduced to $2.1 million, with a provision that 50% of future royalties

from “Blurred Lines” would be paid to Gaye’s family. See No. 2:13 Civ. 6004 (C.D. Cal. July 14, 2015),

available at http://www.courthousenews.com/2015/07/15/Blurred%20Lines%20Ruling.pdf.

18 KE 40489910.2

performances of The Turtles songs over Sirius’ subscription-based satellite and Internet radio

services.8 While Sirius paid royalties to the holder of the copyright in the musical compositions,

it did not pay royalties to Flo & Eddie, holder of the copyrights in the sound recordings. Flo &

Eddie sued under state copyright and unfair competition laws in both New York and Florida.

1. Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 13 Civ. 5784, 2014 WL 6670201 (S.D.N.Y. Nov. 14, 2014)

The Southern District of New York concluded in Flo & Eddie, Inc. v. Sirius XM Radio,

Inc., No. 13 Civ. 5784, 2014 WL 6670201 (S.D.N.Y. Nov. 14, 2014), that New York common

law granted owners of sound recordings a right to publicly perform their works.

Following the the enactment of the 1971 federal Copyright Act, New York chose to

continue to enforce its preexisting body of copyright common law for pre-1972 sound recordings

rather than issue an explicit copyright statute. Id. at *9. However, New York common law had

never before addressed whether the owners of copyright in pre-1972 sound recordings had the

right to public performance, though it did provide such owners with the exclusive right to

reproduction. Id. at *10. The court examined the background principles and history of New

York copyright common law, and reasoned that years of judicial silence on the matter evidenced

that New York considered common law copyright in sound recordings to include all rights

accorded to other works.9 It also noted that Congress’s explicit carving out of the public

8 The function of Sirius’ satellite and Internet radio services potentially infringed Flo & Eddie’s copyrights by

creating multiple functional and permanent copies, and then performing those copies publicly. Sirius did not

own licenses for copying or performance of Flo & Eddie’s copyrights. Id. at 5. Sirius stored its permanent

digital music library on three databases, as well as subsets of the music library on smaller, off-site databases.

As part of preparing a music file for broadcast, Sirius would create an additional copy of the file on a “play-out

service.” Id. at 3. Further, Sirius made partial copies of some recordings to properly time radio host voice

overs, and created additional partial copies of songs in order to “buffer” them for internet streaming. Id. at 5. 9 Specifically, the court stated that “[n]o New York case recognizing a common law copyright in sound

recordings has so much as suggested that right was in some way circumscribed, or that the bundle of rights

appurtenant to that copyright was less than the bundle of rights accorded to plays and musical compositions.”

Id. at *12.

19 KE 40489910.2

performance right for sound recordings in the 1971 Copyright Act amendment supported an

argument that any curtailment of the bundle of rights appurtenant to copyright required an

“express carve-out” by the legislature. Id. at *12. Thus, Flo & Eddie’s ownership of copyright

in their pre-1972 sound recordings included the exclusive right to public performance, a right

Sirius violated by creating and distributing copies of the sound recordings for performance to

airline passengers for in-flight entertainment. Id. at *15–16.

In Flo & Eddie, Inc. v. Sirius XM Radio Inc., the court held that, in response to

the briefings on the order to show cause, the court “will not at this time enter summary judgment

in favor of Flo and Eddie. If Flo and Eddie wishes to proceed individually and not as a class

representative, it should so notify the Court, at which point summary judgment as to liability will

be entered in its favor.” 80 F. Supp. 3d 535, 537 (S.D.N.Y. 2015).

2. Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 13-23182-CIV, 2015 WL 3852692, at *1 (S.D. Fla. June 22, 2015)

As with the other Flo & Eddie cases, Flo & Eddie filed a “purported class action” against

Sirius for common law copyright infringement, unfair competition, conversion, and civil theft

related to its sounds records. Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 13-23182-CIV,

2015 WL 3852692, at *2 (S.D. Fla. June 22, 2015). Sirius moved for summary judgment on the

argument “that Flo & Eddie . . . [do not have] public performance rights in The Turtles’ pre-1972

sound records and that its back-up and buffer copies do not violate any of Flo & Eddie’s rights.”

Id. The court noted that the question is, under Florida common law, “the extent to which Florida

law protects Flo & Eddie's rights in those recordings.” Id. at *3. First, with regard to public

performance, as there is no Florida statute covering sound recording property rights, the court

determined “that the issue of whether copyright protection for pre-1972 recording should include

20 KE 40489910.2

the exclusive right to public performance is for the Florida legislature.” Id. at *5. Second, the

court found that Sirius’ “buffer and back-up copies do not constitute an improper reproduction”

because these copies are not maintained by Sirius or accessible to the public. Id. at *6. The

court thus granted Sirius’ motion for summary judgment. Id. An appeal has since been filed in

the Eleventh Circuit. See Flo & Eddie, Inc. v. Sirius XM Radio, Inc., No. 15 Civ. 13100 (11th

Cir. 2015).

VI. CONCLUSION

This article is by no means comprehensive: such is the scope and rapid pace of the

revolutions of copyright law in the Internet age that doctrines are being reevaluated and

reinterpreted at this very moment. Practitioners accustomed to rote, by-the-book practices

cannot survive in such a thrilling legal environment. The opportunity for advocacy and

innovative legal practice has never been greater. Keeping abreast of the development of

copyright law is thus both a challenge and a duty, one that shows no signs of lessening.

The cases discussed above demonstrate what a busy and exciting time it is for copyright

law. Copyright doctrines both old and new are being applied to myriad types of works, from

software to musicals, artwork to music, and watches to books. The modern copyright attorney

must keep on her toes: there is more to learn each and every day.

1

The article below is for reference in connection with the 29th annual Media and the Law

Seminar on April 29, 2016, at the InterContinental Hotel in Kansas City, Missouri:

_____________________________________________________________________________

©2008 by the American Bar Association. Reprinted with permission. All rights reserved. This

information or any or portion thereof may not be copied or disseminated in any form or by any

means or stored in an electronic database or retrieval system without the express written consent

of the American Bar Association.

Opening Statements: Getting it Right

Dale M. Cendali and Steven A. Rosenstein

Communications Lawyer – Vol. 26, #1 (November 2008)

Eight Steps to a Powerful Opening

Dale M. Cendali, Steven A. Rosensteina1

Copyright © 2008 by American Bar Association; Dale M. Cendali, Steven A. Rosenstein

During opening statements, you get to address directly the trier of fact in your own words. It is

your chance to describe what the evidence at trial will show. While witnesses will elaborate on

the points that are made in the opening, each witness typically just covers a slice of the overall

story. And with witnesses, there may be presentation issues—some witnesses may be better than

others. But during the opening, you can describe the facts in an efficient, organized, and clear

fashion. Moreover, the timing of the opening— before the hurly-burly of the trial starts—will

give you time to prepare carefully. The opening will also help establish your style and

credibility, and you may be able to build a connection with the trier of fact.

You want to make the most of the opportunity. Below are some tips to keep in mind in preparing

an opening.

Find Out the Judge's Preferences

Before you can prepare your opening, you first need to find out the ground rules. It is imperative

to find out ahead of time the judge's preferences as to openings for your case. Will there be time

limits? Will there be a podium? Must you stay behind the podium or will you be able to walk

around? Will you be allowed to use exhibits and, if so, must they be pre-admitted? Will you be

allowed to use demonstrative exhibits and, if so, will you need to exchange them ahead of time

with the opposing party? Is so, when? If the case is high profile, how will the judge handle

publicity and the press? Most important, if the case is a bench trial, will the judge even permit

openings?

Each of those questions will affect how you prepare and deliver your opening. This information

can be gained, for example, by researching the judge's standing orders, sending a joint letter to

the judge inquiring as to these issues, or finding out during a scheduling conference.

2

Consider Whether the Trier of Fact May Have Preconceptions

Another background consideration is what preconceptions the trier of fact might have about the

media industry in general or your client in particular. Media companies are so well-known that

preconceptions about them are likely, and some of them may be surprising. While you will be

naturally attuned to consider this factor during a jury trial, do not ignore it in a bench trial. If the

judge is the trier of fact, his or her past rulings and legal experience before joining the bench may

help provide some guidance as to the judge's sympathies, although those are obviously imperfect

guides.

For a jury trial, it is essential to try to figure out what preconceptions jurors might have before

the trial. Figuring out possible juror preconceptions is not easy. While juror questionnaires work

to some degree (if the court permits them), if it is financially and logistically possible, formal or

informal jury research can be extremely helpful toward recognizing what preconceptions a jury

might have.

To the extent a media company is perceived as wealthy or powerful, that could create a negative

impression. On the other hand, if the jury recognizes the media company's role in providing

creative entertainment and jobs, it may be possible to show a different side to the company.

Moreover, you may also be able to put a face on a large company by highlighting individuals and

their particular efforts, or may be able to give the trier of fact something tangible to care about

such as encouraging creativity or prohibiting “free riders.”

Define the Issues on Your Terms

A threshold goal for an opening is to define the issues of the case in your terms. You want to

raise the questions that will resolve the case, but present them in a manner that leads to the

answer that you want the trier of fact to reach. Quite simply, from your client's perspective, what

is this case about? What do you want the trier of fact thinking about throughout the trial?

Strongly and clearly inform the trier of fact of what needs to be decided and why.

Establish Case Themes

Another goal is to introduce your case themes, which will flow from the issues that you set-up.

Whether before a judge or jury, summarize your case in memorable and understandable themes.

Trying to simplify complex issues is an especially good idea.

For example, I recently tried a copyright infringement case against a publisher whose primary

defense was fair use. To simplify the analysis of the four factors of the fair use defense, I noted

repeatedly during the opening that the disputed book “took too much but did too little.” That

phrase first served to highlight what I believed to be the disputed book's wholesale copying of

the author's copyrighted works. It also emphasized our view that the disputed book did not

provide enough new analysis, commentary, or original thought to justify a fair use defense. It

became a convenient phrase to use when examining witnesses, and I returned to it again at

closing. Thus, that phrase helped to establish a simple, consistent theme throughout the trial.

3

Also remember that your case theme may be what is repeated by the press in high-profile cases.

For the same reasons it should grab the trier of fact's attention, it will likely as well grab the

press's attention as well.

Provide a Road Map of Your Evidence

The opening statement serves as your introduction to the trier of fact of not only the overall

issues, but also what you believe the evidence is regarding those issues. In simple terms, the

opening statement is supposed to plainly and coherently lay out what you believe the evidence

will be. The trier of fact will be able to better understand the evidence with an overall road map

that illustrates how the testimony and exhibits, which will be displayed in scattered pieces over

the course of the trial, fit into the bigger picture of the case. Your road map should make clear

what you believe is the key evidence, so that the trier of fact pays attention to that evidence when

it is introduced, understands why it matters, and remembers it at the conclusion of the case.

If the judge permits you to use exhibits in your opening, the opening is a great time to start

highlighting the important documents that tell your story. In addition, you may also wish to

present evidence that calls in doubt the credibility of the other party's witnesses. This could

create a negative impression of or suspicions about witnesses before they take the witness stand.

When you turn to the nitty-gritty of the particular evidence at issue, a jury might especially be

disappointed that the case is not turning into a television show or movie version of a trial, and is

instead more detailed and slow moving than they expected. It is here that you will have to work

hard to keep their attention and focus while you are highlighting your evidence. For that reason,

you should be careful in what evidence you select and how you use it, so that you keep hitting

big, important points, and do not lose the trier of fact's interest.

Do Not Oversell

While you want to be persuasive, you need to be able to deliver on the promises that you make in

your opening. If not, the other party will remind the trier of fact at closing that you promised to

prove a fact, but failed to do so. Overselling can destroy your credibility and cause the trier of

fact to forget about everything that you are able to prove. Conversely, if you were able to prove

the evidence that you outlined in the opening, your closing is the perfect time to gently make

clear that you delivered on your promises.

Address the Other Side's Case

The opening statement should address the other side's case—but with great care to avoid

focusing too much on your opponent's story and not enough on your own. Otherwise, it may

seem too defensive. Nonetheless, you may need to defuse evidence that you know the other party

will rely on by explaining your view of it. At other times, you may need to simply attack the

other side's case. For example, you may need to discuss a disputed factual contention that the

other side might otherwise present in a conclusory fashion because, if you do not do so, the trier

of fact may assume that particular fact is undisputed.

Fit the Opening to Your Personal Style

4

These tips can be helpful to crafting an effective opening, but there is, of course, no one way to

deliver an opening. The opening must fit your personal style. Whether that style is analytical or

impassioned, or formal or more informal, what matters is that you present a clear and convincing

story while demonstrating confidence in your case.

Footnotes

a1

Dale M. Cendali (dcendali@omm.com) is a partner and Steven A. Rosenstein

(srosenstein@omm.com) is a counsel in the New York office of O'Melveny & Myers LLP.

1

David Adjmi v. DLT Entertainment, 97 F.Supp.3d 512 (S.D.N.Y., 2015)

Opinion and Order

Loretta A. Preska, Chief Judge:

This is an action for declaratory judgment brought by David Adjmi (“Adjmi”) against DLT

Entertainment LTD (“DLT”). Adjmi is a playwright who authored 3C, a play based on the 1970's

television comedy series Three's Company. The play was produced for a limited run Off

Broadway in 2012 by Rattlestick Products, Inc., Rising Phoenix Repertory, Inc., and Piece By

Piece Productions, Inc. (the “Production Companies”). DLT, the copyright holder of Three's

Company, sought to halt all performances of 3C and claims that the play infringes DLT's

copyright in Three's Company. Adjmi wishes to authorize publication of 3C and licensing of the

play for further production and therefore brings this action seeking a declaration that 3C does not

infringe DLT's copyright in Three's Company. Adjmi's motion [dkt. no. 34] is GRANTED for

the following reasons.

I. BACKGROUND AND PROCEDURAL HISTORY1

On June 6, 2012, 3C began a run Off Broadway at Rattlestick Playwrights Theater

(“Rattlestick”), located in New York City. (FAC ¶ 60, Ex. C; Answer ¶ 61.) Shortly thereafter,

on or about June 14, 2012, lawyers representing DLT sent a “cease-and-desist” letter to

Rattlestick, among other parties, asserting that 3C infringed DLT's copyright in Three's

Company and demanding that Rattlestick “cease further performances of [3C ]; provide ... an

accounting of all revenues derived from 3C to date; and furnish DLT with ... written assurance

that [Rattlestick and others] will fully comply with these demands.” (FAC ¶ 61; Answer ¶ 61.)

Although; 3C' s production ended in July 2012 (FAC ¶¶ 61), DLT's “cease-and-desist” letter

resulted in a back-and-forth between Adjmi's counsel and lawyers for DLT. (FAC ¶¶ 62–66;

Answer ¶¶ 62–66.)

The reason for the continued correspondence, and for the present action, is because Adjmi claims

he has received an offer to publish 3C and to license its performance.2 (FAC ¶ 67.) DLT, for its

part, has refused to reconsider its initial position and continues to assert that 3C infringes upon

its copyright in Three's Company. (FAC ¶ 68; Answer ¶ 68.) This position presents a de facto

roadblock to future publication or production of 3C, which Adjmi now seeks to remove.

To that end, on January 30, 2014, Adjmi filed the Complaint against DLT, seeking a declaratory

judgment that 3C does not infringe upon DLT's copyright in Three's Company. Thereafter,

Adjmi filed the First Amended Complaint, and DLT filed its Answer. DLT's Answer asserts

counterclaims (the “Counterclaims”) on behalf of DLT and Three's Company (together, the

“Joint Venture”) for copyright infringement against Adjmi and the Production Companies.3

Adjmi, in turn, denies those claims in his Answer to the Counterclaims.

On August 24, 2014, Adjmi moved for judgment on the pleadings. (Motion for Judgment on the

Pleadings, dated Aug. 25, 2014 [dkt. no. 34] (the “Motion”).) A few days later, on August 28,

2014, Adjmi also moved for a stay of discovery pending the disposition of the earlier Motion.

(Motion to Stay Discovery, dated Aug. 28, 2014 [dkt. no. 38] (“Discovery Motion”).)4

2

Following briefing and oral argument, United States District Judge Thomas P. Griesa

GRANTED Adjmi's Discovery Motion. (See Order, dated Oct. 2, 2014 [dkt. no. 47].)

Accordingly, DLT5 and Adjmi6 then proceeded to complete briefing the present Motion.

II. THE PLEADINGS

The Court's recitation of the facts and allegations is drawn from the pleadings and the exhibits

incorporated therein. As described in detail below, the standard of review for a 12(c) motion

requires that all pleadings be taken to be true, but that any inconsistencies between the

allegations in the pleadings be resolved in favor of the non-moving party, here DLT. However,

this does not require the court to accept legal conclusions or characterizations in DLT's

pleadings. (See infra III.A.)

The pleadings—specifically the Complaint, Answer, Counterclaims, and Answer to the

Counterclaims—present different conceptions of Three's Company and 3C. Rather than classify

each claim and counterclaim as either a legal conclusion or characterization or, in the alternative,

a non-conclusory statement with basis in fact, the Court relies on the underlying source material:

nine seasons of Three's Company and the screenplay (and certain reviews) of 3C, each

incorporated by reference in the pleadings.7 II.A and II.B supply brief backgrounds of Three's

Company and 3C, respectively, before presenting a more detailed account of the two works.

A. Three's Company

Three's Company was one of the most popular television shows of the 1970's. (FAC ¶ 17;

Answer ¶ 17.) From its debut in the spring of 1977 to its final season in 1984, the series was

almost continuously among the top ten shows according to the Nielsen ratings, attaining the top

spot in the 1978–1979 season. (FAC ¶ 17; Answer ¶ 17.) Three's Company was a situation

comedy that revolved around three single roommates sharing an apartment in Santa Monica,

California. (FAC ¶ 18; Answer ¶ 18.) As described on the cover of the Season One DVD:

John Ritter stars as Jack Tripper ... the ever-bumbling bachelor who shares an apartment with

down-to-earth Janet Wood (Joyce DeWitt) and dim-bulb blonde Chrissy Snow (Suzanne

Somers). Along with their sexually frustrated landlords the Ropers ... and Jack's fast-talking pal

Larry ... these three outrageous roommates tripped and jiggled through a world of slapstick

pratfalls, sexy misunderstandings and some of the most scandalously titillating comedy America

had ever seen.

(Season One DVD cover.) The plot was based on a British situation comedy called Man About

the House, which also featured three roommates, two female and one male, in which the male

roommate pretended to be homosexual. (FAC ¶ 19; Answer ¶ 19.) And as in Man About the

House, the male roommate in Three's Company–Jack–pretends to be homosexual. (FAC ¶ 18;

Answer ¶ 18.) Three's Company was considered daring for its time, in that it featured three

single, opposite-sex adults platonically sharing an apartment in the late 1970s. (FAC ¶ 20;

Answer ¶ 20.) Indeed, the issues tackled by Three's Company were revolutionary. (FAC ¶ 25;

Answer ¶ 25.)

3

Although the pleadings incorporate by reference all nine seasons of Three's Company, the parties

explicitly reference seven episodes.8 Accordingly, the Court focuses its analysis on those

particular episodes in reviewing specific sequences referenced by the pleadings and in forming a

general impression of Three's Company.

1. Season 1, Episode 1: A Man About the House

Three's Company' s pilot episode, like each subsequent installment, opens with a montage: Jack

rides his bicycle by the ocean before becoming distracted admiring a female passer-by and

tumbling into the sand, grinning; Janet tends to her flowers then playfully pours water on a sun-

bathing and scantily-clad Chrissy; all while the familiar chorus of “Come and Knock on My

Door”9 plays in the background. The whole sequence evinces a happy-go-lucky, carefree feel—

an appropriate harbinger for the pilot episode and the series as a whole.

Following the lead-in, the show opens with Chrissy and Janet proverbially (and literally) picking

up the pieces after hosting what appears to have been a rousing going-away party for their former

roommate, Eleanor. Janet incredulously asks Chrissy what the latter put in her mysteriously

strong green punch, before bashfully asking “That awful girl at the party last night, the one

giggling and trying to do a striptease ... that was me, wasn't it?” The whole conversation is more

palm-to-forehead funny than hand-in-head serious, replete with laugh track.

The coup de grace comes when the pair of roommates finds a strange man sleeping in the

bathtub. This, of course, starts in motion what becomes the central plot theme: an attractive,

heterosexual man living with two attractive, heterosexual women in an entirely platonic—albeit

innuendo-laden—manner. The getting-to-know you segment includes Janet's approaching Jack,

threatening him with a punch ladle (still green from Chrissy's punch concoction); the women's

thawing a bit as they realize Jack mistakenly passed out in the tub; Jack and Chrissy's flirtatious

bantering; and, finally, Jack's donning a woman's dress as the trio sits down for breakfast.

Ghrissy makes inedible toast (“It's not my fault, Eleanor didn't leave the recipe!”) and eggs

before Jack, who turns out to be a chef-in-training, reverses assumed 1970s gender roles by

cooking breakfast himself.

While all this is happening upstairs, downstairs Mr. and Mrs. Roper play a familiar trope:

curmudgeonly, stuck-in-his-ways old man and his sarcastic but ultimately loving wife. The

ensuing exchange typifies the couple's repartee: Mrs. Roper responds to her husband's

complaints about the prior night's noisy party by reminiscing about an earthquake “the first time

our bed's moved in years,” which draws an equally biting comment from Mr. Roper, “It's a

shame you don't live in India, you'd be sacred there.”

The remainder of the episode is a humorous lead-up to the Ropers' ultimately discovering that

Jack, still wearing Eleanor's dress, intends to become Chrissy and Janet's third roommate.

Because the portrayal of Jack's sexuality is at issue, it is helpful to provide a few examples

representative of Three's Company' s treatment of that topic:

JANET: (on Jack's appearance in Eleanor's dress) She looks dreadful without makeup.

4

MR. ROPER: (on hearing there is a man in Chrissy and Janet's apartment) A man up there, in

woman's clothes? Are you sure? They all look alike nowadays!

MRS. ROPER: (paraphrasing Mr. Roper) ‘[I] won't have any weirdoes or hanky panky in my

house’ ... he thinks Queen Victoria was a swinger!

Consistent with those reactions, the Ropers initially prohibit Jack from living with Chrissy and

Janet. However, the couple relents after Janet—with Jack and Chrissy in another room—falsely

tells the Ropers that Jack is, in fact, homosexual. With the prospect of unwed “hanky panky”

eliminated, Mr. Roper, sporting a knowing smile, suddenly turns benevolent and consents to Jack

as Chrissy and Janet's roommate. In response to Jack and Chrissy's incredulity regarding Mr.

Roper's sudden change of heart, Janet explains, “Told him Jack was a decent, respectable, hard-

working man ... Also told him you were gay!” whereupon the new roommates collapse in

laughter.

With that summary of the pilot episode as background, the Court now summarizes the other

episodes cited in the pleadings, with an eye toward matters in dispute.

2. Season 1, Episode 2: And Mother Makes Four

Episode Two, And Mother Makes Four, provides the first test for Jack's secret—that he is a

heterosexual man posing as a homosexual one. The challenge comes in the form of a visit from

Chrissy's mother, Mrs. Snow. Mr. and Mrs. Snow reside in Fresno, where Mr. Snow serves as a

minister, and view Los Angeles as something approximating Sodom and Gomorrah.

Accordingly, Chrissy, Janet, and Jack take great pains to prevent Mrs. Snow from learning that

Jack is the new third roommate. This involves Jack and Janet's vacating the apartment to join

Mrs. Roper for a drink at the local bar where, after Jack leers at an attractive barmaid, Mrs.

Roper guesses that Jack is in fact heterosexual and proceeds to make half-serious advances

toward him.

The roommates wait for Mrs. Snow to fall asleep before sneaking into the apartment. Mrs. Snow

is sleeping in Jack's room and, in a series of slapstick maneuvers—posing as a lamp and hiding

behind a mop, among others—Jack manages to evade her. Despite his efforts, Mrs. Snow

ultimately recognizes Jack's name from the mailbox. Rather than the expected shock and outrage

that Jack is living with her daughter and Janet, Mrs. Snow instead says it is “such a relief to

know that you have a man to protect you ... or in this case, someone like Jack.” Unbeknownst to

the roommates, Mr. Roper had already filled in Mrs. Snow on Jack's “secret,” in the harmless

and innuendo-laden tone emblematic of the series. Upon learning from Mrs. Snow that she is

sleeping in “Eleanor's room,” Mr. Roper smiles knowingly and says that the room is actually

Jack's, noting that sleeping there is “safe enough” for Mrs. Snow but that she “wouldn't catch

[Mr. Roper]” sleeping in there because he is “a decent, normal man.” Everyone laughs—some

knowingly, others obliviously—before happily going to bed; except for Jack, who is left to the

couch.

3. Season 1, Episode 4: No Children, No Dogs

5

Episode Four follows the same paradigm as Episode Two, but instead of hiding Jack from Mrs.

Snow, this time the roommates hide a new puppy from Mr. Roper. As the title suggests, Mr.

Roper enforces a strict ban on dogs and babies. The dog storyline dovetails with another sub-

plot: Chrissy's recent bout of sleepwalking.

The sleepwalking, Chrissy tells Janet, is induced by stress. As a child, this was brought on by

expectations associated with being a minister's daughter; but now it is the result of a “handsy”

boss. Chrissy's boss—whom the females at work call “Christopher Columbus” because of his

proclivity to “explore” female subordinates with his hands—has been making unwanted

advances. However, Chrissy has no recourse: she cannot complain to the boss because he is the

boss. As Chrissy and Janet ponder this quandary, Jack walks in with a new puppy. All three are

overcome by the puppy's cuteness; Chrissy and Janet's conversation falls by the wayside.

The puppy proves to be a source of comedy. Chrissy and Jack engage in innocent banter while

taking care of the puppy, which an eavesdropping Janet misinterprets as the two being engaged

in sexual relations:

JACK: Yeah, there's nothing a girl likes more than a little tickle on the tummy.

CHRISSY: Not like that! Like this.

JACK: Yeah, is that better?

CHRISSY: Ooooh, that is much better.

JACK: You are soooo beautiful. (Jack makes a kissing sound.)

(See also FAC ¶ 22.) And later in the episode, following a series of comical misunderstandings,

Mr. Roper inadvertently eats dog food—which draws even more laughs when he describes it as

delicious.

In an effort to find a new home for the puppy, Chrissy leaves him on the Ropers' doorstep and,

when spotted by Mrs. Roper, claims to have been sleepwalking. As in each previous episode,

everything ties together neatly and ends in laughter: Mrs. Roper keeps the puppy as a twentieth

anniversary gift from Mr. Roper, who had forgotten the anniversary and—as Mrs. Roper

knows—had no role in delivering the dog to their doorstep.

4. Season 2, Episode 3: Janet's Promotion

Janet's Promotion features more serious subject-matter than Mr. Roper consuming dog food. In

this episode, Janet is passed over for a promotion by her inexperienced, but very attractive, new

co-worker Chloe. It turns out that the manager, Mr. Compton, promoted Chloe because of her

striking figure, particularly, as the show emphasizes, her large bust. This causes Janet to question

how a woman can be taken seriously in the workplace, and even to consider, briefly, cosmetic

surgery to enhance her bust. At different points in the episode, both Janet and Chloe express

sincere plight:

6

CHLOE: Mr. Compton invited me over after work to go over some forms, and started with mine.

He didn't even ask. When you're built like me, men just take it for granted you'll say yes. I can't

remember the last time a man looked at my eyes.

JANET: When I started high school, I had absolutely no figure at all ... One day when teacher

asked the class to locate the Great American Flatlands, every single boy pointed at me.

Despite some serious moments, Three's Company ultimately uses this issue to generate

innuendo-fueled comedy. Jack tries to empathize with Janet but inserts his foot squarely in

mouth with an unfortunate pun, telling Janet “not to make mountains out of molehills.”

Similarly, Jack begins to tell Chloe that he noticed her beautiful eyes but accidentally substitutes

“eggs” for “eyes,” a Freudian slip due to Chloe's large bust. Per usual, the episode closes on a

playful note: Jack mockingly accusing Chrissy and Janet of “undressing him with their eyes,”

whereupon they tear at Jack's clothes and he fends them off by pantomiming karate.

5. Season 2, Episode 6: Alone Together

Alone Together picks up on a familiar series theme: sexual tension between Chrissy and Jack.

With Mr. Roper out of town on business, Janet agrees to stay the night with Mrs. Roper—leaving

Jack and Chrissy alone in the apartment. Janet is concerned that things between her roommates

might finally boil over and warns Chrissy not to give Jack “the wrong ideas ... or the right ideas

... or any ideas!” Chrissy reluctantly takes Janet's advice and purposefully dresses conservatively

(in a robe with curlers in her hair) for dinner with Jack. Despite her efforts, however, the pair's

eyes meet and the audience is led to believe that the two will sleep together.

Janet certainly shares that impression, bolstered by finding Chrissy depressed and Jack ebullient

upon her return from the Ropers'. However, when Janet finally extracts the story from Chrissy, it

turns out the opposite is true:

CHRISSY: It's too humiliating.

JANET: Men can be beasts sometimes.

CHRISSY: We talked, and [Jack] kissed me on the forehead.

JANET: Before [sex] or after?

CHRISSY: (In dismay) ... instead of.

The joke is in the irony that Chrissy is upset because Jack played against the common male

stereotype by not taking a pass at her. This conundrum is solved by Jack “apologizing” to

Chrissy, telling her that, if single, he “would've thrown [her] on the sofa, ripped off [her] clothes,

and attacked [her] like a mad dog!” Chrissy feels much better knowing she has maintained her

“sex appeal.” The show concludes with one final twist: with Mr. Roper's trip extended

unexpectedly, Janet agrees to stay with Mrs. Roper for two more nights, leaving a newly single

Jack and Chrissy alone. The audience delights in the possibilities.

6. Season 2, Episode 22: Days of Beer and Weeds

7

Season 2, Episode 22 again features mistaken identity. This time it is not Jack's sexuality; rather,

it is a mysterious plant Jack, Chrissy, and Janet find in the Ropers' “garden” after Mr. Roper

enlists the roommates to clean the yard because Mrs. Roper has an amateur flower-arranging

competition. Their humorous attempt to clear the garden (Jack: “There are pockets of Japanese in

[here] who don't know the war is over!”) features Jack sustaining all sorts of bug, hose, and hoe-

induced injuries. Despite these obstacles, the roommates ultimately find green wildflowers for

Mrs. Roper—but the real comedy comes later, when Larry informs Jack and Chrissy that the

green wildflowers are actually marijuana.

This revelation causes Chrissy and Jack to panic—should they burn the plants? Leave them on

the balcony for the neighbor's cat to eat? Unable to settle on a solution, the pair visits the police

station. After a humorous back-and-forth with a police officer about Chrissy and Jack's

hypothetical “friend” who may have committed an “offense,” Chrissy blurts out that Jack has

been drinking (a couple of Mr. Roper's homemade beers). Jack is ultimately brow-beaten into

taken a urine test and his bicycle is confiscated due to his “riding under the influence.” However,

this misadventure ends like most in Three's Company: with non-serious consequences and a

joke, as Jack is most concerned he will need to replace the tires and horn after the police ride his

bike all around Los Angeles.

There is also the small matter that Mrs. Roper has included some of the “wildflowers” in her

floral arrangement for the competition. Realizing this, Chrissy calls Mr. Roper. The audience

sees only his side of the telephone conversation: “Mrs. Roper has a can of what? A can of “bis”?

What's that? Oh, cannabis? So? What? WHAT? Mari ... shi ... I know it's illegal!” As the

instructor approaches to judge Mrs. Roper's arrangement, Mr. Roper destroys the arrangement to

obscure the “wildflower” which, no surprise, turns out not to be marijuana after all—crisis

averted.

7. Season 4, Episode 9: Chrissy's Hospitality

Chrissy's Hospitality opens with a scene hearkening back to No Children, No Dogs, as Mr.

Furley (Mr. Roper's replacement) overhears Chrissy and Jack putting up a shower curtain and

mistakenly thinks they are engaged in sexual relations:

JACK: Okay, Chrissy, I'll get in the tub with you, then we can get it on.

CHRISSY: Get next to me, I'll show you what to do.

JACK: This isn't exactly the first time I've ever done this.

CHRISSY: Maybe so, but girls are better at this than boys.

JACK: Come on, Chrissy. A little less talk and a little more action, okay?

(See also FAC ¶ 22.) This innuendo is a recurring sub-plot throughout the episode.

However, the episode revolves around Chrissy's trip to the hospital after an apparent head injury.

Jack and Janet are grief-stricken when told of the potential severity of Chrissy's injury and later

come to believe that Chrissy's death is imminent. Of course, things are not as they seem: the

8

doctor had tears in his eyes not because Chrissy was ill, but because her ditziness caused him to

laugh so hard he cried. Instead of spending the night concerned about her apparent head injury,

Chrissy tells the doctor she spent the evening marveling at God's practicality in making us: ears

for hearing, but also in the perfect place to hold up glasses; ten fingers is the perfect amount for

counting; arms on top of hands so (as she pantomimes a tyrannosaurus-rex) we can scratch our

backs. Chrissy's bubble-headedness stands in sharp relief to Jack and Janet's prayers for God to

help Chrissy. As usual, everyone goes home happy—and to a blaring laugh track.

B. 3C

3C is a play authored by American playwright David Adjmi. In summer 2012, it was produced

for a limited run at Rattlestick, Off Broadway. (FAC ¶ 60, Ex. C; Answer ¶ 61.) The parties

agree that 3C copies the plot premise, characters, sets, and certain scenes from Three's Company.

(FAC ¶ 35; Answer ¶ 35.) More specifically, as in Three's Company, 3C' s lead male character is

an aspiring chef; the blonde female lead is the daughter of a minister; and the brunette female

lead is a florist. (Id.) However, the parties agree on little else regarding the extent to which 3C

copies Three's Company and in characterizing the comparison between the two. As in its review

of Three's Company episodes, the Court focuses on 3C' s screenplay, incorporated by reference

in the pleadings.

3C begins with two excerpts, the former from William Shakespeare's Romeo and Juliet and the

latter from Genesis 3:17:

These violent delights have violent ends, And in their triumph die, like fire and powder, Which

as they kiss consume.

Cursed is the ground for your sake; In toil you shall eat of it All the days of your life.

(4.)10 This is an apposite preamble for the play.

3C assumes a heavy tone from the outset. The first scene finds Linda and Connie hung over from

the previous night's going-away party for their departed roommate, Beverly. Following a quick

exchange, the dialogue opens with Connie reading from “Cosmo” magazine:

CONNIE: This lady was disfigured cause she burnt her bra. The whole house burned down, now

the insurance people are after her ... People lead such interesting lives.

(5.) After Linda dismisses the story (“It's called saving money”), Connie mentions that her father

is a minister, musing “We're all fallen//.”11 (Id.) After Connie's sobering observation, the

roommates touch on a variety of topics in short order: money problems (“LINDA: We can't

afford a vacation; we can barely make rent.”); self-consciousness bordering on self-loathing

(“LINDA: I need to lose weight first ... I can't date anyone looking like this.”); references to

sexual assault (“LINDA: (reacts ) Don't you think it's dangerous to date strange men? CONNIE:

(matter-of-factly ) If you flirt you flirt with danger, I learned that the hard way.... LINDA:

Connie, you don't even have a job. CONNIE: (hurt ) I had to quit, my boss was hitting on me!”);

and Connie's promiscuity (“CONNIE: Because he was having sex with me but she walked in.”)

(6–8.) 3C is not light fare.

9

Connie and Linda's conversation continues, touching on the topics listed above, and others. The

following is representative of their dialogue:

LINDA: And I'm not going out with anyone until I lose twenty pounds!! LEAVE ME ALONE.

(11.)

__

CONNIE (on her grandmother): I gave her shots and things, she had diabetes. But then my

mother refused to take care of her and we put her in a home. She died a few months later. I never

forgave my mother. (pause ) Well I forgave her but only years later, we never spoke again. (12.)

__

LINDA: I'm ugly and I look like a dyke!

CONNIE: You are not a dyke.

[PAUSE]

LINDA: I know what people say about me //

CONNIE: What? People // don't—

LINDA: (hurt) I know what people say.

(13.) Suffice to say, the tone is not uplifting. And the roommates' mood is further dampened by

their landlord, Mr. Wicker, demanding rent they are unable to pay. (15.)

Connie and Linda are eventually interrupted by Brad, who enters the room wearing nothing but a

sock on his left foot. (16.) After the initial shock, the roommates realize that Brad attended their

party, drank too much, and mistakenly passed out naked in the kitchen. (17–18.) The ensuing

dialogue toggles between excitement and disarming seriousness; for example:

BRAD: You two have a lot of energy.

LINDA: WE get excited having company over.

CONNIE: Unless they're rapists.

The conversation then morphs into Brad, Connie, and Linda's dancing, which “escalates until it

is almost a competition, a bacchanal” and is “both enjoyable and a little insane.” (22.)

This sort of dialogue, sometimes disjointed and rapidly shifting in tone and topic, is a hallmark

of 3C. For example, almost as soon as the dancing concludes, Connie accuses Brad of looking at

her breasts and asks “Am I just breasts to you?” (23.) Just as quickly, however, the

conversation—and Connie—changes completely:

BRAD: I'm from Kansas. I got out of Vietnam about a year ago.

LINDA: (delicately ) Oh ...

10

BRAD: I've been floating around a little bit.

CONNIE: (cheerful ) I've never been to Vietnam, was it nice?

(Id. at 23.) And so it continues, touching on Brad's aspirations to be a chef, followed shortly

thereafter by more self-loathing weight-related comments from Linda.

Eventually, the trio broaches the topic of Brad replacing Beverly as Linda and Connie's third

roommate. Although the women consent to the arrangement relatively quickly, the discussion

evokes a concerned threat from Connie (“CONNIE: (worried ) You're not gonna try to get it on

with me are you? because I was almost raped in Venice Beach once // ... (to Brad, a threat ) I

took classes in La Jolla, I could knife you.”) and not much in the way of hospitality:

BRAD: So ... we're roommates?

LINDA: That's your room There's a bed and a dresser //

CONNIE: We're not giving you a blanket or sheets You need your own.

BRAD: How much is rent? //

CONNIE: Eighty one dollars and you owe from last month too so can you pay that?

(25–26.) The discussion halts when the roommates realize Mrs. Wicker, the landlord, is

knocking at the door—which leads Brad to hide in the bedroom, where Connie joins him only

after grabbing a knife for protection. (27.)

Linda and Mrs. Wicker's dialogue is similar to the earlier conversation between Connie and

Linda: moments of compassion interrupted by often manic outbursts, along with philosophical

musings sprinkled throughout. Here, this rhythm plays out during a discussion about shower

Mrs. Wicker is charged with throwing for her niece.

MRS. WICKER: (casual at first, t hen increasingly terrified and real ): It's just I'm anxious all the

time and not just about my niece's party although I'm scared to call the person to do the

calligraphy for the invitations?

...

LINDA: Why are you // so anxious?

MRS. WICKER: OW I burnt my tongue! Ha ha ha (austere) but no I'm just anxious all the time

(jovial ) hey did you guys paint in here?

...

MRS WICKER: Some people think there are four dimensions or five or an infinite amount of

dimensions And some people think we live inside a hologram That makes me anxious!

LINDA: Have you ever considered medication? //

...

11

MRS. WICKER [simmering ] No-I-said-I-never-considered-it-which-is-true-because-it-was-

prescribed-for-me-and-I-don't-TAKE-IT!

[STOP]

(30–31.) This segment discussing Mrs. Wicker's anxiety continues until Linda and Mrs. Wicker

overhear what sounds like, without additional context, Brad and Connie engaging in sexual

relations. (33–34.) Despite Linda's efforts, Mrs. Wicker ultimately discovers Brad, dressed in a

ladies' nightgown, whereupon Linda tells Mrs. Wicker that Brad is a transvestite. (Id. at 35.)

After some deep thoughts about transvestites and make-believe, Mrs. Wicker finally relents to

Brad's becoming the third roommate because, as Connie says, “He's gay. That's practically a

woman!” (36.) Despite consistently referring to Brad, and homosexuals in general, as “faggots,”

Mrs. Wicker consents to the new living arrangement and appears to be too caught up in her own

anxiety to care: “MRS WICKER: (weirdly flirtatious ) Don't tease! and anyways, I plan on

committing suicide in a few days, so I'll be dead first. Ha ha ha. LADIES FIRST. No seriously, I

want to die. NO I'M KIDDING. (her smile disintegrating here ) ....” (39.) Mr. Wicker's attitude

toward homosexuals is much more direct. He derides Jack (“If you could only get pregnant I'd

have you in my kitchen in no time.”) and tells a variety of unsavory jokes throughout 3C (e.g.,

“WICKER: Hey, how do you fit four fags on a barstool? ... Flip it over! Ha ha ha ha.”). (40–41.)

In addition to his prejudicial views and overall repulsive character, Mr. Wicker also appears to

have had an illicit—and not necessarily consensual—relationship with Linda. At one point, he

sexually assaults her, sticking his hand down her pants despite her protestations. (41.)

Mr. Wicker is not the only character who uses derogatory language for homosexuals and has an

aggressive, abusive attitude toward women. Brad's friend, Terry, engages in similar behavior.

After learning that the Wickers are under the impression that Brad is homosexual, which Terry

believes to be false, he attempts to joke with Brad: “Don't tell me you're getting all sensitive on

me”, witcha new “lifestyle:? Huh faggot? HA HA HA .... Brad smacks Terry on the ass ... (mock

eroticism ) Yeah you like that you little faggot huh? You like it when I slap your ass? HEH HEH

HEH.” (46.) This dialogue breaks up Terry's continuous boasting about his conquests (“TERRY:

I stuffed a sock in her mouth to shut her up but then she got it all foamy and had some kinda

seizure”). Brad repeatedly declines to join in, which the audience learns is because he is actually

homosexual and harbors romantic feelings for Terry.

The play continues, building on established themes: Linda's negative self-image (“She opens her

eyes, sees her reflection in the mirror. Oops, she's ‘fat and ugly’—remember, Linda? Her smile

crumples” ) (52); Brad's closeted attraction to Terry, and Terry's exacerbating that with his

abrasive obliviousness (to Brad: “TERRY: You're such a little faggot [slaps his knee, as if

speaking to a dog ] ‘Cmere faggot’ ”) (49); and Connie's obviously complicated religious and

familial history (“I'm very religious. Where's my rosary? Oh it doesn't matter, I think the beads

all fell off. I don't think I really believe in anything anymore frankly.”) (54); and Connie's

promiscuity, after she agrees to go to a Peter Frampton concern with a man she just met. (55.)

Even 3C' s relatively happier moments are accompanied by complicated, dark undertones. As

Linda and Brad engage in a game called “faces,” whereby one player tells the other a “face”—

12

happy, sad, excited, and so on—to make, the game increases in intensity and has an undercurrent

approaching mania. (59–63.) The game ends after Connie tells Linda to do “anguish with an

undercurrent of sexiness” which is described as follows: “It's real anguish. She brings in the

erotic longing. It's very painful ... it's uncomfortable for everyone ... She immediately bursts into

tears.” (63.) The game ends with Linda wrapped in Connie's arms.

After Linda exits, Terry returns. This time, however, he is more interested in Connie than Brad.

After a lewd sexual joke and gesture at Connie's expense (“CONNIE: I feel like having pancakes

I wonder if there's any batter left? // TERRY: You want batter? I got batter for you right here,

baby // Terry gets behind her, pulls her to him. She pushes him away.” ), Connie orders Terry to

go but changes her mind when Terry tells her he has acquired drugs. (65.) The two go into

Connie's bedroom. Upon Linda's return, she hears them speaking and initially believes Connie

and Terry are sexually engaged—as it turns out, he was forcing her to snort cocaine. (67.) Terry

subsequently disappears; Connie is manic and unreceptive to Linda's soothing.

Linda is herself understandably shaken and, impulsively accosts Brad—“LINDA: (in tears, blurts

) You can't just shove your thing into any hole you want ! Some holes aren't meant for that and I

think it's—disgusting.” (68.) Brad is taken aback, and even more so once Linda accuses him of

hiding something. Although Linda is referring to Brad's hiding relationships with women, the

audience comes to realize that Brad's secret is the opposite: that he is homosexual. (“BRAD:

(deeply pained ) I tried to fix myself but I can't. (a quiet admission: ) Sometimes I don't even

want to live anymore.)” (70.) The two continue talking past one another, as Brad attempts to

come out but Linda unknowingly rejects him. A “coked up” Connie then has a similar

conversation with Brad, asking “(gingerly) Brad? Why do you always keep falling? Is there

some insupportable weight you're carrying? I mean ... inside?” also without realizing that Brad's

weight is his closeted homosexuality. (72.) It is a confusing state of affairs: Connie, Linda, and

Terry believe Brad is a heterosexual pretending to be homosexual to appease the Ropers, who

think he is homosexual.

After another bout of anxiety from Mrs. Roper, Jack's sexuality comes into sharp focus. Mr.

Wicker makes a number of comments about Brad's homosexuality; those below are

representative:

MR WICKER: Hey did you hear what the faggot said to the other faggot in the bar as he passed

by? ... “Can I push your stool in for you?”

MR WICKER: [smiles ] you don't mind me takin the piss out of you Brad.... Cause if you do I'll

beat ya fuckin head in ya faggot!! [beat] HA HA HA ....

*526 (85.) Indeed, Mr. Wicker only relents after Brad begins telling jokes deriding homosexuals

himself.

After the Wickers depart, Brad, Connie, and Linda return to their common refrains: negative

self-conception, inability to pay rent, and promiscuity, among others. However, despite their

many issues—internal and external—Brad, Connie, and Linda agree to “really be a family” and

begin to play faces. (90.) From there, the dialogue jumps from topic-to-topic so suddenly and

13

inconsistently that Brad, Connie, and Linda are no longer holding a conversation; rather, the play

transitions into a series of disjointed non-sequiters elaborating on themes described above.

In the final scene, Brad finally attempts to “come out” to Terry. Terry is again deriding Brad for

what Terry incorrectly believes is Brad's false homosexuality when Brad finally snaps:

TERRY: “C'mon faggot!”

BRAD: (plainly ) I am a faggot.

Terry's expression slowly changes.

TERRY: What?

Brad looks at him. He looks like he could cry. He's shuddering. He can barely breathe.

TERRY: Dude, what the fuck's your problem?

BRAD: (hoarsely ) I ... I ... love you.

[PAUSE]

TERRY: (confused ) You—?

Brad bursts into anguished, racking sobs. He sobs and sobs and they just stare at him, blankly.

His sobs transmogrify into laughter. The laughter builds, becomes hysterical. It's a little too

hysterical. Connie starts to laugh with him.

CONNIE: (trying to be funny ) I'm a faggot too!

(96–97.) Connie's joke sets off a chorus, as Linda and Terry happily declare they are also

“faggots,” and Connie, to great laughter, claims that BOB HOPE is also. But:

Eventually, Brad stops laughing. He pulls himself off the floor. The rest of them are still going.

Brad, unsmiling, wipes the tears from his eyes. He sits on a chair. Removed, but not too

deliberately. The laughter dies down.

As they recover a disquieting, awful dread creeps into the room.

Silence.

Black. (98.)

III. DISCUSSION

A. A Declaratory Judgment on the Pleadings is Appropriate

To prevail on a Fed.R.Civ.P. (“Rule”) 12(c) motion a plaintiff must plead sufficient facts to state

a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 677–78, 129 S.Ct.

1937, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955,

167 L.Ed.2d 929 (2007). In deciding such a motion, a court must accept as true the facts alleged

in the complaint, drawing all reasonable inferences in the plaintiff's favor, and may consider

14

documents attached to the complaint, incorporated by reference into the complaint, or known to

and relied on by the plaintiff in bringing the suit. Effie Film, LLC v. Gregory Murphy, 932

F.Supp.2d 538, 552–53 (S.D.N.Y.2013), aff'd, 564 Fed.Appx. 631 (2d Cir.2014) (internal

citations omitted) (citing ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87 (2d Cir.2007)).

However, this case features a twist on a standard Rule 12(c) motion. “Because this is an action

for a declaratory judgment of non-infringement, plaintiff's burden on this motion is turned on its

head.” Effie Film, 932 F.Supp.2d at 552–53. Adjmi may prevail on his Rule 12(c) motion only if

the pleadings establish that there can be no set of facts to support an action for copyright *527

infringement by DLT against Adjmi as a would-be defendant—or, put differently, that a

hypothetical inverse Rule 12(c) motion by DLT and the JV against Adjmi and the Production

Companies would fail. In deciding this motion, the pleadings—Adjmi's Complaint and First

Amended Complaint, DLT's Answer and Counterclaim, and Adjmi's Answer to the

Counterclaim—are all taken to be true. While any inconsistencies between the allegations in the

pleadings must be resolved in the non-moving party's, here DLT's, favor, see, e.g., id. at 553, the

Court need not accept legal conclusions or characterizations contained in DLT's pleadings. State

of N.Y. v. Oneida Indian Nation of N.Y., No. 95–CV–0554 (LEK/RFT), 2007 WL 2287878, at

*3 (N.D.N.Y. Aug. 7, 2007).

12 In evaluating a motion on the pleadings according to this standard, a court may rely on the

pleadings and all exhibits attached to them. See L–7 Designs Inc. v. Old Navy LLC, 647 F.3d

419, 421–22 (2d Cir.2011). More specifically, the court's scope of review includes “the

complaint, the answer, any written documents attached to them, and any matter of which the

court can take judicial notice for the factual background of the case.” Roberts v. Babkiewicz, 582

F.3d 418, 419 (2d Cir.2009). And in that context, “[the] complaint ... is deemed to include any

written instrument attached to it as an exhibit, materials incorporated in it by reference, and

documents that, although not incorporated by reference, are ‘integral’ to the complaint.” Sira v.

Morton, 380 F.3d 57, 67 (2d Cir.2004) (citations omitted) (quoting Chambers v. Time Warner,

Inc., 282 F.3d 147, 153 (2d Cir.2002)). Here, although the Court is entitled to rely on the broad

definition of “complaint” above—and even certain materials beyond that—this Memorandum

and Order is almost exclusively based on the DVDs of Three's Company and the 3C screenplay,

each expressly incorporated by reference in the pleadings.12 Put differently: the Court's decision

is predicated on its review of the raw materials, not the parties' proverbial labels.

Courts in this Circuit have resolved motions to dismiss on fair use grounds in this way:

comparing the original work to an alleged parody, in light of applicable law. See, e.g., Blanch v.

Koons, 467 F.3d 244, 249–50 (2d Cir.2006) (affirming the district court's grant of summary

judgment on fair use grounds where district court reached that conclusion by comparing the

original and potentially infringing paintings); Leibovitz v. Paramount Pictures Corp., 137 F.3d

109 (2d Cir.1998) (affirming district court's grant of summary judgment on fair use grounds

where district court reached that conclusion by comparing original photograph to potentially

infringing advertisement); Arrow Prods., Ltd. v. The Weinstein Co., 44 F.Supp.3d 359, 366–73

(S.D.N.Y.2014) (finding fair use based on a review of, and subsequent comparison between, two

15

films); Effie Film, 932 F.Supp.2d at 545–553 (granting motion on the pleadings based upon a

detailed review of two screenplays depicting the same historical events).

3 The present case can be resolved using similar methodology. Here, the original work is nine

seasons of Three's Company, and the infringing work/alleged parody is the screenplay of 3C; and

the latter provides a more than adequate basis *528 for comparison to the former. As recounted

in the Court's summary of 3C above, and explained within the framework of the fair use analysis

below, a recording of the play is not necessary to evaluate 3C' s setting, style, pace, and tone.

The screenplay itself, along with certain contemporary reviews as context, provide more than

enough information to resolve Adjmi's motion on the pleadings under applicable copyright law.

Accordingly, this motion need not be converted to a motion for summary judgment, and further

discovery is unnecessary. Based upon the Court's review of the pleadings—specifically its

detailed summaries of Three's Comp any and 3C—there can be no set of facts to support an

action for copyright infringement by DLT against Adjmi. Id. at 552–53.

B. 3C is a Parody and a Fair Use of Three's Company

4 A plaintiff must prove two elements to establish copyright infringement: ownership of a valid

copyright and copying of original elements in the copyrighted work. See Feist Publ'ns, Inc. v.

Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). There is

no question that DLT holds the copyright to Three's Company or that 3C copied original

elements of the former. Accordingly, this inquiry focuses—as the parties recognize it should—on

whether Adjmi's 3C is nonetheless a noninfringing “fair use” of Three's Company.

The animating principle of copyright law is the United States Constitution's directive “[t]o

promote the Progress of Sciences and useful Arts ....” U.S. Const., Art. I, § 8, cl. 8. In practice,

achieving that goal is an exercise in balancing the grant of property rights that incentivizes

creative work, and the corresponding limits on the ability of the community to draw upon those

ideas. This Court, and the Court of Appeals in which it sits, has frequently been an arena for that

underlying tug-of-war. See, e.g., Cariou v. Prince, 714 F.3d 694, 705 (2d Cir.2013); Blanch v.

Koons, 467 F.3d at 250–51.

It is no coincidence, then, that the most widely cited statement summarizing this tension was

authored by Judge Pierre N. Leval, currently sitting on the Court of Appeals, when he was a

district judge on this Court. See Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev.

1105 (1990) ( “Leval ”). “The copyright law embodies a recognition that creative intellectual

activity is vital to the well-being of society. It is a pragmatic measure by which society confers a

monopoly ... in order to obtain itself the intellectual and practical enrichment that results from

creative endeavors.” Id. at 1109. Even so, copyright law “depends equally on the recognition that

the monopoly must have limits.” Id. at 1136. Courts have developed a number of doctrines in an

attempt to delineate where monopoly ends and new creations begin.

Perhaps the most well-known of these is the fair use doctrine, “which protects secondary

creativity as a legitimate concern of the copyright.” Id. at 1110. This general guideline was

codified by Section 107 Copyright Act of 1976, which lists four non-exclusive factors that courts

16

must consider in determining fair use. 17 U.S.C. § 107 (WL 2015) (“Section 107”). Under the

statute:

[T]he fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting,

teaching (to include multiple copies for classroom use), scholarship, or research, is not an

infringement of copyright. In determining whether the use made of a work in any particular case

is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a *529 commercial

nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a

whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. § 107. As indicated by the framework and substance of the statute, the fair use

determination was conceived—like copyright itself—as part art, part science.

56 The Supreme Court's definitive statement on the fair use doctrine, Campbell v. Acuff–Rose

Music, Inc., 510 U.S. 569, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994), emphasizes the ad hoc

nature of the inquiry. Determining whether the fair use defense applies “is not to be simplified

with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-by-case

analysis.” Campbell, 510 U.S. at 577, 114 S.Ct. 1164 (citing Harper & Row, Publishers, Inc. v.

Nation Enter., 471 U.S. 539, 560, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985)). Each of the four

factors is “to be explored, and the results weighed together in light of the purposes of copyright.”

Id. at 577–78, 105 S.Ct. 2218. Section 107 is therefore not so much an independent framework

for evaluation as a reflection of time-worn copyright principles. See, e.g., Folsom v. Marsh, 9

F.Cas. 342 (CCD Mass.1841) (Story, J.) (In evaluating copyright infringement, courts should

“look to the nature and objects of the selections made, the quantity and value of the materials

used, and the degree in which the use may prejudice the sale, or diminish the profits, or

supersede the objects, of the original work.”). Put differently: fair use may be governed by

statute, but it is still very much judge-made common law. Fortunately, from Justice Story, see

Folsom, 9 F.Cas. 342 (1841), to Judge Leval, see, Leval, to the present, judges have given

content to the fair use standard by applying Section 107 in light of the underlying purposes of

copyright. With this brief summary of the basic goals of copyright in tow, and the descriptions of

Three's Company and 3C above, the Court now analyzes Three's Company and 3C under Section

107's rubric.

1. The Purpose and Character of the Use

7 The first fair use factor examines the purpose and character of the allegedly infringing work.

Beginning with the most basic part of the inquiry, 3C is undoubtedly a commercial product.

Even assuming arguendo that 3C' s primary aim is art and not profit, the work qualifies as

commercial under the law because “[t]he crux of the profit/nonprofit distinction is not whether

17

the sole motive of the use is monetary gain but whether the user stands to profit from

exploitation of the copyrighted material without paying the customary price.” Harper & Row,

471 U.S. at 562, 105 S.Ct. 2218. Adjmi seeks declaratory judgment specifically so that 3C can be

published and licensed for possible future production. 3C' s commercial nature therefore weighs

against a finding of fair use.

89 However, the remainder of the “purposes and character” analysis points in the opposite

direction. “[T]he central purpose of this investigation is to see ... whether the new work merely

‘supersede[s] the objects' of the original ... or instead adds something new, with a further purpose

or different character, altering the first with new expression, meaning or message ....” Campbell,

510 U.S. at 579, 114 S.Ct. 1164; see also Castle Rock Entm't, Inc. v. Carol Publ'g Grp., Inc., 150

F.3d 132, 141 (2d Cir.1998). Courts refer *530 to this property by the shorthand

“transformative.” See, e.g., Campbell, 510 U.S. at 579, 114 S.Ct. 1164 (citing Leval, at 1111).

Transformative use is neither a sufficient nor exclusive means to establish fair use, but “[s]uch

works ... lie at the heart of the fair use doctrine's guarantee of breathing space within the confines

of copyright ... and the more transformative the new work,” the greater the likelihood of a

finding of fair use. Id. This is in keeping with the general calculus of copyright law: promoting

the arts and sciences by rewarding ingenuity, without stifling creativity.

10 One type of protected creativity is parody, a recognized category of criticism or comment

authorized by Section 107. Campbell, 510 U.S. at 579, 114 S.Ct. 1164. Drawing from case law,

historical and dictionary meaning, as well as Congressional intent, the Supreme Court found that

“the heart of any parodist's claim ... is the use of some elements of a prior author's composition to

create a new one that, at least in part, comments on that author's works.” Id. at 580, 114 S.Ct.

1164. As demonstrated by Campbell's predecessors and its progeny, the law is agnostic regarding

preference between original work and adaptation. “Accordingly, parody, like any other use, has

to work its way through the relevant factors, and be judged case by case, in light of the ends of

copyright law.” Id.

3C uses the raw material of Three's Company “in the creation of new information, new

aesthetics, new insights and understandings” and is “the very type of activity that the fair use

doctrine intends to protect for the enrichment of society.” Castle Rock, 150 F.3d at 142 (quoting

Leval, at 1111). There is no question that 3C copies the plot premise, characters, sets, and certain

scenes from Three's Company. (FAC ¶ 35; Answer ¶ 35.) But it is well recognized that “[p]arody

needs to mimic an original to make its point, and so has some claim to use the creation of its

victim's ... imagination.” Campbell, 510 U.S. at 581, 114 S.Ct. 1164. The “purpose and

character” analysis assumes that the alleged parody will take from the original; the pertinent

inquiry is how the alleged parody uses that original material.

Despite the many similarities between the two, 3C is clearly a transformative use of Three's

Company. 3C conjures up Three's Company by way of familiar character elements, settings, and

plot themes, and uses them to turn Three's Company' s sunny 1970s Santa Monica into an

upside-down, dark version of itself. DLT may not like that transformation, but it is a

transformation nonetheless.

18

DLT argues that 3C represents only “minor extensions ... of preexisting themes in Three's

Company ....” (Defs.' Memo at 22–23.) In support of this proposition, DLT points to language in

Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1279 (11th Cir.2001). In that case, the

Court of Appeals for the Eleventh Circuit found a parody of Gone With The Wind to be a fair

use, but warned that a hypothetical work which “do[es] no more than put a new gloss on the

familiar tale without criticizing or commenting on its fundamental theme and spirit” would have

made a finding of fair use more “much tougher.” Id. DLT also points to a case in this Circuit,

Salinger v. Colting, for the same “gloss” idea (see Defs.' Memo at 22–23), and as support for the

general argument that “[i]t is hardly parodic to repeat [the] same exercise in contrast, just

because society and the characters have aged.” Salinger v. Colting, 641 F.Supp.2d 250

(S.D.N.Y.2009), vacated on other grounds, 607 F.3d 68 (2d Cir.2010). DLT assumes that line of

argument, asserting that “all of the allegedly critical elements in 3C were in Three's Company,”

including “sexual aggression, drug use, homophobia, *531 self-consciousness and self-esteem

issues.” (Defs.' Memo at 18.)

However, 3C is hardly a “repeat” of Three's Company; it is a deconstruction of it. The former

has turned the latter into a nightmarish version of itself, using the familiar Three's Company

construct as a vehicle to criticize and comment on the original's light-hearted, sometimes

superficial, treatment of certain topics and phenomena. Take first the cornerstone of Three's

Company, Jack's false homosexuality: there is the obvious difference that 3C's analogue, Brad, is

actually homosexual. That change in itself might not be transformative. However, Brad is a far

cry from Jack-the former is almost a reimagining of what Jack would have actually experienced

if he were homosexual: the abusive, demeaning treatment from Mr. Wicker; constant

homosexual slurs from Larry; and even rejection from his own family. This is a major departure

from Mr. Roper's innuendo-laden jokes. Putting aside how the other characters view Brad, and

how that differs markedly from Jack's treatment in Three's Company, there is also the stark

contrast between Brad and Jack themselves. The two are tall, handsome men prone to occasional

physical clumsiness, and both find themselves in similar living situations. But that is where the

similarities end. Jack spends most episodes bantering with Chrissy, tripping on garden hoses, and

serving as a general source of comedy; Brad, on the other hand, spends almost the entirety of 3C

grappling with his secret—different from Jack's “secret”—and unsuccessfully attempting to

make it known to Connie, Linda, and Larry. Three's Company may have been ground-breaking

and heralded in retrospect for raising homosexuality as a theme, but 3C criticizes the happy-go-

lucky treatment of that issue.

The same is true for other topics DLT claims were already present in Three's Company and

merely glossed over: Chrissy, Jack, and Janet's unwittingly finding a plant they erroneously

believe to be marijuana versus Larry's forcing Connie to snort cocaine; Mrs. Roper's sarcastic

sexual frustration versus Mrs. Wicker's near-psychotic break over planning a shower for her

niece; the laugh-track blaring because Janet's classmates made fun of her flat-chestedness versus

Linda's constant self-loathing; Chloe and Janet's commentary about a handsy male boss versus

Chrissy's constant allusions to having been raped; and so forth. To the extent that homophobia,

sexual aggression, drug use, self-consciousness, and self-esteem issues were present in Three's

Company—which the Court does not necessarily accept as fact—those themes were largely

19

made light of and ultimately played for laughs. Moreover, many of those constructs, such as

actual homosexuality and illicit drug use, were not actually present in Three's Company. 3C

treats them as real and, in the Court's view, criticizes and comments upon Three's Company by

reimagining a familiar setting in a darker, exceedingly vulgar manner.

11 Further discovery is likewise unnecessary to evaluate stylistic factors like setting, costume,

style, pace, and tone. Given the overwhelmingly transformative nature of the substance, the first

factor would likely weigh in favor of a finding of fair use even if certain elements, like setting,

costume, style, and pace, were exactly the same as in Three's Company. But that is not the case,

particularly as it relates to the one DLT argues is most important: tone. (See Defs.' Memo at 28.)

There is ample evidence to discern the tone of Three's Company. It can be described as a happy,

light-hearted, run-of-the-mill, sometimes almost slapstick situation comedy. Each episode has a

central “problem” which is solved by the end. *532 And the characters communicate regularly;

supplemented, of course, by a laugh track. (See, e.g., II.A.) 3C' s markedly different tone is

evident from even a cursory reading of the screenplay. Rather than a happy montage featuring

bike-riding, watering flowers, and sunbathing, 3C opens with two morbid quotations. As

demonstrated by select quotations in II.B, 3C proceeds in a frenetic, disjointed, and sometimes

philosophical tone. It is often difficult to follow and unrelentingly vulgar. The same could not be

said of any episode of Three's Company. Accordingly, the Court does not take a position on the

relevancy of further discovery; it simply finds such testimony is not necessary to determine that

3C is a highly transformative parody of Three's Company.13 This determination weighs heavily

in favor of a finding of fair use.

2. The Mature of the Copyrighted Work

1213 The second statutory factor, “the nature of the copyrighted work,” Section 107(b), focuses

on the “value of the materials used.” Campbell, 510 U.S. at 586, 114 S.Ct. 1164 (quoting

Folsom, 9 F.Cas. at 348). “[This prong] represents an acknowledgment that certain works are

closer to the heart of copyright than others; fair use is therefore more difficult to establish when a

core work is copied than when an infringer takes material that falls only marginally within

copyright protection.” Leibovitz v. Paramount Pictures Corp., 948 F.Supp. 1214, 1217

(S.D.N.Y.1996), aff'd, 137 F.3d 109 (2d Cir.1998). See, e.g., Stewart v. Abend, 495 U.S. 207,

237–38, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990) (contrasting a fictional short story with factual

works); Harper & Row, 471 U.S. at 563–64, 105 S.Ct. 2218 (contrasting forthcoming memoir

with published speech); Feist, 499 U.S. at 348–51, 111 S.Ct. 1282 (contrasting creative works

with bare factual compilations).

14 Three's Company is certainly a creative, even groundbreaking, work. But that originality is

less in the creation of new elements than in mixing familiar tropes together in novel ways. A

ditzy blonde (Chrissy), down-to-earth brunette (Janet), clumsy charmer (Jack), and old-

generation landlords, among others, are stock characters to some extent. Of course, it is unlikely

Three's Company would have enjoyed such sustained success if the show were an unimaginative

retread. Even granting that this factor weighs somewhat against a finding of fair use, it

nevertheless does little to sway the overall determination. See Bill Graham Archives, LLC v.

Dorling Kindersley Ltd., 386 F.Supp.2d 324, 330 (S.D.N.Y.2005) (quoting Castle Rock, 150

20

F.3d at 144). To quote the Supreme Court, the second factor is not “ever likely to help much in

separating the fair use sheep from the infringing goats in a parody case, since parodies almost

invariably copy publicly known, expressive works.” Campbell, 510 U.S. at 586, 114 S.Ct. 1164.

Accordingly, this factor weighs in favor of DLT but assumes less importance in the overall fair

use analysis relative to the other three factors.

3. The Amount and Substantiality of the Portion Used in Relation to the Copyrighted Work as a

Whole

The third fair use factor asks whether “the amount and substantiality of the portion used in

relation to the copyrighted *533 work as a whole,” Section 107(3), are reasonable in relation to

the purpose of the copying. Campbell, 510 U.S. at 586, 114 S.Ct. 1164. Much like the Section

107 analysis writ large, the third factor is something of a sliding scale: the larger volume (or the

greater importance) of the original taken, the less likely the taking will qualify as a fair use.

Leval, at 1122. This inquiry therefore takes into account the first and fourth factors as well. The

appropriate level of taking, considered both quantitatively and qualitatively, see Bill Graham

Archives, 386 F.Supp.2d at 330, necessarily depends on the purpose and character of the

derivative use; and the facts relevant to the third factor can also assist in the assessment of the

parody's effect on the market for the original. See Campbell, 510 U.S. at 586–87, 114 S.Ct. 1164;

Leval, at 1122. Taking all this into consideration, the Supreme Court provided a guidepost for

the third factor analysis: “[A] work composed primarily of an original, particularly its heart, with

little added or changed, is more likely to be a merely superseding use, fulfilling demand for the

original.” Campbell, 510 U.S. at 587–88, 114 S.Ct. 1164.

Applying this standard to parody is particularly difficult because of a simple reality: a parody's

humor is entirely contingent on recognizable allusion to the original work. Id. at 588, 114 S.Ct.

1164 (“[Parody's] art lies in the tension between a known original and its parodic twin.”). So the

inquiry seeks to draw a line between taking enough to evoke the original and excessive

appropriation. The answer, of course, is that it depends on the particular facts. While the

Supreme Court has recognized that “using some characteristic features cannot be avoided ... this

is not ... to say that anyone who calls himself a parodist can skim the cream and get away scot

free.” Id. at 588–89, 114 S.Ct. 1164. Even so, the Court of Appeals has consistently held that a

parody under the fair use doctrine is entitled to more extensive use of the original work than is

ordinarily allowed under the substantial similarity test. Rogers v. Koons, 960 F.2d 301, 310 (2d

Cir.1992); see also Elsmere Music, Inc. v. Nat'l Broad. Co., 623 F.2d 252, 253 (2d Cir.1980) (per

curiam).

3C copies extensively from Three's Company. (See generally, Sander Decl.) The parody takes

the original's basic plotline, characters, and setting, and, to a lesser extent, its jokes and themes.

See II.A; II.B. Adjmi argues that amount of taking is consistent with other parodies that have

qualified as a fair use (see Pl.'s Memo, at 19); DLT, on the other hand, alleges that 3C “pilfered”

virtually every important element of 3C (see Defs.' Memo, at 26). As for 3C' s copying of the

central constructs of Three's Company, according to the Supreme Court “[c]opying does not

become excessive in relation to parodic purpose merely because the portion taken was the

original's heart.” Campbell, 510 U.S. at 588, 114 S.Ct. 1164. Accordingly, 3C' s taking of what

21

could be considered the “heart” of Three's Company—the roommates' living arrangement, basic

personalities, location, and the like—is not dispositive in analyzing the third factor.

DLT's more convincing argument is that 3C copied many minor elements of Three's Company,

which had neither a parodic purpose nor were necessary to evoke Three's Company. (See Defs.'

Memo at 26.) Those elements include, among others: Chrissy/Connie being a minister's

daughter; Jack/Brad is a chef-in-training; Linda/Janet working in a flower shop, and so on. 3C

even takes sequences from particular episodes of Three's Company: the female roommates'

mixing together unfinished wine bottles the morning after their original roommate's going-away

party; Janet/Linda suggesting that Jack/Brad go see an “art-house movie”; and various innuendo-

laden *534 dialogue between Jack/Brad and Chrissy/Connie which lead other characters to

believe the two are sexually involved. 3C' s copying of not only Three's Company' s heart, but

also its metaphorical appendages, considered on its own, weighs against a finding of fair use.

15 But, as noted above, the third factor is not analyzed in a vacuum. In articulating a standard for

determining the amount a parody may copy from the original, the Supreme Court set a floor, not

a ceiling: “When a parody takes aim at a particular original work, the parody must be able to

‘conjure up’ at least enough of the original to make the object of its critical wit recognizable.”

Campbell, 510 U.S. at 588, 114 S.Ct. 1164. And that floor is considered in light of the first and

fourth factors. This Court has already established, under the first fair use factor, that 3C is a

highly transformative parody of Three's Company. (See supra III.B.1.) That, coupled with the

Court's estimation of the minimal effect of 3C on the market for or value of Three's Company

(see infra III.B.4), renders the third fair use factor of comparatively lesser importance.

4. The Effect on the Potential Market for or Value of the Copyrighted Work

16 The final fair use factor examines the market harm caused by the alleged infringement, taking

account “not only of harm to the original but also of harm to the market for derivative works.”

Harper & Row, 471 U.S. at 568, 105 S.Ct. 2218; see also, Castle Rock, 150 F.3d at 145. This

factor, of course, is contingent on the first three and considered holistically along with them.

17 Once again, parody is afforded greater latitude vis-à-vis its adaptation of the original work.

According to the Supreme Court:

We do not, of course, suggest that a parody may not harm the market at all, but when a lethal

parody, like a scathing theater review, kills demand for the original, it does not produce a harm

cognizable under the Copyright Act. Because “parody may quite legitimately aim at garroting the

original, destroying it commercially as well as artistically,” B. Kaplan, An Unhurried View of

Copyright 69 (1967), the role of the courts is to distinguish between “[b]iting criticism [that

merely] suppresses demand [and] copyright infringement[, which] usurps it.” Fisher v. Dees, 794

F.2d [432] at 438 [ (9th Cir.1986) ].

Campbell, 510 U.S. at 591–92, 114 S.Ct. 1164. This position reflects that there is no protectable

derivative market for criticism by acknowledging the reality that, generally speaking, authors of

original works rarely want their work to be criticized. Id. Therefore “[t]he fact that a parody may

impair the market for derivative uses by the very effectiveness of its critical commentary is no

22

more relevant under copyright that the like threat to the original market.” Id. at 593, 114 S.Ct.

1164.

Here, DLT argues that 3C damages the potential market for Three's Company because it

diminishes the novelty of, and the market for, a potential stage adaptation of Three's Company;

further, DLT claims that 3C fulfills the same demand as Three's Company itself. (Defs.' Memo at

26–28.) DLT cites Salinger in support of the former proposition (finding that an authorized

sequel of The Catcher in the Rye may undermine the potential market for an authorized sequel),

Salinger v. Colting, 607 F.3d 68, 74 (2d Cir.2010), and a review of 3C specifically referring to

the play as “three's company, too-oo!” (Defs.' Memo at 27; FAC Ex. B, Charles Isherwood,

Names Have Been Changed to Protect the Innuendoes, N.Y. Times, June 24, *535 2012

(“Names Have Been Changed” )) to bolster the latter.

18 Both arguments fail. The derivative work in Salinger was meant to be a sequel of the original,

which is not the case here. And the same review which referenced 3C with a play on words itself

refers to 3C as deconstruction of the popular television show (see “Names Have Been Changed”

). That theme is picked up by another review of 3C, aptly titled “Review: 2 gals, a guy and

Chekhov in play ‘3C’,” which observed:

If a surreal, downbeat inversion of a cheery 1970's sitcom sounds intriguing, then you and your

therapist will probably want to see ... “3C.” Adjmi has imagined how Chekhov (and maybe Wile

E. Coyote) would handle a classic American television situation comedy, based on the

lighthearted “Three's Company.” He's reworked the original fluffy good humor into deep

dysthymia and near-suicidal depression, using absurdism and existentialism overdosed with

Chekhovian angst.

(FAC Ex. B, Jennifer Farrar, 2 gals, a guy and Chekhov in play ‘3C’, Associated Press, June 21,

2012.) Indeed, 3C appears to be intended for those who enjoy other of Adjmi's “hard-edged,”

(id.), plays; and the Court is quite sure that a viewing of Three's Company does not require one's

therapist. In light of the Court's review of 3C and Three's Company, and contemporary reviews

of the production, 3C is not a potential market substitution for Three's Company. Accordingly,

there is no cognizable harm under the Copyright Act, and the fourth element weighs in favor of a

finding of fair use.

IV. CONCLUSION

For the reasons set forth above, the Court requires no additional information to reach the

conclusion that 3C is a fair use of Three's Company. The play is a highly transformative parody

of the television series that, although it appropriates a substantial amount of Three's Company, is

a drastic departure from the original that poses little risk to the market for the original. The most

important consideration under the Section 107 analysis is the distinct nature of the works, which

is patently obvious from the Court's viewing of Three's Company and review of the 3C

screenplay—materials properly within the scope of information considered by the Court in

deciding this motion on the pleadings. Equating the two to each other as a thematic or stylistic

matter is untenable; 3C is a fair use “sheep,” not an “infringing goat.” See Campbell, 510 U.S. at

586, 114 S.Ct. 1164.

23

This finding under the statutory factors is confirmed and bolstered by taking into account aims of

copyright, as the Court has done throughout. That body of law is designed to foster creativity. It

does so by, in effect, managing monopolies in knowledge: granting one in original work to

reward its creator, but ensuring it is limited, temporary, and does not operate as a moratorium on

certain ideas. The law is agnostic between creators and infringers, favoring only creativity and

the harvest of knowledge. Here, “further protection against parody does little to promote

creativity, but it places substantial inhibition upon the creativity of authors adept at using

parody.” Warner Bros., Inc. v. Am. Broad. Cos., Inc., 720 F.2d 231, 242 (2d Cir.1983).

Accordingly, Adjmi's Motion for Judgment on the Pleadings [dkt. no. 34] is GRANTED. The

Clerk of Court shall enter judgment accordingly.

So Ordered.

Footnotes

1

See Complaint, dated Jan. 30, 2014 [dkt. no. 1] (“Complaint”); First Amended Complaint, dated

Feb. 25, 2014 [dkt. no. 6] (“FAC”); Answer and Counterclaims, dated Mar. 24, 2014 [dkt. no.

10] (respectively, “Answer” and “CC”); Answer to Counterclaim, dated Apr. 17, 2014 [dkt. no.

11] (“Answer to CC”).

2

Adjmi claims that “Theatre Communications Group (“TCG”) has proposed publishing 3C in

book form as part of a volume of Adjmi's works. In addition, Samuel French, Inc. has proposed

publishing the acting edition of the play, publishing the play as an e-book, and handling stock

and amateur licensing for English-language productions of the play worldwide.” (FAC ¶ 67.)

DLT is “without knowledge or information sufficient to form a belief as to the truth of [those]

allegations ... and therefore denies” them. (Answer ¶ 67.) Given that 3C' s Off Broadway run is

over, the Court assumes there would be no live controversy if not for the potential future

publication and production of 3C.

3

The Production Companies were served on or about June 9, 2014 (see [dkt. no. 25] ) and

answered the Counterclaims, denying liability, on July 17, 2014 (see Answer of [Production

Companies], dated July 17, 2014 [dkt. no. 30] ).

4

See also Plaintiff/Counter–Defendants' Memorandum of Law in Support of Motion for Judgment

on the Pleadings, dated Aug. 25, 2014 [dkt. no. 35] (“Pl.'s Memo”).

24

5

See Memorandum of Law in Opposition to Plaintiff/Counter-Defendants' Motion for Judgment

on the Pleadings, dated Oct. 28, 2014 [dkt. no. 53] (“Defs.' Memo”); Declaration of Michael E.

Sander, dated Oct. 28, 2014 [dkt. no. 54] (“Sander Decl.”); Declaration of Michelle Mancino

March, dated Oct. 28, 2014 [dkt. no. 55] (“Marsh Decl.”).

6

Reply Memorandum of Law, dated Nov. 14, 2014 [dkt. no. 58], and Amended Reply

Memorandum of Law, dated Nov. 19, 2014 [dkt. no. 61] (together with Reply Memorandum of

Law, “Pl.'s Reply”).

7

See Declaration of Camille Caiman, dated Aug. 25, 2014 [dkt. no. 36] (“Caiman Decl.” or

“DVDs”); FAC Ex. A (“3C” or “the Screenplay”).

8

The First Amended Complaint cites Season 1, Episode 4 (¶ 21) and Season 4, Episode 9 (¶ 22).

The Counterclaims cite Season 1, Episode 1 (¶ 31(h)); Season 1, Episode 2 (¶ 31(m)); Season 2,

Episode 3 (¶ 36); Season 2, Episode 6 (¶ 35); and Season 2, Episode 22 (¶ 37). Adjmi's Answer

to the Counterclaims cites Season 2, Episode 3 (¶ 25) and Season 2, Episode 22 (¶ 37) (both of

which were cited in the Counterclaims). The Court notes also that the Sander Declaration cites

many episodes of Three's Company as part of a detailed comparison between the television

series and 3C. See Sander Decl. Ex. A.

9

The full lyrics: “Come and knock on our door. We've been waiting for you. Where the kisses are

hers and hers and his, three' company too ... Come and dance on our floor. Take a step that is

new. We've a lovable space that needs your face, three's company too ... You'll see that life is a

ball again and laughter is calling for you. Down at our rendezvous, three is company, too.”

10

All quotations in this section are from 3C, therefore only the page number is listed (or id., as

appropriate).

11

3C uses certain writing devices and abbreviations in crafting dialogue. “A double slash (//)

indicates either an overlap or jump ... speech in parentheses indicates either a sidetracked thought

or a footnote within a conversation, or shift in emphasis with NO transition ... A STOP is a pause

followed either by a marked shift in tone or tempo (like a cinematic jumpcut or a quantum leap)

or no change in tempo whatsoever ... These moments in the play are less psychological than

energetic. They have a kind of focused yet unpredictable stillness, something akin to Martial

Arts, where there is preparedness in the silence ....” (3C at 3.) In order to reflect the play as

25

accurately as possible, the Court's quotations from 3C appear exactly as they do in the

screenplay.

12

The Court cites two contemporary reviews of 3C, incorporated by reference as FAC Ex. B, in its

discussion of 3C' s effect on the potential market for or value of Three's Company. See infra

IV.B.4. These reviews are part of the FAC and thus properly within the Court's scope of review.

However, the Court notes that the reviews are not necessary to its overall finding that 3C is a fair

use of Three's Company.

13

In making this determination, the Court notes that it does not rely on reviews, user comments

related to online reviews, images of the play, or certain of Mr. Adjmi's statements regarding the

3C. Along the same lines, the Court does not require “intent” evidence, purporting to explain the

aims and goals animating Three's Company and 3C, of the type cited by the Court of Appeals in

Blanch, 467 F.3d at 252–55 or Cariou, 714 F.3d at 707.