Yes, You Can Riff on Popular Culture—with Fair Use

The judge’s decision in the “Three’s Company” fair use case makes inspirational reading. For copyright geeks, it’s practically poetry. And for anyone else, it’s good news that the judge so eloquently defends the right to reuse copyrighted material when creating new culture. That’s a defense against the self-censorship that happens when speech is chilled for fear of copyright infringement.

The contest was between the owners of the sitcom “Three’s Company” and a playwright who wrote a dark, disturbing play about roommates in a situation that deliberately evoked and commented on it. After getting a cease-and-desist letter from the owners, the playwright, David Adjmi, asked a judge to rule that his use was fair. The judge did more than that.

District Judge Loretta Preska, citing the 1990 pathbreaking work by appeals court judge Pierre Leval, first reminded everyone that copyright law is “designed to foster creativity.” U.S. copyright law does that (among other ways) both by giving perks to new creators—a limited monopoly—and also by freeing people who are creating new culture and using reasonable amounts of copyrighted material to do so to do that without infringing. The judge was careful to point out that, in service of fostering creativity, the law does not privilege copyright owners against new users:  “The law is agnostic between creators and infringers, favoring only creativity and the harvest of knowledge.”

On the “four factors” that judges should--among other things they may consider--weigh, the judge found that the first pointed to a “transformative” purpose; the judge also found that the playwright used an appropriate amount, and that there was little risk of market harm. The judge found the play, 3C, a “highly transformative parody” and a “deconstruction” of the original sitcom, a “drastic departure” from the original that would not function as a substitute for it. To do parody, it needed rich material from the original to evoke it, and and it did so under fair use: “This is in keeping with the general calculus of copyright law: promoting the arts and sciences by rewarding ingenuity, without stifling creativity.”

Several times in the decision the judge repeated the importance of going back to basics—the purpose of copyright law to foster creation of culture, and the fact that the law does not have bias toward current copyright holders in executing that purpose.  

Read more about how creative communities are employing best practices in fair use.