Case 1:14-cv-00568-LAP Document 67 Filed 03/31/15 Page 1 of 56
`Case 1:14—cv—OO568—LAP Document 67 Filed 03/31/15 Page 1 of 56
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`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF NEW YORK
`_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I _ _ _ _ _ _ _ _ __X
`
`DAVID ADJMI,
`
`:
`
`14 Civ. 568 (LAP)
`
`Plaintiff,
`
`V.
`
`OPINION & ORDER
`
`DLT ENTERTAINMENT LTD.,
`
`Defendants.
`
`_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I I _ _ M H M H M M M W M W M Mix to
`
`LORETTA A. PRESKA, Chief United States Di
`
`This is an action for declaratory judgment brought by
`
`David Adjmi
`
`(“Admji”) against DLT Entertainment LTD (“DLT”).
`
`Adjmi is a playwright who authored gg, 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, Enc., 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 gg and claims that the play infringes DLT’s
`
`copyright
`
`in Three's Company. Adjmi wishes to authorize
`
`publication of gg and licensing of the play for further
`
`production and therefore brings this action seeking a
`
`declaration that 39 does not infringe DLT’s copyright
`
`in Three's
`
`Qgmpany. Adjmi's motion [dkt. no. 343
`
`is GRANTED for the
`
`following reasons.
`
`
`Case 1:14—cv—OO568—LAP Document 67 Filed 03/31/15 Page 1 of 56
`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF NEW YORK
`_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I _ _ _ _ _ _ _ _ __X
`
`DAVID ADJMI,
`
`:
`
`14 Civ. 568 (LAP)
`
`Plaintiff,
`
`V.
`
`OPINION & ORDER
`
`DLT ENTERTAINMENT LTD.,
`
`Defendants.
`
`_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I I _ _ M H M H M M M W M W M Mix to
`
`LORETTA A. PRESKA, Chief United States Di
`
`This is an action for declaratory judgment brought by
`
`David Adjmi
`
`(“Admji”) against DLT Entertainment LTD (“DLT”).
`
`Adjmi is a playwright who authored gg, 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, Enc., 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 gg and claims that the play infringes DLT’s
`
`copyright
`
`in Three's Company. Adjmi wishes to authorize
`
`publication of gg and licensing of the play for further
`
`production and therefore brings this action seeking a
`
`declaration that 39 does not infringe DLT’s copyright
`
`in Three's
`
`Qgmpany. Adjmi's motion [dkt. no. 343
`
`is GRANTED for the
`
`following reasons.
`
`
`
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`I.
`
`BACKGROUND AND PROCEDURAL HISTORY1
`
`On June 6, 2012, ag began a run Off Broadway at
`
`Rattlestick Playwrights Theater (“Rattlestick”),
`
`located in New
`
`York City.
`
`(FAC fl 60, Ex. C; Answer fl 61.) Shortly thereafter,
`
`on or about June 14, 2012,
`
`lawyers representing BLT sent a
`
`“cease—and—desist” letter to Rattlestick, among other parties,
`
`asserting that fig infringed DLT’s copyright
`
`in Three's Company
`
`and demanding that Rattlestick “cease further performances of
`
`[QC]; provide ... an accounting of all revenues derived from gg
`
`to date; and furnish DLT with ... written assurance that
`
`[Rattlestick and others] will fully comply with these demands.”
`
`(FAC fl 61; Answer fi 61.) Although §g’s production ended in July
`
`2012 (FAC fl 61), DLT's “cease"and~desist” letter resulted in a
`
`back—and—forth between Adjmi’s counsel and lawyers for DLT.
`
`(FAC {Hi 62-66; Answer 1|1l 62-66.)
`
`The reason for the continued correspondence, and for
`
`the present action,
`
`is because Admji claims he has received an
`
`offer to publish gg and to license its performance.3
`
`(FAC fl 67.}
`
`(“Complaint”);
`1 gee Complaint, dated Jan. 30, 2014 idkt. no. 1]
`First Amended Complaint, dated Feb. 25, 2014 [dkt. no. 6]
`(“FAC”); Answer and Counterclaims, dated Mar. 24, 2014 [dkt. no.
`
`“Answer” and “CC”); Answer to Counterclaim,
`(respectively,
`10]
`dated Apr. 17, 2014 [dkt. no. 11]
`(“Answer to CC”).
`
`2 Adjmi claims that “Theatre Communications Group (“TCG”) has
`
`proposed publishing gg in book form as part of a volume of
`Adjmi’s works.
`In addition, Samuel French,
`Inc. has proposed
`
`2
`
`
`
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`DLT,
`
`for its part, has refused to reconsider its initial
`
`position and continues to assert that gg infringes upon its
`
`copyright
`
`in Three's Company.
`
`(FAC fl 68; Answer fl 68.) This
`
`position presents a de facto roadblock to future publication or
`
`production of 39, which Admji now seeks to remove.
`
`To that end, on January 30, 2014, Adjmi filed the
`
`Complaint against DLT, seeking a declaratory judgment that fig
`
`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.
`
`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 fl
`67.)
`DL? is “without knowledge or information sufficient to
`form a belief as to the truth of
`[those} allegations ... and
`therefore denies” them.
`(Answer fl 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 gg.
`
`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]).
`
`
`
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`On August 24, 2014, Adjmi moved for judgment on the
`
`pleadings.
`
`(Motion for Judgment on the Pleadings, dated Aug.
`
`25, 2014 idkt. 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 Following briefing and oral argument, United States
`
`District Judge Thomas P. Griesa GRANTED Admji’s Discovery
`
`Motion.
`
`(See Order, dated Oct. 2, 2014 idkt. no. 47].)
`
`Accordingly, DLT5 and Adjmié then proceeded to complete briefing
`
`the present Motion.
`
`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").
`
`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 Decl.");
`Sander, dated Oct. 28, 2014 [dkt. no. 54]
`Declaration of Michelle Mancino March, dated Oct. 28, 2014 [dkt.
`no. 55]
`(“Marsh Decl.”).
`
`5 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").
`
`4
`
`
`
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`II .
`
`TE-IE 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(0)
`
`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 pleadingswspecifically the Complaint, Answer,
`
`Counterclaims, and Answer to the Counterclaims—present different
`
`conceptions of §hree’s Company and gg. 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 QC, each incorporated by
`
`reference in the pleadings.7
`
`II.A and II.B supply brief
`
`backgrounds of Three's Company and gg, respectively, before
`
`presenting a more detailed account of the two works.
`
`7 See Declaration of Camille Calman, dated Aug. 25, 2014 [dkt.
`no. 36]
`(“Calman Decl." or “DVDs”); PAC Ex. A (“§§” or “the
`Screenplay").
`
`
`
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`A.Three’s Company
`
`Three's Company was one of the most popular television
`
`shows of the 1970's.
`
`(FAC fl 17; Answer l 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.
`
`(FAG fl 17; Answer l 17.) Three's Company was a situation comedy
`
`that revolved around three single roommates sharing an apartment
`
`in Santa Monica, California.
`
`(FAC fl
`
`l8; Answer i 18.) As
`
`described on the cover of the Season One DVD:
`
`the ever-
`John Ritter stars as Jack Tripper ...
`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 fl 19;
`
`Answer fl 19.)
`
`And as in Man About
`
`the House,
`
`the male
`
`roommate in Three's CompanywJack—pretends to be homosexual.
`
`(FAC fl 18; Answer fl 18.) Three's Company was considered
`
`daring for its time,
`
`in that it featured three single,
`
`
`
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`oppositewsex adults platonically sharing an apartment
`
`in
`
`the late 1970s.
`
`(FAC i 20; Answer fl 20.)
`
`Indeed,
`
`the
`
`issues tackled by Three's Company were revolutionary.
`
`(PAC
`
`fl 25; Answer fl 25.)
`
`Although the pleadings incorporate by reference all
`
`nine seasons of Zhree’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 Cgmpany.
`
`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 sunwbathing and scantily~clad
`
`Chrissy; all while the familiar chorus of “Come and Knock on My
`
`(fl 21)
`8 The First Amended Complaint cites Season 1, Episode 4
`and Season 4, Episode 9
`(fl 22).
`The Counterclaims cite Season
`1, Episode 1
`(fl 3l(h)); Season 1, Episode 2
`(fl 3l(m)); Season 2,
`Episode 3
`(W 36); Season 2, Episode 6
`(Q 35); and Season 2,
`Episode 22 (fl 37). Adjmi’s Answer to the Counterclaims cites
`Season 2, Episode 3
`(fl 25) and Season 2, Episode 22
`(i 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 EC.
`gee Sander Decl. Ex. A.
`
`7
`
`
`
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`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 ge 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
`
`“Come and knock on our door. We've been
`9 The full lyrics:
`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.”
`
`
`
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`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.
`
`Chrissy makes inedible toast (“It's not my fault, Eleanor didn’t
`
`leave the recipel”) 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
`
`
`
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`issue, it is helpful to provide a few examples representative of
`
`Three's Company's treatment of that topic:
`
`(on Jack's appearance in Eleanor's dress) She
`JANET:
`looks dreadful without makeup.
`
`(on hearing there is a man in Chrissy and
`MR. ROPER:
`Janet's apartment) A man up there,
`in woman's clothes?
`Are you sure? They all look alike nowadays!
`
`’[I] won’t have
`(paraphrasing Mr. Roper)
`MRS. ROPER:
`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
`
`roommfalsely 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.
`
`10
`
`
`
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`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 othersmJack 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."
`
`H
`
`
`
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`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. Show
`
`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
`
`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—p1ot: 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 bossmwhom the females at
`
`work call “Christopher Columbus” because of his proclivity to
`
`“explore” female subordinates with his hands—has been making
`
`12
`
`
`
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`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 relationsfi
`
`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.
`sound.)
`
`(Jack makes a kissing
`
`{See also PAC fl 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:
`
`13
`
`
`
`Case 1:14-cv-00568-LAP Document 67 Filed 03/31/15 Page 14 of 56
`Case 1:14—cv—OO568—LAP Document 67 Filed 03/31/15 Page 14 of 56
`
`Mrs. Roper keeps the puppy as a twentieth anniversary gift from
`
`Mr. Roper, who had forgotten the anniversary andmas Mrs. Roper
`
`knowsmhad no role in delivering the dog to their doorstep.
`
`4. Season 2, Episode 3: Janet's Promotion
`
`Janet;§ 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:
`
`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.
`time a man looked at my eyes.
`
`I can't remember the last
`
`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
`
`14
`
`
`
`Case 1:14-cv-00568-LAP Document 67 Filed 03/31/15 Page 15 of 56
`Case 1:14—cv—OO568—LAP Document 67 Filed 03/31/15 Page 15 of 56
`
`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 ideasl” 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
`
`15
`
`
`
`Case 1:14-cv-00568-LAP Document 67 Filed 03/31/15 Page 16 of 56
`Case 1:14—cv—OO568—LAP Document 67 Filed 03/31/15 Page 16 of 56
`
`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?
`
`CHRTSSY:
`
`(In dismay)
`
`...
`
`instead of.
`
`The joke is in the irony that Chrissy is upset because
`
`Jack played against the common male stereotype by E93 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
`
`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
`
`16
`
`
`
`Case 1:14-cv-00568-LAP Document 67 Filed 03/31/15 Page 17 of 56
`Case 1:14—cv—OO568—LAP Document 67 Filed 03/31/15 Page 17 of 56
`
`humorous attempt to clear the garden (Jack: “There are pockets
`
`of Japanese in [here] who don't know the war is overl”)
`
`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 browwbeaten 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
`
`17
`
`
`
`Case 1:14-cv-00568-LAP Document 67 Filed 03/31/15 Page 18 of 56
`Case 1:14—cv—OO568—LAP Document 67 Filed 03/31/15 Page 18 of 56
`
`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
`
`illegali” 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
`then we can get it on.
`
`in the tub with you,
`
`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.
`little more action, okay?
`
`A little less talk and a
`
`{See also FAC fl 22.) This innuendo is a recurring sub—plot
`
`throughout
`
`the episode.
`
`18
`
`
`
`Case 1:14-cv-00568-LAP Document 67 Filed 03/31/15 Page 19 of 56
`Case 1:14—cv—OO568—LAP Document 67 Filed 03/31/15 Page 19 of 56
`
`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 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 tyrannosaurusmrex) 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.
`
`19
`
`
`
`Case 1:14-cv-00568-LAP Document 67 Filed 03/31/15 Page 20 of 56
`Case 1:14—cv—OO568—LAP Document 67 Filed 03/31/15 Page 20 of 56
`
`13.3
`
`fig is a play authored by American playwright David
`
`Adjmi.
`
`in summer 2012,
`
`it was produced for a limited run at
`
`Rattlestick, Off Broadway.
`
`(FAC fl 60, Ex. C; Answer fl 61.)
`
`The
`
`parties agree that fig copies the plot premise, characters, sets,
`
`and certain scenes from Three's Company.
`
`(FAC fl 35; Answer
`
`fl 35.) More specifically, as in ?hree’s Compan , §g'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.
`
`(EQL) However,
`
`the parties agree on little else
`
`regarding the extent to which gg 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 §g’s
`
`screenplay,
`
`incorporated by reference in the pleadings.
`
`fig 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.)W This is an apposite preamble for the play.
`
`therefore only the
`10 All quotations in this section are from gg,
`page number is listed (or id., as appropriate).
`
`20
`
`
`
`Case 1:14-cv-00568-LAP Document 67 Filed 03/31/15 Page 21 of 56
`Case 1:14—cv—OO568—LAP Document 67 Filed 03/31/15 Page 21 of 56
`
`gg assumes a heavy tone from the outset.
`
`The first
`
`scene finds Linda and Connie hung over from the previous night's
`
`goinguaway 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 iead 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//.”“A (Id;) After Connie’s
`
`sobering observation,
`
`the roommates touch on a variety of
`
`topics in short order: money problems
`
`(“LlNDA: 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
`
`H gp 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
`
`the Court's quotations from gg appear
`accurately as possible,
`exactly as they do in the screenplay.
`
`21
`
`
`
`Case 1:14-cv-00568-LAP Document 67 Filed 03/31/15 Page 22 of 56
`Case 1:14—cv—OO568—LAP Document 67 Filed 03/31/15 Page 22 of 56
`
`this."); references to sexual assault
`
`(“LINDA:
`
`(reacts)
`
`Don't you think it's dangerous to date strange men?
`
`CONNIE: {matter~of~factly0 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 )
`
`gg is not light fare.
`
`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 poundsff LEAVE ME ALONE.
`(ll.)
`
`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.)
`
`EENDA:
`
`I'm ugly and I
`
`look like a dyke!
`
`CONNIE: You are not a dyke.
`
`[PAUSE]
`
`LINDA:
`
`I know wh
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