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Cease-and-Desist Letter Instead of Jitters

David Adjmi, a professional playwright, wrote “3C” that was produced off Broadway. His modest annual income, excluding royalties, from theater commissions and grants was reported between $25,000 and $50,000. It was a parody of a TV series “Three’s Company” about a man pretending to be gay living with two female roommates. Copyright owner of “Three’s Company” sent a cease-and-desist letter arguing violation of intellectual property. Adjmi did not contend that his play was unrelated to the TV series, instead he was commenting on the famous series.

The cease-and-desist letter apparently listed at least 17 common elements that Adjmi took from the series thus undermining a fair-use parody argument he could have raised in defense of his work. Instead of fighting the legal battle, Adjmi initially decided to comply with the terms of the letter. Apparently, “[t]he idea of spending emotional energy and possibly his savings in a legal battle seemed depressing.”

The challenge has been issued, ‘stop infringing’ but the outcome is uncertain and the fight may be brewing.  Encouraged by other playwrights Adjmi is weighing his options and probably waiting for an attorney to step up and offer assistance in the matter. At least one intellectual property attorney quoted in the New York Times believes Adjmi has a good defense case for his work being a parody. The same article notes that the publicity surrounding Adjmi/Three’s Company dispute may attract an attorney willing to represent Adjmi on pro bono basis. All Adjmi would have to spend in this scenario would be his emotional energy.

What is interesting to me in this situation (incidents where creators dispute originality or fair use of ideas are much more common) is the appeal for pro bono assistance. There are indeed many attorneys interested in representing artists and working with arts-related issues, including copyright, real estate, trusts and estates.  In some instances, attorneys take clients on pro bono basis, even as they struggle to collect fees from other clients.  Pro bono service providers, such as Lawyers Alliance for New York or Volunteer Lawyers for the Arts, also routinely review and place cases, such as the one surrounding “3C,” with qualified attorneys, frequently on pro bono basis.  Various bar associations, including New York State Bar Association’s Entertainment, Arts and Sports Law Section, offer pro bono referral services. All with a caveat, there are no guarantees that financial situation of a client-to-be qualifies for pro bono representation and that a qualified attorney will emerge to offer his or her time and services on pro bono basis. The pressing question is what must happen first: should Adjmi seek legal assistance, and thus decide that he want to fight for his work, or should eager attorneys flock to him offering their services for free.

The recently announced 50-hour requirement of pro bono work from attorneys seeking admission to New York Bar may dovetail with this quandary. Where there is a legal dispute to be settled and one of the sides is mildly vested in the outcome, have that side represented by a recent grad fulfilling the pro bono requirement. To balance the playing field, courts should decline to grant legal fees to the winning side (for training purposes).

Source: The New York Times.