Scènes à Faire

French for “scenes to be made” or “scenes that must be done”. They are obligatory scenes in a genre of its type. Generally, one cannot copyright genres, characters, or settings, or incidents that are indispensable to future creative works.

 

In the U.S. it specifically refers to a principle in copyright law in which certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre.

In litigation, it can be used as a defense to an infringement claim where plaintiff argues that there is a substantial similarity between the two works in question. If the parts of the work at issue are found to be “scenes a faire”, then those portions of the source work are not protected as intellectual property, but rather as information in the public domain to which copyright cannot attach. They are “fundamental building blocks of creative expression”.

 

Movies:

In Walker v. Time Life Films, Inc., 784 F.2d 44, 50 (2d Cir. 1986), the court held that "drunks, prostitutes, vermin and derelict cars would appear in any realistic work about ... policemen in the South Bronx" and were thus scènes à faire.

 

In Stromback v. New Line Cinema, 384 F.3d 283, 296 (6th Cir. 2004), the court stated that “parties, alcohol, co-eds, and wild behavior are natural elements in a story about a college fraternity.”

 

Music:

“The tendencies and commonalities found in tonal music can be described as scenes a faire”

 

Copyright protects only the expression of ideas not the ideas themselves. In music, the uncopyrightable scenes a faire elements of a tune. Four elements usually looked at: “(1)melody (2)harmony (3)rhythm & (4) combination of pitch, rhythm, chords” – Sometimes more is looked at, like for example timbre.

In other words, common elements of tonal music are used to distinguish between musical ideas/scenes a faire from expression.

Swirsky v. Carey: Can determine substantial similarity in musical copyright infringement cases through comparison of various elements like harmony and tempo. Extrinsic test.

 

Stock Characters

A stereotypical fictional character found in a book, play, or film. Examples include a “hero” or “damsel in distress”. It is a certain combination of characteristics that are not unique in their expression and are also indispensable to the story as standard expressions of well understood archetypes.

 

Copyright protection cannot be extended to the characteristics of stock characters in a story unless the character sufficiently meets the originality/creativity requirement.

 

Cases:

Nichols v. Universal Pictures: Abstraction Test. As you increase the levels of abstraction, closer you get to expression, rather than an unprotectable idea.

 

Krofft- Mcdonald’s puppet advertisements (McDOnaldland) similar to producers’ Sid & Mary Krofft’s puppet show (Pufnstuff). Extrinsic/Intristic test.

 

In Hogan v. DC Comics, 48 F. Supp. 2d 298, 310-11 (S.D.N.Y. 1999), “half-vampire and half-human” characters were found to necessarily have a "sinister genealogy," and that a character of this type “would predictably involve a struggle and ultimate choice between good and evil”, and “the use of flashback or memory is the most logical way to portray events from that character's past.”

In Kaplan v. The Stock Market Photo Agency, Inc., 133 F. Supp. 2d 317, 325 (S.D.N.Y. 2001), a “pinstripe suit and wing-tip shoes” was held “typical garb” in two nearly identical photos of businessmen contemplating a leap from a tall building.