Scènes à Faire

copyright wars

Scène à faire (French for ‘scene to be made’ or ‘scene that must be done’) is a scene in a book or film which is almost obligatory for a genre of its type. In the U.S. it also 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.

For example, a spy novel is expected to contain elements such as numbered Swiss bank accounts, a femme fatale, and various spy gadgets hidden in wristwatches, belts, shoes, and other personal effects. These elements are not protected by copyright, though specific sequences and compositions of them can be.

As another example, in programming, it is often customary to list variables at the beginning of the source code of a program. In some programming languages, it is required to also declare the type of variable at the same time. Depending on the function of a program, certain types of variables are to be expected. If a program deals with files, variable types that deal with files are often listed and declared. As a result, variable declarations are generally not considered protected elements of a program. The United States Court of Appeals 2nd Circuit made this part of the analysis for infringement of non-literal elements of computer code in ‘Computer Associates International, Inc. v. Altai, Inc.’ In that case, the court added it into its Abstraction-Filtration-Comparison test (a method of identifying substantial similarity for the purposes of applying copyright law).

‘Cain v. Universal Pictures’ in 1942 was the case where the term was introduced, when the writer James M. Cain sued Universal Pictures, the scriptwriter and the director for copyright infringement in connection with the film ‘When Tomorrow Comes.’ Cain claimed a scene in his book where two protagonists take refuge from a storm in a church had been copied in a scene depicting the same situation in the movie. Judge Leon Rene Yankwich ruled that there was no resemblance between the scenes in the book and the film other than incidental ‘scènes à faire,’ or natural similarities due to the situation.

After the release of the film ‘Fort Apache, The Bronx,’ in 1986 author Thomas Walker filed a lawsuit against one of the production companies, Time-Life Television Films (legal owner of the script), claiming that the producers infringed on his book ‘Fort Apache’ (1976). Among other things, Walker, the plaintiff, argued that: ‘both the book and the film begin with the murder of a black and a white policeman with a handgun at close range; both depict cockfights, drunks, stripped cars, prostitutes, and rats; both feature as central characters third- or fourth-generation Irish policemen who live in Queens and frequently drink; both show disgruntled, demoralized police officers and unsuccessful foot chases of fleeing criminals.’ But the United States Court of Appeals for the Second Circuit ruled that these are stereotypical ideas, and that the United States copyright law does not protect concepts or ideas. The court ruling stated: ‘the book ‘Fort Apache’ and the film ‘Fort Apache: The Bronx’ were not substantially similar beyond [the] level of generalized or otherwise nonprotectible ideas, and thus [the] latter did not infringe copyright of [the] former.’

Another significant case in United States law was ‘Ets-Hokin v. Skyy Spirits’ (2003), in which scenes à faire was upheld as an affirmative defense by the United States Court of Appeals for the Ninth Circuit. The case involved a commercial photographer, Joshua Ets-Hokin, who sued SKYY vodka when another photographer created advertisements with a substantially similar appearance to work he had done for them in the past. It was established that the similarity between his work and the later works of the photographer was largely mandated by the limited range of expression possible; within the constraints of a photo shoot for a commercial product there are only so many ways one may photograph a vodka bottle. In light of this, to establish copyright infringement, the two photos would have been required to be virtually identical. The originality of the later work was established by such minor differences as different shadows and angles.

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