INTRODUCTION
Scène à Faire is French for ‘scene to do/scene to be made’. It refers to elements that are so common in a particular genre or form of creative work that they are considered essential for conveying those ideas. These generic or clichéd elements, which are often necessary to express certain ideas, are not eligible for copyright protection. Essentially, when certain features are standard or essential to the treatment of an idea, they are treated as part of the idea itself and, as such, are not protected under copyright. It is safe to say that the doctrine plays a pivotal role in addressing the idea-expression dichotomy.
In this article, we will look into the doctrine of Scene a Faire and its implementation in the judicial courtroom.
COPYRIGHT EXCEPTION: SCENE A FAIRE
It is a well-settled principle that Copyright does not protect ideas themselves, but rather the unique way of expressing them. This distinction promotes creativity and the free exchange of knowledge. It safeguards the tangible expression of ideas or information, rather than the underlying concepts or knowledge themselves. This ensures that creators can protect their original work while allowing others to freely build upon ideas without fear of infringement.
If the work does not include Scène à Faire, it means the elements, techniques, or methods used in the work are original. Deciding what counts as an essential scene can be subjective and may vary depending on the genre, medium, or even cultural perspectives. This lack of clarity can lead to inconsistent decisions and leave creators unsure about which parts of their work are protected by copyright. If common elements are considered unprotected because they are seen as necessary for a genre, creators might avoid making new and creative versions of them. This could limit the development of fresh and original ideas.
This doctrine first emerged in the landmark U.S. case of Cain v. Universal Pictures Co., where Judge Leon Yanwick acknowledged that there were similarities between a scene from the book and a scene from the movie. The judge pointed out that although there were certain resemblances between the book and the film adaptations; those elements or incidents are naturally tied to such a scenario and would inevitably appear in any work exploring that theme. Under the U.S. Copyright law, the holder is required to demonstrate that the alleged infringement is more than just a shared theme but a substantial similarity to the protected expression itself.
In Kaplan v. Stock Market Photo Agency, the court illustrates how the doctrine is applied. The case involved two similar photographs: one taken by Peter Kaplan in 1989 and another by Bruno Benvenuto in 1997. Both images show a man standing on a ledge. Kaplan claimed that Benvenuto’s photo was too similar to his own and argued that it was copyright infringement. However, the court disagreed and ruled in favour of Benvenuto. The court explained that the image of a person on a ledge was a common way to represent the idea of a frustrated businessperson in today’s fast-paced work environment.
In other words, the court found that this image was a Scène à Faire – a standard and necessary scene used to express a common theme. Because this was a general representation, no one could own the concept through copyright. As a result, despite the similarities between the photos, Benvenuto’s work did not infringe on Kaplan’s copyright.
In India, this Doctrine was discussed in NRI Film Production Associates v. Twentieth Century Fox Film Corporation. The court held that the picturisation of the blasting of nuclear missiles, disruption of communication, and traffic jams are nothing but “scene a fair” commonly found in scientific fiction. Indeed, the several English earlier movies that have been marked and presented visually for the court’s benefit disclose that the confrontation of aliens with the men on the earth, and the spaceship energy shields are the ideas that evolved several decades ago and there is nothing special about the idea. The so-called unique features could at best be called an idea, but not a precisely defined expression to confer copyright.
CONCLUSION
The doctrine of Scène à Faire serves an important purpose in copyright law by ensuring that common elements, which are essential to conveying particular ideas, are not overprotected. This helps in maintaining balance between protecting original creative expressions and fostering creativity. While identifying what constitutes a “necessary” scene can be subjective, as it depends on the genre or theme in question, the degree of ambiguity is relatively low.
As copyright law continues to evolve, the application of this doctrine will remain critical in ensuring that copyright protection is granted to true innovations, rather than commonplace ideas and expressions.
Author – Dixit PARAKH
SOURCES
- Idea Expression Dichotomy in Copyright Law by Esheetaa Gupta.
- Idea-Expression Dichotomy in Copyright: Judicial Ruling and Merger Doctrine by Devyani Pranav.
- NRI Fil, Production Associates (P) Ltd. v. Twentieth Century Fox Film Corporation (ILR 2004 KAR 4530)
- Scène à Faire: Copyright law’s fancy French phrase for “being basic” by James Mccammon.
- Scenes affaire in India by Priyanka Chakraborty.
- The Relevance of Doctrine of Scène à Faire in Copyright Law by Vaibhavi Pandey.
- Cain v. Universal Pictures Co., 47 F.Supp. 1013 (1942)
- Kaplan v. Stock Market Photo Agency Inc., 133 F. Supp. 2d 317 (S.D.N.Y. 2001).
