Scènes à faire


A scène à faire is a scene in a work of fiction which is almost obligatory for a work in that genre.
In the United States, 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, a principle which has been expanded to cover other fields such as software development.

Examples in different genres

For example, a spy novel is expected to contain elements such as numbered Swiss bank accounts, a deadly woman, and various spy gadgets hidden in wristwatches, belts, shoes, and other personal effects. The United States Court of Appeals for the Second Circuit interpreted the scènes à faire doctrine expansively to hold that a motion picture about police work in the South Bronx would need to feature stereotypical elements such as drunks, prostitutes, vermin, and derelict cars to be perceived as realistic, and therefore a later film that duplicated these features of an earlier film did not infringe. These elements are not protected by copyright, though specific sequences and compositions of them can be.

Policy

The policy rationale of the doctrine of scènes à faire is that granting a first-comer exclusivity over scènes à faire would greatly hinder others in the subsequent creation of other expressive works. That would be against the constitutionally mandated policy of the copyright law to promote progress in the creation of works, and it would be an impediment to the public's enjoyment of such further creative expressions. By the same token, little benefit to society would flow from grants of copyright exclusivity over scènes à faire.
In a business and computer program context, the doctrine of scènes à faire is interpreted to apply to the practices and demands of the businesses and industries that the given computer program serves. Hence, the concepts of idea vs. expression and scènes à faire relate directly to promoting availability of business functionality.
In CMM Cable Rep., Inc. v. Ocean Coast Properties, Inc., 97 F.3d 1504, the court compared the merger and scènes à faire doctrines. The court said that the two doctrines were similar in policy, in that they both sought to prevent monopolization of ideas. However, merger applied when idea and expression were inseparable, but scènes à faire applied despite separability where an external common setting caused use of common elements and thus similarity of expression.

Limits of doctrine

The doctrine must be a matter of degree—that is, operate on a continuum. Consider the Second Circuit's ruling that the scène à faire for a movie about the South Bronx would need to feature drunks, prostitutes, vermin, and derelict cars. The principle must have a limit, however, so that something is outside the scènes à faire doctrine for South Bronx movies. Perhaps, cockroaches, gangs, and muggings are also part of the South Bronx scène à faire, but further similarity such as the film having as characters "a slumlord with a heart of gold and a policeman who is a Zen Buddhist and lives in a garage" surely goes beyond the South Bronx scène à faire. There must be some expression possible even in a cliche-ridden genre."

Cases


RG Anand v. M/s Deluxe Films'', AIR 1978 SC 1613''