Breaking with Convention: The Conceptual Failings of Scènes À Faire

37 Pages Posted: 11 Sep 2020

See all articles by Robert Walker

Robert Walker

University of California Hastings College of the Law

Date Written: July 30, 2020

Abstract

According to the scènes à faire doctrine, the standard or stock elements in an expressive work cannot, by themselves, support a copyright infringement claim. Like the idea/expression dichotomy and the merger doctrine, scènes à faire is intended to limit the scope of what authors may claim as their exclusive property and, in doing so, to promote the continued health of the public domain. Just as you can’t hold copyright in an idea, you also can’t copyright a standard dramatic convention or literary device. However, unlike its doctrinal siblings, scènes à faire has received little attention from legal scholars, and courts have never developed a test to differentiate between protectable, original expression and unprotected stock. To fill this gap, this Article details the myriad problems that are innate to scènes à faire. Specifically, the doctrine as currently formulated fails to account for the natural evolution of aesthetic conventions and is fundamentally at odds with the well-settled precedents provided by the Supreme Court’s decision in Bleistein v. Donaldson Lithographing Co. Therefore, even though the principle behind it is sound—no one should be able to stake a claim on parts of the public domain—the scènes à faire doctrine is flawed and needs to be reformed.

To rectify this problem, this Article proposes an interpretative guideline for courts and a supporting administrative change to the copyright registration procedures. First, when assessing scènes à faire, courts ought to follow a “bookshelf rule” where they identify stock conventions within a work through a comparison to other works in the same genre that existed at the time the work was created. In other words, courts should ask, “What library shelf does this work go on, and what else is already there?” Second, to aid in this process, the copyright registration process should be amended to require claimants to identify other works with which a new work shares artistic or literary affinities. Over time, these cross-references would help narrow and deepen the scope of the scènes à faire analysis, provide greater doctrinal clarity, and lessen the risk of over-claiming by incumbent copyright holders.

Keywords: copyright, intellectual property, IP, art, art law, law, artist, entertainment, movies, ideas, expression, merger

Suggested Citation

Walker, Robert, Breaking with Convention: The Conceptual Failings of Scènes À Faire (July 30, 2020). Cardozo Arts & Entertainment Law Journal, Vol. 38, No. 2, 2020, Available at SSRN: https://ssrn.com/abstract=3664323

Robert Walker (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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