“Scenes a faire” is neither the title of a French ” New Wave” film nor is it a description of French President Francois Hollande’s personal life, in which he had four children with a fellow Socialist politician, then dated a reporter for the magazine, Paris Match, who moved into the Presidential Palace with him, during which time had an affair with a French Actress. No, it is a doctrine of copyright law which holds that there are “incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.” Alexander v. Haley, 460 F.Supp. 40, 45 (S.D.N.Y.1978). Similarity of expression, whether literal or nonliteral, which necessarily results from the fact that the common idea is only capable of expression in more or less stereotyped form will preclude a finding of actionable similarity. Such stock literary devices are not protectable by copyright.

So, while a plaintiff may prove copying by showing that a defendant had access to plaintiff’s work and that the two works are substantially similar, under the above doctrine, that plaintiff may not be eligible for relief for copyright infringement if the alleged similar aspects of both works are Scenes a Faire.

The courts have been very specific in various cases in identifying what qualifies as these. In Alexander v. Haley, 460 F.Supp. 40, 45 (S.D.N.Y.1978), the court listed a number of types of incidents that are not copyrightable in a slave story; attempted escapes, flights through the woods pursued by baying dogs, the sorrowful or happy singing of slaves …. scenes portraying sex between male slave owners and female slaves and the resentment of female slave owners … slave owners complaining about the high price of slaves ….

In a case involving the classic video game, “Asteroids,” the court wrote, “There are certain forms of expression that one must necessarily use in designing a video game in which a player fights his way through space rocks and enemy spaceships. The player must be able to rotate and move his craft. All the spaceships must be able to fire weapons which can destroy targets. The game must be easy at first and gradually get harder, so that bad players are not frustrated and good ones are challenged. Therefore, the rocks must move faster as the game progresses. In order for the game to look at all realistic, there must be more than one size of rock. Rocks cannot split into very many pieces, or else the screen would quickly become filled with rocks and the player would lose too quickly. All video games have characteristic sounds and symbols designed to increase the sensation of action. The player must be awarded points for destroying objects, based on the degree of difficulty involved. All these requirements of a video game in which the player combats space rocks and spaceships combine to dictate certain forms of expression that must appear in any version of such a game. In fact, these requirements account for most of the similarities between “Meteors” and “Asteroids.” Similarities so accounted for do not constitute copyright infringement, because they are part of plaintiff’s idea and are not protected by plaintiff’s copyright. See Atari, Inc. v. Amusement World, Inc., et al., 547 F.Supp. 222 (D. Maryland 1981).

In a case involving a film script, Muller v. Twentieth Century Fox Film Corporation, 794 F.Supp.2d 429 (S.D.N.Y. 2011), that court wrote that “certain literary or cinematographic elements are not protected even if they take the form of concrete expression, such as ‘stock’ themes or ‘scenes a faire.” Id. “Stock themes, or themes that are “commonly linked to a particular genre,” are only protected under copyright law “to the extent they are given unique…expression in an original creation.” Examples in a film or film script depicting a poor crime-ridden neighborhood would include images of drunks, prostitutes, rodents and abandoned cars, and such features, the court held were unprotectable “scenes a faire.” Muller, at 441.

As to Barbie, in a Second Circuit case, Mattel, Inc. v. Goldberger Doll Mfg. Co., 365 F.3d 133 (2004) involving the copyright infringement of the “Barbie doll,” the court wrote in dictum that “Mattel’s copyright in a doll visage with an upturned nose, bow lips, and widely spaced eyes will not prevent a competitor from making dolls with upturned noses, bow lips, and widely spaced eyes, even if the competitor has taken the idea from Mattel’s example, so long as the competitor has not copied Mattel’s particularized expression. An upturned nose, bow lips, and wide eyes are the “idea” of a certain type of doll face. That idea belongs not to Mattel but to the public domain.”

And in a 2013 case, Rucker v. Harlequin Enterprises, decided by the United States District Court in Houston, that court identified numerous instances of scenes a faire, for example, “[C]onspiracies, characters with superhuman qualities, and advanced technology . . . are unoriginal and uncopyrightable stock elements of the action-adventure and science fiction film genres,” “shared characteristics of both parties’ Santa toys of a “traditional red suit and floppy cap, trimmed in white, black boots and white beard” and “nose like a cherry” are common to all Santas and not probative of copying,” and “a beautiful woman and a handsome, wealthy man fall in love, become estranged, find themselves alone together in close quarters, have a passionate reunion, rediscover their love and commitment, and begin a new life together…are familiar plot elements in the romance genre and would be scenes à faire.

In addition, “cliched language, phrases, and expressions conveying an idea that is typically expressed in a limited number of stereotypical fashions are not protectable in and of themselves.” See Green v. Lindsey, 885 F. Supp. 469 (S.D. N.Y. 1992.)

The Scenes a Faire doctrine can therefore be a defense to a claim of copyright infringement if the alleged copied elements are not sufficiently creative as to be protectable. And another example where federal judges act as critics.



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