Scenes à faire
Encyclopedia
Scène à faire 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 gadget
s hidden in wristwatches, belt
s, shoe
s, 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. 982 F.2d 693.
In that case, the court added it into its Abstraction-Filtration-Comparison
test.
Genre
Genre , Greek: genos, γένος) is the term for any category of literature or other forms of art or culture, e.g. music, and in general, any type of discourse, whether written or spoken, audial or visual, based on some set of stylistic criteria. Genres are formed by conventions that change over time...
of its type. In the U.S. it also refers to a principle in copyright law in which certain elements of a creative work
Creative work
A creative work is a tangible manifestation of creative effort such as literature, music, paintings, and software. Creative works have in common a degree of arbitrariness, such that it is improbable that two people would independently create the same work. Creative works are part of property...
are held to be not protected when they are mandated by or customary to the genre
Genre
Genre , Greek: genos, γένος) is the term for any category of literature or other forms of art or culture, e.g. music, and in general, any type of discourse, whether written or spoken, audial or visual, based on some set of stylistic criteria. Genres are formed by conventions that change over time...
.
For example, a spy novel is expected to contain elements such as numbered Swiss bank accounts, a femme fatale
Femme fatale
A femme fatale is a mysterious and seductive woman whose charms ensnare her lovers in bonds of irresistible desire, often leading them into compromising, dangerous, and deadly situations. She is an archetype of literature and art...
, and various spy gadget
Gadget
A gadget is a small technological object that has a particular function, but is often thought of as a novelty. Gadgets are invariably considered to be more unusually or cleverly designed than normal technological objects at the time of their invention...
s hidden in wristwatches, belt
Belt (clothing)
A belt is a flexible band or strap, typically made of leather or heavy cloth, and worn around the waist. A belt supports trousers or other articles of clothing.-History:...
s, shoe
Shoe
A shoe is an item of footwear intended to protect and comfort the human foot while doing various activities. Shoes are also used as an item of decoration. The design of shoes has varied enormously through time and from culture to culture, with appearance originally being tied to function...
s, 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
Source code
In computer science, source code is text written using the format and syntax of the programming language that it is being written in. Such a language is specially designed to facilitate the work of computer programmers, who specify the actions to be performed by a computer mostly by writing source...
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. 982 F.2d 693.
Computer Associates Int. Inc. v. Altai Inc.
Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 is a decision from the United States Court of Appeals for the Second Circuit that addressed to what extent non-literal elements of software are protected by copyright law. The court used and recommended a three-step process...
In that case, the court added it into its Abstraction-Filtration-Comparison
Abstraction-Filtration-Comparison test
The Abstraction-Filtration-Comparison test is a method of identifying substantial similarity for the purposes of applying copyright law. In particular, the AFC test is used to determine whether non-literal elements of a computer program have been copied...
test.
Cases
- Walker v. Time Life Films, Inc., 784 F.2d 44 (2d CirUnited States Court of Appeals for the Second CircuitThe United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
. 1986)
-
- After the release of the film Fort Apache, The BronxFort Apache, The BronxFort Apache, The Bronx is a 1981 crime drama film made by Producers Circle, Time-Life Television Productions Inc., and distributed by Twentieth Century-Fox Film Corporation. It was directed by Daniel Petrie and produced by Martin Richards, Thomas Fiorello, with David Susskind as executive producer...
, 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 (New York: Crowell, 1976. ISBN 0690010478). 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 CircuitUnited States Court of Appeals for the Second CircuitThe United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
ruled that these are stereo-typical ideas, and that the United States copyright lawUnited States copyright lawThe copyright law of the United States governs the legally enforceable rights of creative and artistic works under the laws of the United States.Copyright law in the United States is part of federal law, and is authorized by the U.S. Constitution...
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."
- After the release of the film Fort Apache, The Bronx
- Joshua Ets-Hokin v. Skyy Spirits Inc., 225 F.3d 1068 (9th CirUnited States Court of Appeals for the Ninth CircuitThe United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
. 2000)
-
- Another significant case in United States law was Ets-Hokin v. Skyy Spirits (2003), in which scenes à faire was upheld as an affirmative defenseAffirmative defenseA defendant offers an affirmative defense when responding to a plaintiff's claim in common law jurisdictions, or, more familiarly, in criminal law. Essentially, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. ...
by the United States Court of Appeals for the Ninth CircuitUnited States Court of Appeals for the Ninth CircuitThe United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
. The case involved a commercial photographer, Joshua Ets-Hokin, who sued SKYY vodkaSKYY vodkaSKYY vodka is produced by SKYY Spirits LLC in San Francisco, California. SKYY Vodka is 40% ABV or 80 proof; SKYY 90 Vodka is a 90 proof high-priced brand aimed at martini drinkers. When SKYY Spirits LLC first launched in 1992 SKYY vodka was its first product; its creator, Maurice Kanbar, claims the...
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.
- 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
Further reading
- Asked Questions (and Answers) about Fan Fiction, Chilling Effects.