Scènes à Faire/h1>

French for “scene to be made” or “scene that must be done”

“Scènes à Faire … 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.”

“Scenes A Faire Definition:
Elements of an original work that are so trite or common that they are not captured by copyright.”
Duhaime Legal Dictionary

Case name, yearFindings
Cain v. Universal Pictures, 1942“it was inevitable that incidents like these and others which are, necessarily, associated with such a situation should force themselves upon the writer in developing the theme.”
Apple Computer, Inc. v. Microsoft Corp., 1994“When the range of protectable expression is narrow, the appropriate standard for illicit copying is virtual identity.”
Reyher v. Children’s Television Workshop, 1976“Another helpful analytic concept is that of scenes a faire, sequences of events which necessarily follow from a common theme. ‘[S]imilarity of expression … 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.’” (quoting Nimmer)
Kisch v. Ammirati & Puris Inc., 1987“The copyrightable elements of a photograph have been described as the photographer’s original conception of his subject, not the subject itself.”
Reed-Union Corp. v. Turtle Wax, Inc., 1996“[no infringement when the] central elements … are scenes a faire outside the scope of copyright protection.”
Herzog v. Castle Rock, 1999“scenes a faire, ‘sequences of events which necessarily follow from a common theme,’ are not protectible. Incidents, characters, or settings that are indispensable or standard in the treatment of a given topic are not copyrightable.”
Joshua Ets-Hokin v. Skyy Spirits Inc., 2000Scènes à Faire upheld as an affirmative defense as photography can be “inevitable, given the shared concept” “Under the … doctrine of scenes a faire, courts will not protect a copyrighted work from infringement if the expression embodied in the work necessarily flows from a commonplace idea; like merger, the rationale is that there should be no monopoly on the underlying unprotectable idea.”
Kaplan v. Stock Market Photo Agency, Inc., 2001“the doctrine of Scènes à Faire/i> holds that sequences of events necessarily resulting from the choice of setting or situation, or ‘incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic,’ are not protectable under the copyright laws.”

“… actionable copying does not occur where a photographer takes a picture of the subject matter depicted in a copyrighted photograph, so long as the second photographer does not copy original aspects of the copyrighted work, such as lighting or placement of the subject.”
Caratzas v. Time Life, Inc., 1992

Nature and Scènes à Faire/h3>

Nature gives us ideas of animals in their natural surroundings: an eagle with talons extended to snatch a mouse; a grizzly bear clutching a salmon between its teeth; a butterfly emerging from its cocoon; a wolf howling at the full moon; a jellyfish swimming through tropical waters. These ideas, first expressed by nature, are the common heritage of humankind, and no artist may use copyright law to prevent others from depicting them.

An artist may, however, protect the original expression he or she contributes to these ideas. An artist may vary the pose, attitude, gesture, muscle structure, facial expression, coat, or texture of animal. An artist may vary the background, lighting, or perspective. Such variations, if original, may earn copyright protection.”

— Richard Satava v. Christopher Lowry, 2003

“Any one may take a photograph of a public building and of the surrounding scene.”
Pagano v. Chas. Beseler Co., 1916

“It of course is correct that the photographer of a building or tree or other pre-existing object has no right to prevent others from photographing the same thing. That is because originality depends upon independent creation, and the photographer did not create that object.”

“to the extent a photograph is original …, copyright protects not what is depicted, but rather how it is depicted.”

“[a photographer’s] copyright does not extend to the natural world he captured.”

“the copyright in [a nature photo] does not protect against subsequent photographs of [the same subject] in the same location.”

“copyright protects the image but does not prevent others from photographing the same object or scene.”

“the timing of the capture of the scene in front of the [building] and its rendition were original, but the copyright in the … photograph does not protect against future attempts to capture a scene in front of the same building.”

Mannion v. Coors Brewing Co., 2005


Also see:

See: Alex Haley (Roots) (SDNY 1978) "these are matters which are indispensable or at least standard in the treatment of a given topic" unprotected idea, standard vignettes of genre.Photography, no protection to photos that are standard or typical of particular genre, see Bill Diodata Photography v. Kate Spade (SDNY 2005). also Penny Gentieu v Getty Images, 2003Applications of Scènes à Faire:Forms (uncopyrightable)“Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like, which are designed for recording information and do not in themselves convey information”CFR sec. 202(1)(c), Blank Accounting Forms (Baker)Recipesunadorned recipes uncopyrightable Publications International -- CA7 1996)expressive embellishments copyrightableMapsNo protection for “facts” or “ideas” location of boundaries,roads, mountains, etc. names of cities, etc. newly coined place names arbitrary symbolsProtection for selection, arrangement, and presentation of elementsPlotsNichols approachHistoryFruits of research not copyrightable: facts. Nash (CA7 1990)Historical theories not copyrightable: ideas. Hoehling (CA2 1980)Verbatim copying illegal unless excused by:merger doctrinefair use doctrine

“[scenes a faire:] These 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, 1978

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