What’s a Scènes à Faire?

I’ve been a bad guest, although unlike real-life bad guests, at least I haven’t been hogging the cheese dip. Still, I have at least one copyright-related post in me before I go — about the somewhat odd and infrequently invoked exception to copyrightability known as “scènes à faire.”

Traditional copyright law is full of doctrines that appear to make sense from a distance but become extremely difficult on closer examination. I think part of the reason this occurs in copyright is similar to the reason it occurs in constitutional law: there are broad shifts afoot both in the doctrine and in reality that have altered the context in which the underlying law was developed, but for various reasons no one — and particularly not courts — can admit that. So we’re left with doctrines that stick out, puzzle pieces that don’t quite fit.

One of the things that’s been occurring in copyright law is a slow shift from being a common law subject to a statutory one. There has always been a federal Copyright Act, of course, but until recently, courts took it as an invitation to fill in the gaps rather than an unyielding constraint on their actions. Large portions of traditional copyright are either nowhere to be found in the statute or are simply vague codifications of earlier common law. Even within the realm of common law doctrines, copyright shifted over the course of the twentieth century from being an equitable determination of fairness in competition for goods and services — books and plays — to being a legal determination of rights in intangible expression. In the 1930s, as separate equity proceedings were abolished, courts initially kicked a major part of the hard question there to juries, but then almost immediately began reclaiming various determinations for themselves.

Scènes à faire is an example. The scènes à faire doctrine is an exception to copyright protection. It emerged in the 1940s, not coincidentally only a few years after the merger of law and equity in federal courts after the 1938 adoption of the Federal Rules of Civil Procedure. The term itself was first used in an opinion by Judge Leon Yankwich of the Southern District of California — a judge who later played a role in resurrecting the four-factor fair use doctrine that we have today. The plaintiff in Cain v. Universal Pictures was James M. Cain, the noted author of “The Postman Always Rings Twice,” “Double Indemnity,” and other hard-boiled suspense stories. Cain had sold the film rights to one of his stories, “Modern Cinderella,” to Universal, which made a movie out of it, “When Tomorrow Comes.” When the film was released, however, it contained a new scene in which the romantically-involved lead characters sought refuge in a small church during a storm. Cain thought that the scene was too similar to one in another of his stories, “Serenade,” which he had not licensed to Universal.

Judge Yankwich, ruling after a bench trial, disagreed:

[T]here is no similarity. To go into detailed comparison of the two sequences would require epitomizing for this opinion the barbaric, elemental scenes, shocking to any person with religious sensibility, before the altar of the little church in Acapulco, Mexico. I shall not do so. It suffices to say that it is inconceivable that the ordinary theater-goer, who saw the chaste, idyllic church sequence in “When Tomorrow Comes”, of the two lovers who spent the night in the church choir loft, where they sought asylum from the storm, would see in it, in the manner of its development or in the means used to portray the period between their entry into the church to their rescue, any similarity between it and the sensuous scene which Cain portrays in “Serenade.” I can see none.

Aside from the general idea of seeking refuge in a church during a storm, the two scenes were different. Although not completely different. There were several small details the two scenes had in common, “such as the playing of the piano, the prayer, the hunger motive, as it called.” But Judge Yankwich found these

inherent in the situation itself. They are what the French call “scenes a faire”. Once having placed two persons in a church during a big storm, 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. Courts have held repeatedly that such similarities and incidental details necessary to the environment or setting of an action are not the material of which copyrightable originality consists.

Another famous example of scènes à faire is Hoehling v. Universal City Studios, involving the movie “The Hindenburg.” (Aside: why are so many of these suits against Universal? There’s also Nichols v. Universal Pictures, the famous “Abie’s Irish Rose” case.) In Hoehling, the author claimed similarity because both works contained details such as “a scene in a German beer hall, in which the airship’s crew engages in revelry prior to the voyage, . . . common German greetings of the period, such as ‘Heil Hitler,’ or songs, such as the German National anthem.” The Second Circuit held such details to be “merely scenes a faire, that is, ‘incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.’ Because it is virtually impossible to write about a particular historical era or fictional theme without employing certain ‘stock’ or standard literary devices, we have held that scenes a faire are not copyrightable as a matter of law.”

Jessica Litman, in her path-breaking article The Public Domain in 1990, noted toward the end of that article the oddity of these sorts of explanations for the scènes à faire doctrine. (Another puzzle: despite Litman’s calling attention to this particular issue, few have followed up on her discussion of it in the twenty-odd years since.) As Litman noted, the explanation given by Judge Yankwich above — that what scènes à faire excludes from copyright protection is “incidental details necessary to the environment or setting of an action” — does not appear to actually describe the cases in which it appears. There’s nothing about two lovers seeking shelter from a storm that says it has to be a small church. There’s no requirement that movies set in 1930s Germany have a beer-hall scene. “Indiana Jones and the Last Crusade,” for example, does not, although it does have a dirigible. Thinking of scènes à faire in that manner seems to confuse that doctrine with the doctrine of merger, which is the doctrine that expression that is the only way to convey unprotected material — such as an idea — can’t be protected, lest the unprotected material de facto receive copyright protection as well. Scènes à faire is sometimes also described as the doctrine that genre conventions can’t receive protection — you can’t copyright the scene in a turn-of-the-century melodrama where the villain ties the heroine to the railroad tracks. (But see Daly v. Webster, 556 F. 483 (2d Cir. 1892)!) But genre conventions don’t need an exclusion from copyrightability — if it’s conventional, then it’s not original to the plaintiff (barring some sort of cosmic coincidence), and thus isn’t protected under the plaintiff’s copyright anyway.

Litman argued that instead what unites the scènes à faire material is not that it is necessary details, or conventional details, but incidental details, trivial details. The idea is that it would be too difficult to determine in the average case whether the second author really had appropriated expression from the first, where the alleged similarities amount to various small incidental details or settings or scenes in common. Scènes à faire is a limit on probative similarity — we can’t conclude that the second author copied the first just because her magic book, discovered by a nerdy teenager in a library, also happened to be red. There’s only so many colors, and red seems like a choice that could have been made without any reference to plaintiff’s work at all, even if there is no good way of proving that. Setting a scene in 1930s Germany in a beer hall and having a bunch of Nazis say “Sieg heil!” to each other is also at least as plausibly explained as coincidence as appropriation. More significant, or more numerous, similarities should be necessary to establish copying.

But what if it could be established that, in fact, the makers of “When Tomorrow Comes” had read “Serenade” and thought that a church-in-a-storm scene would be a great addition to the film? That is, what if the issue was about protection rather than copying? There is language in the opinions that suggests that scènes à faire elements can be freely taken from a work, even if that work is the first to come up with them; that is, they are unprotected not simply as a line-drawing matter for proof of copying, or as a proxy for originality, but because they do not cross the line from unprotected to protected material. Scènes à faire viewed that way is a materiality threshold, performing some of the same work as the substantial similarity doctrine. The author’s expression is protected by copyright, but some expression is more important than others. Some expression identifies a particular story that is the author’s own, and other expression constitutes details or frameworks that others are free to take and adapt — frameworks that seem like a natural exploration of the course of the narrative, once they occur to you. Copyright has no protection for catchy details or neat plot devices.

This sort of work in separating out the infringement of protected expression from copying of inessential detail was something that, for a time, was performed by the substantial similarity doctrine as well. But in the 1960s, about twenty years after the adoption of the scènes à faire doctrine, substantial similarity suddenly shifted from a materiality threshold to a recognizability threshold. Recognizability is certainly an easier test to understand and to instruct a jury to find; but recognizability sweeps in the trivial and the fleeting along with purposeful duplication of the aesthetic core. Scènes à faire seems like an odd doctrine now because the attempt to draw lines between important and unimportant copying has otherwise largely been abandoned.

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