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. Read More