Copyright Protection and the Scenes-a-Faire Doctrine

Let’s say that you create a work that is protectable by copyright. Perhaps a book or a movie, something creative. Now that it’s copyrighted, it’s yours, and nobody else can copy it. Or can they?

The answer is generally no, they cannot copy it because you own all the creative elements to that copyrighted work. Note that we said all the “creative elements.” That’s because in many kinds of creative works, there are parts of that creative work that aren’t unique or creative. In fact they’re quite commonplace.

And that means that other people can use them the same way you can. That’s called the scenes-a-faire doctrine.

What the Doctrine Protects

The doctrine seems obscure, but you already know it from your everyday experience.

How many times have you seen love stories or romantic comedies take place in coffee shops? Or horror movies take place in abandoned cabins somewhere in the woods? These seem like overused tropes, but how is it that so many different creative works can use these elements, without infringing on each other’s copyrights?

The answer is the scenes-a-faire doctrine, which says that even in a protected, copyrighted work, there are parts of that work that may be commonplace and thus, which can be used by others. They don’t contribute to the uniqueness of the protected material, and are too generic to be protected.

Examples of Scenes-a-Faire

As an example, DC Comics could (and does) copyright the name Batman, his suit, his back story, and the city he operates in, called Gotham. Those are unique and creative and if you want to create your own hero, you’d better not copy those names or elements.

But DC cannot copyright and protect a gritty, crime ridden city overrun by gangsters and villains. Or just the idea of a super hero in a costume who fights crime.

Anybody can use those elements for their story. Almost any super hero story that takes place here on earth, would have to have some part of it that happens in a city, so neither DC nor anybody else can claim exclusively for themselves, a hardscrabble city where the super-rich and very poor collide with crime on the streets, or the idea of a hero that fights criminals.

As another example, a deadly alien on a space ship is too generic to be copyrighted. Anybody can, and numerous people have, used that setting and that storyline. But if your alien is black with a long head and intubates its victims, now you are infringing on the copyrighted material of the well known Alien franchise.

Using it as a Defense

This doctrine comes into play in infringement cases, and can be used as a defense; if someone feels that the only part of their story which is similar to a previously copyrighted work is generic, they can rely on the doctrine.

Of course, whether or not the doctrine applies, and will protect you from infringement, is determined on a case by case basis, and is very unique to the circumstances. Exactly what part of a copyrighted story is being used by a potential infringer, is crucial to the analysis.

Protect your creations. Ask us about your infringement or copyright case. Call our West Palm Beach commercial litigation attorneys at Pike & Lustig for help.

Source:

copyrightalliance.org/copyrights-fictional-tropes/