The document discusses the legal doctrine of scènes à faire. It originated in a 1942 US court case where similarities in a story were deemed inevitable due to the situation. Scènes à faire refers to elements that are standard or indispensable to the treatment of a given topic, and are thus not protected by copyright. The document examines how the doctrine has been applied and discussed in several copyright infringement cases in both the US and India. It establishes that scènes à faire is a concept that seeks to balance freedom of expression with copyright protections.

1. SUBMITTED BY
Priyanka Chakraborty
15IP61012
LL.B. 2nd SEMESTER
UNDER THE GUIDANCE OF
Prof. S. Matilal
Rajiv Gandhi School Of Intellectual Property Law

2. According to Duhaime’s Law Dictionary, Scènes à
faire is Defined as:
“Elements of an original work that are so trite or
common that they are not captured by copyright.”

3. Scènes à faire are defined as “incidents, characters or
setting which are as a practical matter indispensable, or at
least standard, in the treatment of a given topic,” or
“scenes which necessarily result from identical
situations.”
For example, broomsticks and bubbling cauldrons are not
protectable expression in a story about witches.

4. First evolved in the famous US case of Cain v.
Universal Pictures Co.(47 F. Supp. 1013 (1942))
Judge in this case brought out the French term “scènes à
faire” for the similarities like:-
• Couple taking shelter from a storm in a church,
• Playing piano in the church,
•Praying and suffering from hunger,
which are natural similarities due to situation.

5. He held, “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.”
 The doctrine mandates a copyright owner to prove
that the alleged work is largely similar to his work and is
not merely based on the common theme employed by
both the plaintiff and defendant.
Continued..

6.  In Walker v. Time Life Films, Inc. ( 784 F.2d 44 2d Cir.
1986)):-
• Author Thomas Walker alleged that the movie Fort
Apache, The Bronx, was a infringement on his book Fort
Apache.
• Court decided that the alleged infringement are only
conventional thoughts, and are not protected.

7.  In Joshua Ets-Hokin v. Skyy Spirits Inc (225 F.3d 1068 (9th
Cir. 2000)):-
•A photographic artist, Joshua Ets-Hokin, sued Skyy
vodka when another photographer made commercials
with a considerably comparable appearance to the work
he had done previously.
• It was held that the closeness between the works was
mainly because of the constrained scope of articulation of
the subject matter.

8.  The doctrine of Scène à faire has not been expressly stated in the
Copyright Act in India.
 The doctrine is basically American in origin and the Indian court
s have not deviated much from what is the settled law in the US.
 The Act remains silent even on the idea-expression dichotomy.
 The policy rationale of the doctrine of scènes à faire is that
granting a first comer exclusivity over scènes à faire would
greatly hinder others in the subsequent creation of other
expressive works.

9.  This principle stems from the notion that “ideas are free to
the world”.
 Scènes à faire emerged from the difficulty in managing the
idea-expression dichotomy.
 The doctrines applied as defence to infringement.
 Indian Courts have indeed appreciated and applied the
concept of the idea-expression dichotomy under copyright
law.

10. The doctrine was first discussed in India in the case of RG
Anand v. M/s Deluxe Films (AIR 1978 SC 1613)
 That case dealt with the alleged infringement of the script of a
play, arising from the adaption of the same into a
cinematograph film
 Infringement was not established, the Court held that
copyright can not be acquired over an idea.
 The principles established in this case form part of the law of
the land and holds good even today.

11.  This doctrine was further discussed in the Indian case of NRI
Film Production Associates v. Twentieth Century Fox Film
Corporation (ILR 2004 KAR 4530) wherein it was held that:-
“There can be no copyright in an idea, subject-matter,
themes, plots or historical or legendry facts and violation
of the copyright in such cases is confined to the form,
manner and arrangement and expression of the idea by
the author of the copyrighted work.”

12. The concept of Scènes à faire was passively implemented in
the cases like:-
 Twentieth Century Fox Film Corporation v. Zee Telefilms
Ltd. And Ors(2012(51)PTC465(Del))
 K.R. Ravi Rathinam v. The Director General of Police
(MANU/TN/2783/2014)
 Narendra Mohan Singh and Ors. v. Ketan Mehta and
Ors(2015(64)PTC260(Bom))

13. Form the cases it can be observed that:-
 Infringement in India is normally established through
comparison of the two works from a holistic perspective.
 Similarity in the ideas are considered by the court.
 The law in India prescribes more of a total “look and feel” of
the work involved, as seen from the perspective of the viewer
/ audience.
 Indian courts apply subjective test.

14.  One of the elements necessary to have a work be
copyrightable is “originality.”
 According to this doctrine, certain well known and standard
expressions which reside in the public domain, are excluded
from the realm of copyright.
 In other words, this doctrine says an idea being so common
loses its ability to be protected by copyright law.

15.  The doctrine creates a balance between freedom of expression
and copyright law.
 As popularly described by Prof. Nimmer in his book, “this
doctrine does not limit the subject matter of copyright;
instead, it defines the contours of infringing conduct.”
 Thus, scenes a faire is a concept invoked to promote the very
same public policy that copyright law itself promotes,
namely, the progress and public dissemination of knowledge.

16. Thank You