India: The Relevance Of Doctrine Of Scène À Faire In Copyright Law

Introduction

Scène à faire is a French term which means "scene to be made" or "scene that must be done". It is a concept in Copyright Law which holds that certain works of a creative work are held to be not protectable because they are mandated by or are customary to a particular genre². There are sometimes specific conditions when there is no other way to present an idea but only by using certain fixed elements then those elements are identified by the term "scenes à faire".

In the treatise "Nimmer on Copyright", while dealing with the topic - Action - Substantive aspects, the doctrine of "Scenes a Faire" has been elucidated in the following words:

"Bearing in mind the hoary wisdom of Ecclesiastes that there is nothing new under the sun, certain patterns and situations are bond to recur. The claim ( and variations thereon) is often advanced that "the entire dramatic literature of the world can be reduced to some three dozen situations" Schwartz v. Universal Pictures Co. 85 F. Supp. 270(S.D. Cal. 1949) So, for example, if two scenarios wish to treat the unprotected idea of police life in the South Bronx, for each it will be only natural to depict" drinks, prostitutes, vermin and derelict cars", juxtaposed against hard drinking Irish cops chasing fleeing criminals Judge Leon Yankwich has called such incidents" scenes a faire" i.e., "scenes which 'must' be done." That language is often invoked to immunize from liability similarity of incidents or plot which necessarily follow from a common theme or setting."³ The doctrine essentially tries to encourage continuous creative endeavors and discourage the monopoly contended by copyright owners over common subject matters.

Evolution of the doctrine

This doctrine first evolved in the famous US case of Cain v. Universal Pictures Co.⁴ , wherein Judge Leon Yankwich while passing the order in the favour of the defendants admitted that the scene from the plaintiff's book and the defendant's movie were somewhat similar but it cannot be said to constitute a copyright infringement.

The judge likewise stated that the idea of a couple taking shelter from a storm in a church was regular and as old as going back to the time when the first churches came and thus couldn't be made a subject matter of copyright. He noted that there was some homogeneity between the book and film adaptations, for example, playing piano in the church, praying and suffering from hunger. He brought out the French term "scènes à faire" for these similarities, holding "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 is an indispensable part of the American jurisprudence furthering and fostering the growth and development of individual creativity on the one hand and protecting the rights of a copyright owner on the other hand. 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.

Other important judgments of the US courts on the subject matter are Walker v. Time Life Films, Inc⁵. and Joshua Ets-Hokin v. Skyy Spirits Inc⁶. In Walker v Time Life Films, Inc., writer Thomas Walker documented a claim against one of the production companies, Time- Life Television Films (lawful holder of the script), after the release of the film Fort Apache, The Bronx, asserting that the makers infringed on his book Fort Apache. The United States Court of Appeals for the Second Circuit decided that the alleged infringement are only conventional thoughts, and that the United States copyright law does not protect ideas or thoughts.

Another noteworthy case in United States was Ets- Hokin v. Skyy Spirits, in which scenes à faire was maintained as a certifiable barrier by the United States Court of Appeals for the Ninth Circuit. The case included a business photographic artist, Joshua Ets-Hokin, who sued Skyy vodka when another photographer made commercials with a considerably comparable appearance to the work he had done for them previously. It was held that the closeness between his work and the later works of the photographer was mainly because of the constrained scope of articulation conceivable of the subject matter. Inside the limitations of a photograph shoot for a saleable business item there are only so many ways one may photograph a vodka bottle. In light of this, to constitute copyright infringement, the two photographs would have to be essentially compulsorily indistinguishable.

Position in India

The doctrine of Scène à faire has not been expressly stated in the Copyright Act in India. The courts have discussed this issue following what has already been stated in their US and UK counterparts. The doctrine is basically American in origin and the Indian courts have not deviated much from what is the settled law in the US.

In NRI Film Production Associates v. Twentieth Century Fox Films⁷ , this doctrine was discussed in reference to the famous Supreme Court case of R G Anand v. M/s Delux Films And ors. 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.⁸"

"Also it was stated that where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant's work is nothing but a literal limitation of the copyrighted work with some variations here and there then it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one." ⁹

"Further it was held by the Court that where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises."¹⁰ The doctrine of Scenes a Faire has come into light recently in India when Rajinikanth-starrer 'Lingaa' ran into trouble ahead of its release. K.R. Ravi Rathinam, an aspiring film maker, filed a case in the Madras High Court alleging that the director of 'Lingaa' has lifted his script.

The petitioner has alleged that the script of Lingaa is copied from his yet-to-be-released Tamil film titled 'Mulai Vanam 999' which is based on the life of a British engineer who conceived the idea behind the Mullaperiyar dam and that the petitioner had uploaded the entire story on YouTube on Feb 24, 2013. The respondents have denied his claims stating that a work which has not been published cannot claim copyright infringement.

In a counter-affidavit, Rajinikanth said that there were numerous stories focused around the nationalization of rivers and it would not be right for the applicant to claim copyright over such an issue. For now, Justice M. Venugopal has reserved his order on the petitioner's plea to stay the release of the film.

The case raises important questions relating to the doctrine of scene a fair. It must be thought upon whether a copyright protection can be granted to the aspiring director on the premise that he had made a Youtube video on the story. Also, it has to be noted that a copyright cannot be granted on a theme. To establish that there was copyright infringement it must be shown that it is not merely a theme which has been copied but the whole storyline has been copied. Venugopal has reserved his order on the petitioner's plea to stay the release of the film.

The case raises important questions relating to the doctrine of scene a fair. It must be thought upon whether a copyright protection can be granted to the aspiring director on the premise that he had made a Youtube video on the story. Also, it has to be noted that a copyright cannot be granted on a theme. To establish that there was copyright infringement it must be shown that it is not merely a theme which has been copied but the whole storyline has been copied.

Conclusion

The doctrine of Scène à faire creates a balance between freedom of expression and copyright law. On the one hand it protects the rights of the artist whereas on the other hand it gives another individual a freedom to create on a particular theme which has been used earlier by another artist. This doctrine has been created considering both law and equity in mind.

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."¹¹ In order to best serve the interests of copyright law, in light of the ever increasing statutory protection afforded to copyright owners and the plain language of the copyright statute itself, courts should require plaintiffs to show that their work is protectable despite the doctrine of scenes a faire.

The doctrine of scenes a faire is used by the courts to distinguish copyrightable material from those which cannot be copyrighted. Its purpose is to ensure that what belongs in the public domain stays there, and what deserves protection gets it¹².

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 knowledge13.

Footnotes

1.3rd Year Student, National Law School, Orissa

2.Scène à faire under Copyright Law, Ivan Hoffman, BA JD.

3.Nimmer on Copyright, Vol. III, 1993

4.Cain v. Universal Pictures Co., 47 F.Supp. 1013 (1942).

5.Walker v. Time Life Films, Inc.,784 F.2d 44 (2d Cir. 1986)

6. Joshua Ets-Hokin v. Skyy Spirits Inc., 225 F.3d 1068 (9th Cir. 2000)

7. NRI Film Production Associates v. Twentieth Century Fox Films, ILR 2004 KAR 4530

8. R G Anand v. M/s Delux Films And ors., 1978 AIR 1613

9. Ibid

10. Ibid

11. Nimmer on Copyright, Vol. III, 1993.

12. Feist Publications v. Rural Tel. Service, 499 U.S. 340, 348 (1991)

13. Fin. Control Assocs. v. Equity Builders, Inc., 799 F. Supp. 1103, 1118 (D. Kan. 1992)

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