University of Miami Law Review


Recent lawsuits involving the Pirates of the Caribbean film franchise and the Oscar award-winning movie The Shape of Water required courts to wrestle with the application of the decisive scènes à faire doctrine. In doing so, the Ninth Circuit exposed the doctrine’s chief pitfall: the lack of a temporal framework.
The modern scènes à faire doctrine limits the scope of what authors can claim as substantially similar by excluding the standard or stock elements in a given expressive work from copyright protection. Courts will often conclude that a contested element is scènes à faire if it can be demonstrated that certain themes, events, or settings in question belong to a certain genre. To measure what may fall within the scope of unprotected stock, a court focuses on supplementary factors such as the public’s perception of genre conventions, which are culturally dependent and drastically evolve over time.
However, many courts fail to consider “timing” when applying the scènes à faire doctrine. Courts do not necessarily evaluate whether certain aspects or elements within a work were “standard or stock” when the copyrighted material was created. For that reason, an infringing work that becomes popular may use the scènes à faire doctrine as a sword against what was once original singular expression. This inequitable scenario could arise if the scènes à faire doctrine is applied to a work at the commencement of litigation and not at the time of the work’s original drafting.
In reasoning that courts should focus a scènes à faire inquiry from the perspective of the writer at the time that the copyrighted material was written, this Comment explores the claiming systems of patent law with a view toward how they may remedy the scènes à faire doctrine’s shortcomings. To rectify the doctrine’s inadequacies, primarily within the context of screenplays and teleplays, this Comment ultimately proposes an author-drafted copyright registration supplement that details the intricacies of how a genre’s conventions were implemented in a work at the time of creation through plot, character, theme, and setting, among other things.