Can You Copyright an Idea? Understanding Scènes à Faire
Every creator wants to protect their work, but it is a common misconception that ideas themselves can be protected. According to copyright law, mere ideas are not protectable, while their expression can be. So, what is the difference?
Ideas vs. Expressions: The Core Distinction
Federal copyright law does not protect ideas nor concepts on their own (17 USC § 102(b)). Instead, the law protects the unique expression of those ideas, including the words, images, structure, or creative arrangement used to bring ideas to life.
It is the combination of elements, not just an element alone, that create originality. For instance, the presence of lawyers or a jury in a courtroom story would not be copyrightable, but distinct dialogue or unique characters in that story could constitute protectable expression.
What is the Scènes à Faire Doctrine?
Even when you create an original piece of work, certain elements are so fundamental to a genre that they cannot be monopolized by a single creator. This is governed by the scènes à faire doctrine—a French phrase meaning “scene that must be done.” This doctrine dictates that elements which are indispensable or customary to a particular topic are not copyrightable.
Think about a classic superhero film. What imagery immediately comes to mind?
- A hero wearing a costume to hide their identity
- A final climactic showdown against a villain
- A character discovering they have secret powers
These iconic elements are the definition of scènes à faire. Because they are essential for establishing the genre’s setting, no single filmmaker can claim exclusive copyright over these concepts. They are the shared building blocks of storytelling.
Scènes à Faire Applies to All Mediums
While the scènes à faire doctrine has its roots in literature and film, it applies equally across a wide range of creative fields, including software, music, art, and architecture. In assessing copyright infringement claims, courts consider the scènes à faire doctrine as a defense, focusing on whether the similarities at issue stem from protectable creative expression rather than standard elements of the medium. The following court cases illustrate the difference between an non-protectable idea and a protectable expression of that idea:
In Incredible Technologies, Inc. v. Virtual Technologies, Inc., the creator of the Golden Tee golf video game sued a competing game, PGA Tour Golf, arguing that it had copied key aspects of its design. Both games allowed players to use a large trackball to swing and displayed common golfing information like wind direction and club selection on-screen. The court concluded that the similarities were non-protectable under the scènes à faire doctrine, as these standard elements were dictated by the sport and the genre rather than original expression. As a result, those common features did not constitute copyright infringement.
Likewise, in Taylor Corp. v. Four Seasons Greetings, LLC, the court considered whether one greeting card infringed another where both cards featured a green Christmas wreath predominantly on the front. Although both cards featured a traditional holiday wreath, the court reasoned that a wreath itself was a common holiday symbol and therefore non-copyrightable under scènes à faire. While copyright law could help protect the creator’s creative expression of the idea, like the foliage arrangement, colors, and textures, the general concept of depicting a wreath on a Christmas card was not protectable.
Finally, in Cain v. Universal Pictures Co., an author alleged that a movie scene copied a scene from his book because both depicted characters seeking shelter in a church during a storm. In each scene, the stranded characters engaged in familiar activities such as praying and playing the piano while waiting for the storm to subside. The court found no infringement, because these similarities were scènes à faire, or ordinary incidents that naturally flow from the situation of people trapped together in a church.
As these cases illustrate, a fact-specific analysis is generally required to determine whether similarities amount to infringement.
How Can Saper Law Assist?
Understanding the difference between ideas and expression is key. If you have questions about your work and how to best protect it using copyright laws, you can book a consultation call with a Saper Law attorney here.
