Litigating Scènes à Faire

Abstract

Scenes a faire: What is it? Generally speaking, it’s when certain things are so commonplace, and so naturally associated with the treatment of the subject, that everyone needs to be able to use them in order to also write, or talk, or deal with that subject. What have courts found to be scenes a faire? Lots of different things, in lots of different contexts. Some are easy to picture: If you’re going to have an underwater world, having sand dollars as money, oyster shells as plates, and things like that—that makes some sense. Aquaman rides a seahorse; other underwater people might ride seahorses. Or the idea that superheroes wear capes and masks— you can understand that that’s something common to the genre that everyone should be free to use. Similarly, if you are setting something in World War II, you might have a German beer hall. If you are setting something in a small town in the American South, you might have a country music bar with a gritty atmosphere and music playing from a jukebox; it’s going to be playing a sad song, and then dancing will ensue. More things may happen after that, but the setting could have common elements.