User:Xan152/Idea–expression distinction

Some courts have recognized that particular ideas can be expressed effectively only by using certain elements or background. There are certain archetypal characters and even types of scenes that are frequently used by authors, due to both necessity to conform to genre conventions or even because the intended audience expects such archetypes. [Zahr K. Said, Grounding the Scènes à Faire Doctrine, 61 Hous. L. Rev. 349, 350 (2023)]. The doctrine that protects the use of these archetypes is called Scènes à faire.[Zahr K. Said, Grounding the Scènes à Faire Doctrine, 61 Hous. L. Rev. 349, 351 (2023)]. Therefore, even the expression in these circumstances is unprotected, or extremely limited to verbatim copying only. This is true in the United Kingdom and most Commonwealth countries.[8]: 54–56

The term "Scenes a faire" means "obligatory scene", a scene in a play that the audience "has been permitted to foresee and to desire from the progress of the action; and such a scene can never be omitted without a consequent dissatisfaction." The term was applied to copyright law in Cain v. Universal Pictures (1942), where the United States District Court for the Southern District of California ruled that "... similarities and incidental details necessary to the environment or setting of an action are not the material of which copyrightable originality consists."[9] The concept has been used by U.S. and U.K. courts.[10] The term is used both in the sense of a scene that follows inevitably from a situation, or a standard scene that is always included in a particular genre of work.[11] Another court said "Under the ... doctrine of scènes à faire, courts will not protect a copyrighted work from infringement if the expression embodied in the work necessarily flows from a commonplace idea."[12] The concept has been extended to computer software, where some aspects may be dictated by the problem to be solved, or may be standard programming techniques.[13]

In the United States it is recognized that certain background elements are universal or at least commonplace in some types of work. For example, in Walker v. Time Life Films, Inc., 784 F.2d 44 (2d Cir. 1986), the Second Circuit said that in a film about cops in the South Bronx it was inevitable that the scenery would include drunks, stripped cars, prostitutes, and rats. In Gates Rubber Co. v. Bando Chemical Industries, Ltd., 9 F.3d 823 (10th Cir. 1993), the Tenth Circuit held that hardware standards and mechanical specifications, software standards and compatibility requirements, computer manufacturer design standards, target industry practices and demands, and computer industry programming practices were unprotectable scènes à faire for computer programs. The principle must have a limit, however, so that something is outside the scènes à faire doctrine for South Bronx movies. Perhaps, cockroaches, gangs, and muggings are also part of the South Bronx scène à faire, but further similarity such as the film having as characters "a slumlord with a heart of gold and a policeman who is a Zen Buddhist and lives in a garage surely goes beyond the South Bronx scène à faire. There must be some expression possible even in a cliche-ridden genre."[This quote needs a citation]