Understanding our nation’s copyright law is important, but also complex. Re:Create’s glossary of key copyright terms is a resource to help promote informed discussions about copyright policy.

Scenes-a-faire: Scenes-a-faire are scenes or elements in a genre of copyrighted works that are common, customary, or even obligatory in that genre. For example, the “meet cute” scene is ubiquitous in romantic comedies. In copyright law, the term “scenes a faire” refers to the fact that “a copyright owner can’t prove infringement by pointing to features of his work that are found in the defendant’s work as well but that are so rudimentary, commonplace, standard, or unavoidable that they do not serve to distinguish one work within a class of works from another.” Bucklew v. Hawkins, Ash, Baptie & Co., 329 F.3d 923, 929 (7th Cir. 2003). So, although Reality Bites and Before Sunrise both have (excellent) meet cute scenes, that doesn’t mean one movie is an infringement of the other; the meet cute device belongs to us all and is free for any writer to adapt in their own new work.

Why it Matters: Audiences love a mix of creativity and familiarity, and creators love working within (and strategically breaking) the structures of genre. The Scenes-a-faire doctrine helps to ensure that basic building blocks of creativity are free for any creator to reuse. When hedge funds, estates, record labels, and other greedy copyright holders looking for a windfall try to find infringement based on these building blocks, the scenes-a-faire doctrine lets courts kick them to the curb. Songwriter Ed Sheeran recently won (again!) a lawsuit brought against him for his use of a chord progression that also appears in Marvin Gaye’s “Let’s Get It On” (and dozens of other songs, it turns out). Judge Michael Park explained that the infringement claim “fails because it risks granting a monopoly over a combination of two fundamental musical building blocks. The four-chord progression at issue — ubiquitous in pop music — even coupled with a syncopated harmonic rhythm, is too well-explored to meet the originality threshold that copyright law demands.”