SCENES A FAIRE IN MUSIC: HOW AN OLD DEFENSE IS MATURING, AND HOW IT CAN BE IMPROVED.

• Author: Edwards, Torrean

INTRODUCTION I. COPYRIGHT INFRINGEMENT IN MUSIC IS OFTEN A PARADOXICAL CHALLENGE, BUT IF PROPERLY APPLIED, THE SCENES A FAIRE DOCTRINE CAN BE A RESOURCE TO COURTS II. SCENES A FAIRE A. Purpose as Originally Intended B. Application in a Changing Copyright Landscape C. The Scenes a Faire Defense, When Properly Constructed, Will Color the Copyright Test the Court Has Become So Reliant On. CONCLUSION INTRODUCTION

Scenes a faire, in music, is a defendant's tool to delineate for a court what some of the protectable and non-protectable elements of a work may be, and to defeat the standard substantial similarity test. The substantial similarity test over the preceding decades has become the dominant test used in evaluating copyright infringement disputes. To understand what the proper application of a scenes a faire defense should be, we must view what is actually in dispute in a copyright case, the process the court uses in evaluating the copyrighted material, and how scenes a faire has been applied in recent cases to find or distinguish infringement.

Most copyright infringement cases do not involve direct copying and arise, instead, where other similarities exist; so the tools used by courts must evolve to distinguish the nonliteral infringement. Jollie v. Jacques, one of the earliest cases of copyright infringement in the U.S., established the standard for "substantial similarity" when explicit copying is not found. (1) Since that time, other cases have added color to how a jury and court may determine the presence of similarity, and whether that similarity amounts to infringement. As this Comment will discuss, how scenes a faire has grown as a tool employed by the defense to help a court separate protectable from non-protectable elements, even in the presence of substantial similarity. (2) Case law, (including court settlements), show that the present standard, so heavily reliant on the subjective determinations of laypeople, leads to confounding inconsistencies. (3) To modernize and operationalize the defense for modern use in music, the focus must turn to developing a test that is more rote and functional, which better distinguishes musical similarities that are and are not protectable.

First, this Comment will provide background on the test for copyright infringement used by the Fourth, Eighth, and Ninth Circuits. Second, the Comment will address what scenes a faire is and how recent cases have treated scenes a faire in music. Third and finally, the Comment will offer a suggestion as to a proper scenes a faire determination and analyze how scenes a faire should be applied.

1. COPYRIGHT INFRINGEMENT IN MUSIC IS OFTEN A PARADOXICAL CHALLENGE, BUT IF PROPERLY APPLIED, THE SCENES A FAIRE DOCTRINE CAN BE A RESOURCE TO COURTS

   Copyright infringement is the unlicensed or unpermitted use of a copyrighted work. (4) Copyright infringement has two elements: the possession of a copyright and actual copying the protected expression. Copying is shown through actual copying or substantial similarity. In the Ninth Circuit, in the absence of direct evidence of copying, a plaintiff must show access and substantial similarity. (5)

   Since direct evidence of copying is not always available, a plaintiff may have to establish copying by proving (1) that the defendant had access to the plaintiff's work and (2) that the two works are substantially similar. (6) For the first element, access is decided based upon whether the trier of fact believes that the artist heard, or was likely to have heard, the other party's work. (7) Access to the copyrighted work may be shown by demonstrating that the defendant had actual knowledge of the plaintiff's work, had a "reasonable opportunity" to access the plaintiff's work, or it can be proved through direct admission by the artist. (8) In short, you cannot copy if you never knew the piece existed.

   The second element of the Ninth Circuit test, substantial similarity, is determined based upon a two-part test. (9) The "extrinsic test" is an "objective comparison of specific expressive elements" and it focuses on the "articulable similarities" between the two works. (10) The second element is an intrinsic test, which determines whether or not a song's copyrightable elements "seem" to be similar. (11) Furthermore, an inverse ratio exists where the greater the access the less evidence is required of similarity. (12) This second element provides the most common area of frustration in modern case law and is the costliest when frustrated because of the deference to lower court judges and juries.

   However, even when there is obvious access and the court finds the song's elements to be substantially similar, affirmative defenses and limitations on copyrighted material are available, such as fair use and scenes a faire. Copyright protection is limited to unique expressions of an idea, not an idea itself. (13) No singular person can have ownership over that idea and deference should be given to new works, understanding that inspiration is not necessarily infringement. (14) Furthermore, limitations exist that preclude the protection of certain material elements of a copyrighted work. One of those limitations is the doctrine of scenes a faire.

2. SCENES A FAIRE

   The confusing term "scenes a faire," literally translated from the French means "scenes to do." Originally a theater term that meant "the most important scene in a play or opera, made inevitable by the action which leads up to it." (15)

   In legal doctrine, however, scenes a faire has become the idea that new expressive work may come from a common idea, or motive (motif), that is germane to the genre. (16) The common idea is integral to a given topic or theme and must be used in the treatment of the topic. (17) Scenes a faire are pieces of the work that flow from the theme rather than a creator's own mind. (18) To determine whether a portion of a song is scenes a faire the court must explore whether "'motive' similarities that plaintiffs attribute to copying could actually be explained by the common-place presence of the same or similar 'motives' within the relevant field." (19) This remains true even if the plaintiff was first because the general aspects of plot, or theme, or sound have become public works. (20)

   1. Purpose as Originally Intended

      The doctrine was intended to limit copyright protection to certain expressions, which may have been new, but were not the result of the author's creativity; and instead done because of the topic itself and the "underlying unprotectable idea" should not be owned. (21)

      The scenes a faire doctrine is an integral part of the copyright infringement analysis. Its application can help foster a new age of American creativity, or if misused, stifle it. While traditionally reserved for literature, stage works, and later film, it has also been applied with success to technological work, such as code and design elements. But even more recently we have seen the doctrine applied to music. This application raises several questions: how does one define a scenes a faire in music? Is scenes a faire limited to a melody or lyrics?

      Before answering those questions, a modern definition of scenes a faire must be created. Early...