Scène à faire (French for "scene to be made" or "scene that must be done"; plural: scènes à faire) is a scene in a book or film which is almost obligatory for a genre of its type. In the U.S. it also refers to a principle in copyright law in which certain elements of a creative work are held to be not protected when they are mandated by or customary to the genre.
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Examples in different genres
For example, a spy novel is expected to contain elements such as numbered Swiss bank accounts, a femme fatale, and various spy gadgets hidden in wristwatches, belts, shoes, and other personal effects. The United States Court of Appeals for the Second Circuit interpreted the scènes à faire doctrine expansively to hold that a motion picture about the South Bronx would need to feature drunks, prostitutes, vermin, and derelict cars to be perceived as realistic, and therefore a later film that duplicated these features of an earlier film did not infringe. These elements are not protected by copyright, though specific sequences and compositions of them can be.
As another example, in computer programming, it is often customary to list variables at the beginning of the source code of a program. In some programming languages, it is required to also declare the type of variable at the same time. Depending on the function of a program, certain types of variables are to be expected. If a program deals with files, variable types that deal with files are often listed and declared. As a result, variable declarations are generally not considered protected elements of a program. The United States Court of Appeals for the Second Circuit made this part of the analysis for infringement of non-literal elements of computer code in Computer Associates International, Inc. v. Altai, Inc. 982 F.2d 693. In that case, the court added it into its Abstraction-Filtration-Comparison test.
Policy
The policy rationale of the doctrine of scènes à faire is that granting a first comer exclusivity over scènes à faire would greatly hinder others in the subsequent creation of other expressive works. That would be against the constitutionally mandated policy of the copyright law to promote progress in the creation of works, and it would be an impediment to the public's enjoyment of such further creative expressions. By the same token, little benefit to society would flow from grants of copyright exclusivity over scènes à faire.
In a business and computer program context, the doctrine of scènes à faire is interpreted to apply to the practices and demands of the businesses and industries that the given computer program serves. Hence, the concepts of idea vs. expression (merger doctrine) and scènes à faire relate directly to promoting availability of business functionality.
In CMM Cable Rep., Inc. v. Ocean Coast Properties, Inc., 97 F.3d 1504 (1st Cir. 1996). the court compared the merger and scènes à faire doctrines. The court said that the two doctrines were similar in policy, in that they both sought to prevent monopolization of ideas. However, merger applied when idea and expression were inseparable, but scènes à faire applied despite separability where an external common setting caused use of common elements and thus similarity of expression.
Limits of doctrine
The doctrine must be a matter of degree—that is, operate on a continuum. Consider the Second Circuit's ruling that the scène à faire for a movie about the South Bronx would need to feature drunks, prostitutes, vermin (rats, in the accused and copyrighted works), and derelict cars. 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."