Washington Law Review


Courts are increasingly invoking copyright law’s “scenes a faire” doctrine, which precludes infringement liability for copying typical or standard elements in a copyrighted work. But judges and commentators only cursorily discuss why certain elements constitute scenes a faire. Alternatively, they characterize the doctrine as merely an extension of other copyrightability doctrines. The result is doctrinal inconsistency in how scenes a faire applies and theoretical disagreement about why the doctrine exists.

This Article advances a “public reliance interests” theory of scenes a faire that provides descriptive clarity to the doctrine and highlights its underexplored importance to copyright law writ large. Drawing from progressive approaches to property and cultural-democratic theories of copyright, the public reliance interests theory describes scenes a faire as precluding copyright protection when consumptive and discursive activities of public users make certain elements particularly popular and widely distributed. The public then has reliance interests in being able to utilize these particular elements in future creative works without fearing overreach by copyright holders. The scenes a faire doctrine protects these reliance interests by demarcating these elements as outside the scope of copyright protection.

In an era of rapid content creation, distribution, and ever-expanding rightsholder claims, a theoretically reinvigorated scenes a faire doctrine offers promise for a more democratic copyright law. The public reliance interests theory clarifies scenes a faire’s operation as an internal counterbalance to copyright’s expansions that recognizes and gives force to the public’s personal and discursive consumption of copyrighted works. Such a clarification has wide-ranging consequences for contested debates about copyright law’s purpose, structure, and normative orientation.

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