India: The Relevance Of Doctrine Of Scène À Faire In Copyright Law

Last Updated: 8 January 2015
Article by Vaibhavi Pandey

Most Read Contributor in India, September 2016


Scène à faire is a French term which means "scene to be made" or "scene that must be done". It is a concept in Copyright Law which holds that certain works of a creative work are held to be not protectable because they are mandated by or are customary to a particular genre2. There are sometimes specific conditions when there is no other way to present an idea but only by using certain fixed elements then those elements are identified by the term "scenes à faire".

In the treatise "Nimmer on Copyright", while dealing with the topic - Action - Substantive aspects, the doctrine of "Scenes a Faire" has been elucidated in the following words:

"Bearing in mind the hoary wisdom of Ecclesiastes that there is nothing new under the sun, certain patterns and situations are bond to recur. The claim ( and variations thereon) is often advanced that "the entire dramatic literature of the world can be reduced to some three dozen situations" Schwartz v. Universal Pictures Co. 85 F. Supp. 270(S.D. Cal. 1949) So, for example, if two scenarios wish to treat the unprotected idea of police life in the South Bronx, for each it will be only natural to depict" drinks, prostitutes, vermin and derelict cars", juxtaposed against hard drinking Irish cops chasing fleeing criminals Judge Leon Yankwich has called such incidents" scenes a faire" i.e., "scenes which 'must' be done." That language is often invoked to immunize from liability similarity of incidents or plot which necessarily follow from a common theme or setting."3 The doctrine essentially tries to encourage continuous creative endeavors and discourage the monopoly contended by copyright owners over common subject matters.

Evolution of the doctrine

This doctrine first evolved in the famous US case of Cain v. Universal Pictures Co.4 , wherein Judge Leon Yankwich while passing the order in the favour of the defendants admitted that the scene from the plaintiff's book and the defendant's movie were somewhat similar but it cannot be said to constitute a copyright infringement.

The judge likewise stated that the idea of a couple taking shelter from a storm in a church was regular and as old as going back to the time when the first churches came and thus couldn't be made a subject matter of copyright. He noted that there was some homogeneity between the book and film adaptations, for example, playing piano in the church, praying and suffering from hunger. He brought out the French term "scènes à faire" for these similarities, holding "it was inevitable that incidents like these and others which are, necessarily, associated with such a situation should force themselves upon the writer in developing the theme." The doctrine is an indispensable part of the American jurisprudence furthering and fostering the growth and development of individual creativity on the one hand and protecting the rights of a copyright owner on the other hand. The doctrine mandates a copyright owner to prove that the alleged work is largely similar to his work and is not merely based on the common theme employed by both the plaintiff and defendant.

Other important judgments of the US courts on the subject matter are Walker v. Time Life Films, Inc5. and Joshua Ets-Hokin v. Skyy Spirits Inc6. In Walker v Time Life Films, Inc., writer Thomas Walker documented a claim against one of the production companies, Time- Life Television Films (lawful holder of the script), after the release of the film Fort Apache, The Bronx, asserting that the makers infringed on his book Fort Apache. The United States Court of Appeals for the Second Circuit decided that the alleged infringement are only conventional thoughts, and that the United States copyright law does not protect ideas or thoughts.

Another noteworthy case in United States was Ets- Hokin v. Skyy Spirits, in which scenes à faire was maintained as a certifiable barrier by the United States Court of Appeals for the Ninth Circuit. The case included a business photographic artist, Joshua Ets-Hokin, who sued Skyy vodka when another photographer made commercials with a considerably comparable appearance to the work he had done for them previously. It was held that the closeness between his work and the later works of the photographer was mainly because of the constrained scope of articulation conceivable of the subject matter. Inside the limitations of a photograph shoot for a saleable business item there are only so many ways one may photograph a vodka bottle. In light of this, to constitute copyright infringement, the two photographs would have to be essentially compulsorily indistinguishable.

Position in India

The doctrine of Scène à faire has not been expressly stated in the Copyright Act in India. The courts have discussed this issue following what has already been stated in their US and UK counterparts. The doctrine is basically American in origin and the Indian courts have not deviated much from what is the settled law in the US.

In NRI Film Production Associates v. Twentieth Century Fox Films7 , this doctrine was discussed in reference to the famous Supreme Court case of R G Anand v. M/s Delux Films And ors. wherein it was held that "there can be no copyright in an idea, subject-matter, themes, plots or historical or legendry facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.8"

"Also it was stated that where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant's work is nothing but a literal limitation of the copyrighted work with some variations here and there then it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one." 9

"Further it was held by the Court that where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises."10 The doctrine of Scenes a Faire has come into light recently in India when Rajinikanth-starrer 'Lingaa' ran into trouble ahead of its release. K.R. Ravi Rathinam, an aspiring film maker, filed a case in the Madras High Court alleging that the director of 'Lingaa' has lifted his script.

The petitioner has alleged that the script of Lingaa is copied from his yet-to-be-released Tamil film titled 'Mulai Vanam 999' which is based on the life of a British engineer who conceived the idea behind the Mullaperiyar dam and that the petitioner had uploaded the entire story on YouTube on Feb 24, 2013. The respondents have denied his claims stating that a work which has not been published cannot claim copyright infringement.

In a counter-affidavit, Rajinikanth said that there were numerous stories focused around the nationalization of rivers and it would not be right for the applicant to claim copyright over such an issue. For now, Justice M. Venugopal has reserved his order on the petitioner's plea to stay the release of the film.

The case raises important questions relating to the doctrine of scene a fair. It must be thought upon whether a copyright protection can be granted to the aspiring director on the premise that he had made a Youtube video on the story. Also, it has to be noted that a copyright cannot be granted on a theme. To establish that there was copyright infringement it must be shown that it is not merely a theme which has been copied but the whole storyline has been copied. Venugopal has reserved his order on the petitioner's plea to stay the release of the film.

The case raises important questions relating to the doctrine of scene a fair. It must be thought upon whether a copyright protection can be granted to the aspiring director on the premise that he had made a Youtube video on the story. Also, it has to be noted that a copyright cannot be granted on a theme. To establish that there was copyright infringement it must be shown that it is not merely a theme which has been copied but the whole storyline has been copied.


The doctrine of Scène à faire creates a balance between freedom of expression and copyright law. On the one hand it protects the rights of the artist whereas on the other hand it gives another individual a freedom to create on a particular theme which has been used earlier by another artist. This doctrine has been created considering both law and equity in mind.

As popularly described by Prof. Nimmer in his book, "this doctrine does not limit the subject matter of copyright; instead, it defines the contours of infringing conduct."11 In order to best serve the interests of copyright law, in light of the ever increasing statutory protection afforded to copyright owners and the plain language of the copyright statute itself, courts should require plaintiffs to show that their work is protectable despite the doctrine of scenes a faire.

The doctrine of scenes a faire is used by the courts to distinguish copyrightable material from those which cannot be copyrighted. Its purpose is to ensure that what belongs in the public domain stays there, and what deserves protection gets it12.

Thus, scenes a faire is a concept invoked to promote the very same public policy that copyright law itself promotes, namely, the progress and public dissemination of knowledge13.


1.3rd Year Student, National Law School, Orissa

2.Scène à faire under Copyright Law, Ivan Hoffman, BA JD.

3.Nimmer on Copyright, Vol. III, 1993

4.Cain v. Universal Pictures Co., 47 F.Supp. 1013 (1942).

5.Walker v. Time Life Films, Inc.,784 F.2d 44 (2d Cir. 1986)

6. Joshua Ets-Hokin v. Skyy Spirits Inc., 225 F.3d 1068 (9th Cir. 2000)

7. NRI Film Production Associates v. Twentieth Century Fox Films, ILR 2004 KAR 4530

8. R G Anand v. M/s Delux Films And ors., 1978 AIR 1613

9. Ibid

10. Ibid

11. Nimmer on Copyright, Vol. III, 1993.

12. Feist Publications v. Rural Tel. Service, 499 U.S. 340, 348 (1991)

13. Fin. Control Assocs. v. Equity Builders, Inc., 799 F. Supp. 1103, 1118 (D. Kan. 1992)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.