Business and Technology Law

“Freedom is not given. It is our right at birth. But then there are moments in History where it must be taken.” – President John Quincy Adams from the movie Amistad, DreamWorks SKG Studios.

In 1997, author Barbara Chase-Riboud filed a $10 million lawsuit and injunction against director Steven Spielberg and his Hollywood production company, DreamWorks SKG (“DreamWorks”), for copyright infringement. See Chase-Riboud v. Dreamworks Inc., 987 F.Supp. 1222 (C.D. Cal. 1997). The film, Amistad, is based upon a historical event. In 1839, Singe-Pieh staged a slave rebellion on board the Spanish slave ship, La Amistad. The ship was eventually intercepted by the United States Navy and towed the ship to New Haven, Connecticut, where the slaves stood trial. President John Quincy Adams argued on behalf of the salves before the United States Supreme Court.

Steven Spielberg claims his movie was based upon the nonfiction book, “Black Mutiny” by William Owens, to which Debbie Allen bought the rights. The screen play was written by David Franzoi and Academy Award winner Steve Zaillan. Ms. Chase-Riboud claims that the movie was based upon her novel, “Echo of the Lions” published by William Morrow in 1989. Chase-Riboud further claims the film contains far too many similarities to her novel which she previously submitted to Spielberg’s Amblin Entertainment. Defendant DreamWorks argued that the suit was without merit because the film was based upon historical fact and is therefore not subject to copyright protection.

The issue of copyright protection for creative works based upon history is becoming a concern for the motion picture industry. This combination of history and Hollywood embellishment is commonly referred to as “historical fiction”. For the purpose of this discussion, historical fiction is defined as an original creative work based upon historical fact. At what point does the writer create a protectable expression from historical fact? Asked another way, “At what point does copyright law protect the expression of an idea without allowing monopolistic ownership of the factual historical event itself?” This is not intended to be an exhaustive analysis of substantial similarity concerning competing works, but rather as a focused discussion on the judicial application of the doctrine of scenes à faire.

The United States Constitution expressly grants Congress the power to grant copyright protection “to promote the progress of science and useful arts.” “The Congress shall have power… to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the executive Right to their respective Writings and Discoveries.” The primary purpose of copyright law is to stimulate creativity for the public good. However, copyright law does not protect an idea, but rather the original expression of the idea. This doctrine appeases two opposing rationales: (1) it compensates individuals for their creative labor; (2) yet provides society the benefit of subsequent individual interpretation regarding the same subject matter.

The scenes à faire doctrine states that if the copyright holder’s expression is a scene that naturally results from a common idea, then subsequent expressions of the same scene does not constitute copyright infringement. The scenes à faire doctrine is a judicial creation of law and equity. This doctrine reasons that there are some scenes that must be included in a given context because identical situations call for identical scenes. Additionally, there are certain stock scenes, or clichés, which naturally develop from a genre of a given idea.

American jurisprudence was introduced to the doctrine of scenes à faire in the landmark case, Cain v. Universal Pictures Co., Inc., 47 F.Supp. 1013 (S.D. Cal. 1942). In Cain, the author filed a copyright infringement action claiming that the motion picture, “When Tomorrow Comes”, copied a church sequence described in his novel “Serenade.” The church sequence involved two lovers who spent the night in a choir loft in order to seek shelter from a storm. The plaintiff cited similar events such as playing the piano, prayer and hunger. The United States District Court for the Southern District of California held that similarities and incidental details which are necessary to the environment or setting of an action are not material of which copyrightable originality conflicts. Therefore, although scenes of a creative work may be substantially similar, there are some stock scenes that do not receive copyright protection. For example, a western movie will almost always involve cowboys wearing a six shooter, riding a horse and walking into a town saloon. Similarly, the western saloon will almost always have swinging doors, a bar with a large mirror and whiskey. “All of those elements are necessary to telling any story set in western times basically. As so the court filters out those scenes à faire, things that are required to the telling of that story.”

“Plots and themes are what ideas are made of, but dialogue, mood, pace and sequence are the very essence of expression.” Jason v. Fonda, 698 F.2d 966 (9th Cir. 1982). Hence it is this essence of expression that may receive copyright protection. However, historical facts may not receive copyright protection because they are not the original works of the author. The doctrine of scenes à faire ensures that history belongs to the public domain. “The distinction is one between creation and discovery: the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence.” Feist Publications, Inc. v. Rural Telephone Service, 499 U.S. 340, 111 S.CT. 1282, 113 L.Ed.2d 358 (1991).

In the case of Amistad, Federal District Judge Collins defined scenes à faire as “incidents, characters or setting which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.” Chase-Riboud v. Dreamworks Inc., 987 F.Supp. 1222, 1227 C.D. Cal. 1997). Federal District Judge Collins further noted in his opinion that, “scenes à faire and factual material must be filtered out of any analysis of substantial similarity.” The Court ultimately found DreamWorks scenes à faire affirmative defense unpersuasive because DreamWorks used the same characters as Ms. Chase-Riboud did in her novel that were not “’indispensable, or at least standard, in the treatment of a given topic.’” Id. at 1227. But the Court went on to conclude that the characters at issue were not “especially distinctive” to warrant copyright protection, either. Id. at 1228. Ms. Chase-Riboud’s Motion for Preliminary Injunction was denied for her failure to prove plaintiff’s burden of substantial similarity.

“The scope of copyright protection in historical accounts is narrow indeed, embracing no more than the author’s original expression of particular facts and theories already in the public domain.” Id. at 1226 (citing Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 974 (2d Cir. 1980). The doctrine of scenes à faire leads us to substantiate the proverbial maxim, “there is no such thing as an original idea”… but there is such a thing as an original thought.