"Scènes à Faire" in Shakespearian Screenplays

(Summer in Seattle is gorgeous! I spent time on plein air paintings and enjoyed the beauty of nature. Above is one of my recent pastel paintings.)

About the author: Irene Rajagopal is an international copyright lawyer with  legal experience in U.S. and China. Irene is the founder of PAPER Law Office and licensed to practice law in Washington State. Irene helps clients to complete the copyright registration at U.S. Copyright Office and review the licensing agreements. Her office is located in Bellevue, Washington State. She can be reached at irene@irenerajlaw.com. Please feel free to click here to visit the website of PAPER Law Office PLLC (http://www.paperlawoffice.com). 

by Irene Rajagopal, copyright attorney at PAPER Law Office PLLC

To make a great film you need three things – the script, the script and the script.”

                     -- Alfred Hitchcock[1]

Screenplays are the souls of movies, formed by plots, themes, dialogues, mood, settings, pace, characters, events. Copyright infringement claims may happen when two screenplays look so similar. 

If two screenplays share a common theme, say, a drama about William Shakespeare, will a court support a copyright infringement claim? The Ninth Circuit Court decision in Heusey v. Emmerich may give you some clues -- the details that flow naturally from an idea will not be protected. 

In Heusey v. Emmerich, the plaintiff Kenneth Heusey, an independent screen writer, wrote a screenplay titled “Not Without Justice”, based on historical events of William Shakespeare in the Queen Elizabethan era. After reading the plaintiff’s screenplay, a production company Centropolis offered to buy the rights from the plaintiff, but two parties could not reach a price. The production company Centropolis then bought another screenplay titled “Soul of the Age” and developed a 2011 film “Anonymous”. The plaintiff Kenneth Heusey brought a lawsuit.

Both screenplays, “Not Without Justice” and “Soul of the Age” (the screenplay of “Anonymous”), share a common concept: Shakespeare was a masquerader of the masterpieces -- he did not pen those famous lines, but just accidently took the credit during a political fight between Essex and King James of Scotland for the succession of heirless Queen Elizabeth’s throne.

When deciding the similarity of two works, it is not enough to ask a lay person to look and feel the overall feeling of the works. Instead, the Ninth Circuit adopts two-part test -- an extrinsic test and an intrinsic test. A court will conduct an extrinsic test as a matter of law and a lay person will decide the similarity of expression in an intrinsic test. For purpose of an extrinsic test, a court must filter out any “unprotectable elements”, [2] and compare the "protectable elements" in the plaintiff's work and the defendant's work. This means when two pieces of works look similar overall, if the similarity is based on the unprotectable elements, for example, historical facts, the court shall filter out these elements and exam what remains. 

In Heusey v. Emmerich,  the district court relied on the “scènes à faire doctrine”. The scènes à faire doctrine “applies to any detail or expression that flows naturally from an idea, regardless of its significance to the work itself”. [3]  These details and expression are not protected under copyright law, so another author could use the same or similar details and expressions. For example, if the theme of a screenplay is about the startup companies in Silicon Valley, characters like engineers are “scènes à faire”.  

The mood and settings of two screenplays, despite the similarity, are “scènes à faire”. The district court held that the moods (wars, political struggles, conspiracies, betrayals, revenge, and love affairs) are “common among Shakespearian works…as well as works in general set in the Elizabethan era”. Accordingly, “the moods flowing from these stories are examples of both unprotectable scènes à faire and merger”.[4]

The district court further found the settings such as the Queen’s palace, the Tower of London, Essex House, and the Globe Theatre, “naturally flow from premises involving Queen Elizabeth and Shakespeare”, so they “cannot support a finding of substantial similarity”.[5]

The district court also compared the plots, themes, dialogues, characters, sequence of events. Since both screenplays are historical based, the district court filtered out the historical facts and scènes à faire, and demand a heightened standard for the similarity in historical characters. It led to a conclusion that “two works are not substantially similar as a matter of law”. [6]

The Ninth Circuit affirmed the district court’s decision to dismiss the copyright infringement claim with the same reasoning.

As we can see, copyright protection on screenplays has its boundaries -- the historical events, facts, and those details naturally flow out of the idea are not protectable. Maybe that's why the public can enjoy so many movies and dramas about Shakespeare. 

[1] See “30 Quotes about Screenwriting from A-List Directors & Actors”, available at https://screenplayscripts.com/quotes-about-screenwriting/

[2] See Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1443 (9th Cir. 1994), quoted by Heusey v. Emmerich, CV 14-06810-AB (EX), 2015 WL 12765115, at *3 (C.D. Cal. Apr. 9, 2015), aff'd sub nom. KENNETH HEUSEY, Plaintiff-Appellant, v. ROLAND EMMERICH; et al., Defendants-Appellees., 15-55975, 2017 WL 2839176 (9th Cir. July 3, 2017)

[3] See Murray Hill Publ'ns, Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312, 319 (6th Cir. 2004), quoted by Heusey v. Emmerich, CV 14-06810-AB (EX), 2015 WL 12765115, at *4 (C.D. Cal. Apr. 9, 2015), aff'd sub nom. KENNETH HEUSEY, Plaintiff-Appellant, v. ROLAND EMMERICH; et al., Defendants-Appellees., 15-55975, 2017 WL 2839176 (9th Cir. July 3, 2017)

[4] See Id. at *8.

[5] See Id. at *8.

[6] See Id. at *10.

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