Sarah Louise Bishop
In the last ten years, federal courts have quietly begun to apply copyright’s scènes à faire doctrine to dismiss infringement claims before party discovery has occurred. This move theoretically should not be possible, because applying the doctrine requires evidence of the conventions and tropes of the artistic genres at issue—something unlikely to be reflected in the parties’ pleadings.
This Article identifies this trend and explores the workarounds district courts use to achieve these dismissals without a factual record before them. The most common methods courts use are inconsistent with both the Federal Rules of Civil Procedure and Evidence and risk bias and baseless decisions.
The Article then places these dismissals in context. It suggests two causes, working in concert, for the recent shift to early scènes à faire rulings. First, the Supreme Court’s decisions in Iqbal and Twombly encouraged federal judges to dismiss more claims earlier, on the basis of their personal experience and “common sense.” Second, technological advances in the last twenty years have severely undermined access as a barrier to copyright infringement claims. Deploying the scènes à faire doctrine early provides an alternate way for judges to dismiss weak claims. The Article argues that this shift, and the methods judges have used to make it happen, has had both positive and negative consequences. These early dismissals prevent windfalls and lockup and preserve positive spillovers—but their procedural and evidentiary weaknesses undermine these benefits.
Lastly, the Article suggests a simple, though perhaps controversial, procedural solution. It argues that courts should treat genre conventions as legislative facts, rather than case-specific adjudicative facts, and embrace the use of “factual precedents”—earlier decisions in which courts have determined that certain elements in a genre or theme are scènes à faire—as long as certain procedural safeguards are in place. Repeated use of reliable factual precedents to support application of the scènes à faire doctrine would create a one-way ratchet in favor of the public domain, preserving the benefits of early dismissals based on scènes à faire while ameliorating some of their downsides.