Scène à faire as a non-copyrightable part of the work
- What constitutes scènes à faire?
- Is it possible to protect the scènes à faire element in individual cases?
However, despite the establishment of exclusive rights in a work, it may contain elements that are not protected by copyright. They are publicly available and can be used by others without the author's permission.
That way, one part of the game can be copyrighted and the rest of the game can't.
The unprotected portion may fall under the doctrine of scènes à faire (or "scene to be made"), a denial of copyright protection for "common elements of a work."
What constitutes scènes à faire?
Scènes à faire occurs when a videogame uses common elements, such as ideas, concepts, and plot elements, that are considered common and standard for a particular genre.
Such elements are not created by the author and are used either as a cliché to fit a particular genre of video game or to convey a particular mood. They do not represent creative creativity, but are common or necessary elements found in similar works.
| Example: interrogation and harassment scenes typical of crime films, and scenes of a first date in a restaurant typical of romantic comedies. Since such scenes are an integral part of the genre and, therefore, not original enough, their copyright protection is quite controversial. |
Is it possible to protect the scènes à faire element in individual cases?
In cases where such "typical" elements form an authorial sequence (e.g. an original plot) or include unique elements and are thus the result of the author's creativity, copyright protection will apply.
Thus, of course, there will be no exclusive rights to the elements of scènes à faire if you use them. However, if you create a "wrapper" to give originality to such an element (for example, special plot twists, characters or other distinctive features), such an element will be considered unique and you will be its author.
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