Jennie Nicassio v. Viacom International, Inc., et al.

Under the idea/expression dichotomy, the Circuits agree that in comparing original to allegedly copied works to determine actual copying, (a) elements of a generic plot, (b) general themes, and (c) under the scènes-à-faire doctrine, plot elements that are commonly used in, or necessary for, the treatment of generic plots and general themes should not be considered. The first question is: Whether the scènes-à-faire evidence exclusion for actual copying should extend to all plot elements naturally flowing from a simple formulation of the plot of the original work?

Copyright infringement requires actual copying and wrongful appropriation. The Circuits agree that material not original to the author should not be considered in the comparison assessing wrongful appropriation. However, respecting the original expression of the author, the Circuits have created two diametrically opposed rules. The second question is: Whether the proper test to determine wrongful appropriation is (a) comparing the original work as a whole to the copied portions in the allegedly infringing work, or (b) assessing fairness only after (i) removing and disregarding original elements deemed to be scènes-à-faire, and (ii) putting material added by the alleged infringer into the comparison?