Updated: Feb 28
T’is the designated season of romance and with that comes an all to familiar increase in romance themed media. Whether it be film, television, or other creative outlets many of the new releases around February 14th have something in common, and it is more than just the genre.
Romantic comedies are a common occurrence in the month that houses Valentine’s Day, (for example: February 2022 releases either on streaming or in Cinema – Marry Me, I want you Back, Book of Love, etc) and with the number that get released all year round, there are a lot of options available for anyone looking to spend a weekend or two binging rom coms. With all that selection the average viewer may start to notice that, like some other popular genres, the plots all seem similar. Sometimes more than the plots: the comedic best friend, the romantic locations, the meet cute guy, the ex, and the tough decisions that could tear the clearly destined leads apart. There are a lot of similarities in the average rom-com, many of which have been part of the genre forever. With countries like the US and the UK, that produce many of these films, having copyright laws in place and having signed international conventions that can provide works automatic protection without formalities, it may seem odd that films so similar in story can exist.
Some of that can be explained away by public domain laws, as per the Copyright, Designs and Patents Act 1988 s12(2), copyright expires 70 years after the author dies. This means that movies (some of them originally books) like Bridget Jones Diary, Clueless, 10 Things I Hate About You, She’s the Man, Pride Prejudice and Zombies, that all have some very clear ties to older works by Jane Austen and William Shakespeare, did not need permission to use the characters and storylines of work that was more than 70 years past its author’s death. Not every common rom com plot line can be directly tied to specific works in the public domain though. That is where, in US law, scènes à faire come in.
When there is a general set of events or base story progression that defines a certain genre or is needed for the genre to exist, it is called a scène à faire. In US copyright law scènes à faire are fair game, they are in the public domain and cannot be protected by copyright. Scènes à faire roughly translates to “scenes which ‘must’ be done”, so the doctrine can refer to settings, characters, events, anything that may be considered integral to the functioning of the genre. The lead in a romance needing a quirky best friend to act as comic relief, that could be considered a scène à faire if the courts saw it as being an essential element of the modern day rom com. While the doctrine has not been explicitly addressed, to any great extent, in UK copyright law, the concept behind it, allowing for ideas and expression not to be tied down simply after being stated once, is still present in UK court decisions where denial of copying has been supported instead of strictly analysing similarities.
So, if you are feeling inspired and want to venture into the world of romantic comedies by writing a book, making a film, or composing a musical, then there are many common elements that may be fair game and that you can invoke without drawing the attention of copyright law. Because having the characters meet, experience a falling in love montage of events, deal with some tough revelation then have all the problems get quickly solved and get to be happily together forever, well that’s the essential outline of a romantic comedy, and that’s unlikely to be subject to copyright.
 Intellectual Property Office, ‘Protecting your copyright abroad’ (2021) Gov.uk <https://www.gov.uk/government/publications/protecting-your-uk-intellectual-property-abroad/protecting-your-copyright-abroad> accessed 13 February 2022  Copyright, Designs and Patents Act 1988, s12(2).  Leslie A. Kurtz, ‘Copyright: The Scenes a Fair Doctrine’ (1989) 41 FLR 79, 82.  ibid 80.  Kevin J. Hickey, “Reframing Similarity Analysis in Copyright” (2016) 93 WULR 681, 696.  Stanley Lai, Copyright Protection of Computer Software in the United Kingdom (Hart Publishing 2000) 54/55.