Written by attorney Steve C. Vondran

The Scenes-A-Fair Defense to Copyright Infringement

Many people who receive a copyright infringement demand letter or notice of infringement from their ISP (ex. subpoena notice) or a software audit demand letter (ex. from Autodesk), believe they have no legal defense., However, there are many defenses to copyright infringement such as:

  1. No illegal copying
  2. Independent creation
  3. Fair Use doctrine
  4. Scenes-a-Fair
  5. No "substantial similarity"
  6. Parody
  7. Fair Use Defense

These are just some of the common defenses. For example, if you receive a photography infringement demand letter from a company like Higbee & Associates in Santa Ana, California, you may believe there is no legal defense and you must just pay the amount demanded (sometimes this can be as much as $1,000 to $5,000 or more). I have seen copyright photo demand letters for more than $50,000.

One defense to consider is what's called "Scenes a faire". This is a french word which basically means sometimes there is only one way to capture an image (ex. a skyline, or picture of the SF bay bridge, or a bottle of Sky vodka). In these cases the courts may require a HIGHER DEGREE OF PROOF OF INFRINGEMENT, for example, requiring a Plaintiff to show that the allegedly infringing photo is "virtually identical."

in these types of cases you should consult with copyright counsel because perhaps you should not be paying such high legal demands.

This video discusses the defense. Hope you enjoy. If so, feel free to SHARE this video on your social media networks. YOUR SUPPORT keeps us going and putting out all our great general legal information content!!!

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