Scènes à Faire as Identity Trait Stereotyping

There is at least one place where the law not only recognizes but expects and encourages stereotyping based on race, ethnicity, gender, sexual orientation, gender expression, nationality, and the like (“identity traits”) - stock characters. A stock character is the archetype of a story’s character and, as such, is excluded from copyright protection, making the stock freely available for other authors to use. However, harm arises when courts agree that a stock character is comprised of an identity trait and any other characteristic, indicating that what flows naturally from that identity trait is something more than just that identity - a stereotype. In fact, identity trait stereotyping appears in the seminal stock characters case, Nichols v. Universal Pictures, involving the “low comedy Jew and Irishman.” There are three steps courts can take to minimize identity trait stereotyping while continuing to permit the use of stock characters.

First, courts should recognize three categories of characters in creative works: stock, indefinite, and distinctly delineated. While only distinctly delineated characters would have copyright protection, the intermediate category allows courts to find that a character has multiple characteristics without implying that the characteristics are standard for specific identity traits. Second, courts must separate the determination of a character’s scope and copyrightability from the substantial similarity analysis to avoid conflating similarity with stock. Third, when possible, courts should also take the opportunity to correct the errors of the past.