Scenes a Faire and Dangerous Driving

In Evergreen Safety Council v. RSA Network, Inc., 697 F.3d 1221 (9th Cir. 2012), the Ninth Circuit decided recently that a defendant’s reasonable belief that its images were non-infringing based upon the belief they were scenes a faire material was sufficient to rebut any willfulness showing.  Under the doctrine of scenes a faire, a court will protect a copyrighted work from infringement if the expression embodied in the work necessarily flows from a commonplace idea.  Scenes a faire has been literally translated to “scenes which ‘must’ be done.”

In the case, the defendant was charged with copyright infringement based upon diagrams in its driver training manuals depicting dangerous driving situations.  The defendant had developed a good faith basis to believe it had  an implied license to use the images, and the district court granted a summary judgment finding that the use of the images was protected.  As well as affirming that, the Ninth Circuit found that the images themselves constituted scenes a faire material of dangerous driving situations “because of the limited ways to portray such basic scenarios and the simplistic nature of RSA’s diagrams.”

Due to this finding, it defeated the willfulness exception to laches and so laches applied to bar the otherwise available claim. The case was filed in District Court in the Western District of Washington before Judge Ricardo Martinez and the Ninth Circuit panel included Judges Milan Smith, Stephen Reinhardt and Mary Schroeder.

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