Founder and academic director of the Fashion Law Institute, Professor Susan Scafidi, was quoted in a Bloomberg Law article regarding the challenges of proving that historical information deserves copyright protection in a case involving a producer of the Broadway megahit “Hamilton”.
Two principles in copyright law can help defend against such infringement claims, Susan Scafidi, founder and academic director of Fordham University School of Law’s Fashion Law Institute, said.
The first is the merger doctrine, which “says if there are only a few ways to express ideas—the fact that Alexander Hamilton had a duel—if there’s only so many ways to say it, then the idea and expression merge. And so copyright is very limited,” Scafidi said.
The other is the scènes à faire doctrine, which prevents scenes essential to the treatment of a topic from being protected via copyright. Hamilton Exhibition argued the doctrine “applies with special force in the historical context,” noting that the Second Circuit in Hoehling recognized the near impossibility of writing about a historical era without employing specific literary devices.
“If you’re shooting a Western, you have to have cowboys and horses. If you’re shooting a Hallmark romance, you have to have a sunset and a Gazebo,” Scafidi said.