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IP & Media Law Updates

| 3 minute read
Reposted from Advertising Law Updates

Hallmark Holiday Movies and the Scènes à Faire Doctrine

During the holidays, the television in my octogenarian parents' home toggles back-and-forth between Fox News (my father's choice) and the Hallmark Channel (my mother's). (“We got rid of Netflix and Hulu. Too damn expensive, and not a damn thing worth watching!”) I used to think my parents did this to torture me; I now see the real reason behind their basic cable preferences. (“It’s not always all about you, Brian.”) My parents are restless doers. From dusk to dawn, they are engrossed in one project after another on a never-ending to-do list that, I have come to realize, gives purpose to their lives. (“I’ll have time to rest when I am dead!”) And it turns out that Fox and Hallmark are the perfect companions for my twitchy, task-driven, aged Ps since neither channel demands their full attention - or anything close to it. Fox News hosts repeat the same talking points so often and so emphatically that my father will have no trouble finishing Laura Ingraham's sentences about America's “War on Christmas," even if he has to leave the TV room to fetch a power tool from the garage. And it is a truth universally acknowledged that the protagonists in a Hallmark holiday movie will discover that their love for each other can conquer any obstacle. This means my mom isn't going to lose the narrative thread of A Merry Scottish Christmas just because she can't hear the TV when she's grinding graham crackers for a pie crust. (🥧)

Over the holiday weekend, The New York Times published an excellent article by Alicia Parlapiano (and a team of collaborators) who examined 424 (🤯) holiday films that Lifetime and Hallmark released since 2017 to determine just how similar they actually are. The article tested a widely-held (at least on Reddit) belief that the majority of these movies share the same plot:

“A recently dumped, high-powered female executive from the city finds new love, purpose and appreciation for Christmas in a small town with the help of a handsome local fellow.” 

The results were interesting. 

  • Since 99% of the films are about Christmas (and 73% even have “Christmas” in the title), it is no surprise that they all look very “Christmasy" in an aspirational way, with sets decorated with costly-looking, catalog-worthy trees, wreaths, and candles. (You won't see inflatable lawn decorations in a Hallmark holiday special. Never.)  (🛑)
  • As demonstrated by the below compilation (also from Reddit), the posters promoting the films look eerily similar - often featuring the lead couple (almost always white and heterosexual) in Christmas-green and red sweaters. The Times article notes that this is changing, as efforts are made to diversify casting and to change up the key art. But the image is worth a thousand words.
  • About 22% of the female leads start the movie in city corporate jobs (🌆); many others have jobs in the local town. (🐄)
  • 20% of the male love interests could be described as locals, and a slightly higher percentage are men from the past (an old beau, an old friend, an old rival). (😍)
  • While the plots differ, the films share common tropes, such as a big holiday event at which something important happens (a Christmas carnival, a scavenger hunt), efforts to save a struggling business desperately in need of a Christmas miracle (a bakery, a candy store, an animal shelter), and opportunities to teach the true meaning of Christmas to someone  desperately in need of the lesson. (🎄)
  • In many of the films, one character will be a Christmas enthusiast, and another will be a pre-conversion Ebenezer Scrooge. (Conflict!) Often, there's a wise senior citizen among the town folk who is ready, at just the right moment, to gently point our lovers in each other's direction. And there are lots of adorable dogs. (🐶)
  • You can always count on it to snow. (Climate change doesn't exist in a Hallmark holiday movie.) (❄️)
  • And, of course, all of them have happy endings. (🎬)

This commonality is dictated by the holiday romance genre: to succeed, the films need to hit the notes that the audience expects. But are they so similar that they might infringe upon copyright? It is (of course) possible that one particular film might copy too much from another - either literal expression or the original way that the prior filmmaker selected and arranged non-protectable elements. (See this post and this one). However, in most cases, the similarity exists at a conceptual level - and therefore is not subject to copyright protection - or constitutes scènes à faire - the type of standard, stock expression that is common to a particular subject matter, lacks originality, and has no claim to copyright protection. (See this post.) Indeed, scènes à faire gives Hallmark and Lifetime sufficient breathing room to create comfortably predictable holiday movies that satisfy not only distracted busy beavers engaged in the myriad tasks it takes to host a holiday (like my parents), but also the beneficiaries of those labors (like me) who doze on the couch after a satisfying holiday meal, half-watching A Cozy Christmas Inn

Happy holidays to all!

 

Tags

copyright, copyright law, scènes à faire, holiday movies, hallmark channel, lifetime channel