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On Cinematical, Scott Weinberg points out that the Wayan Brothers' latest "comedy," Little Man, bears a startling resemblance to an old Looney Tunes short cartoon called Baby Bugs Bunny. Weinberg writes:

Stuff stolen from the 52-year-old cartoon includes: 1) A scene in which the new guardians discover a tattoo on their new baby friend; 2) A clueless grown-up giving the man-baby the "upsy-daisy" treatment ... into the ceiling; 3) The most blatant theft: A gag involving the flicking of lights and the smackdown that occurs when someone says "click" instead of flipping the lights off. (It makes more sense if you've seen the Bugs cartoon recently, which I have.)

Now, the idea of a grown man hiding out from the law by masquerading as a baby isn't really copyrightable (though it is kind of loathsome). That would mean certain death to creative expression The specific plot line, types of characters, dialogue - these things are. So repeating certain scenes, as the Wayanses are alleged to have done, would be copyright infringement, right?

Well, not necessarily. I have not seen the movie, but based on this recap it could be argued that at least #1 (tattooed baby) and #2 (upsy-daisy) might be considered "scenes a faire," or elements that are intrinsic to a certain type of story or genre. Examples:

• A police procedural thriller that ends with the lead detective facing off against a killer with a tendency for baroque displays of his sadism is not plagiarizing Silence of the Lambs unless the scene takes place in a basement, is shot with night-vision lenses, names the characters Jame Gumb and Clarice Starling, and features a killer who likes to, well, you know.
• A melodrama about a woman who takes revenge on an abusive husband by murdering him is not plagiarizing The Burning Bed unless she kills him by setting him on fire while he's in bed.
• A courtroom drama that ends with the defense attorney realizing he's been duped by one of his key witnesses is not plagiarizing Witness for the Prosecution unless the deception hinges upon an identical series of plot events that lead to the crucial twist (or features a heavily accented blonde woman hissing "Damn you! Damn you!" from the witness box).
• A film about two firefighters trapped in the rubble on September 11th while their families watch the events play out on the news would not be infringing on World Trade Center unless they stole the script.

So, in this case, I think it's fair to ask whether or not finding a tattoo on a fake baby and the whole upsy-daisy thing might constitute scenes a faire for a story with this general premise. If the tattoo were the same tattoo, that might be a different story. But natural story development, without having seen this particular short, might actually lead you to create these two scenes. A grown man the size of a baby getting thrown in the air? That just screams "development note."

However, number 3 really, really sounds like copyright infringement. It sounds like there would have to be a lot of really complicated setup required in order to make that scene work, and since the gag with the word "Click" doesn't make any sense when just written out like that, well, that hardly qualifies it as a scene a faire.

For more on copyright law, check out Wikipedia's thorough entry, starting with the section on Laws and Limitations.