"Cool guys don't look at explosions" and other action-movie commonplaces in the age of 3D

Some bloggers like to type
in ergonomic position

Action movies have been among the most successful genres ever in cinema history.

Though predictable (but only ... ehm ... sometimes), these films are great fun and also source of inspiration to others (how to forget the memorable scene in Shrek 2 in which Pinocchio rescues Shrek, Puss in Boots and Donkey in pure Mission Impossible-style? French version available here). 

However, as clarified in the relevant Wikipedia entry, action movies are populated with stock characters/plots/scenes. They are 

"a film genre where one or more heroes is thrust into a series of challenges that require physical feats, extended fights and frenetic chases. They tend to feature a resourceful character struggling against incredible odds, which may involve life-threatening situations, an evil villain, and/or being pursued, with victory achieved at the end after difficult physical efforts and violence. Story and character development are generally secondary to explosions [a thorough musical explanation of this concept can be found here], fist fights, gunplay and car chases."

Who said that action movies are
just about violence and explosions?

Although similar features are common to any theatre/movie genre (and this has been the case since Ancient Greece), it seems that with 3D techniques things have gotten worse than they used to be in 2D times.

A couple of days ago Funny or Die released a mash-up trailer which is claimed to be suitable for any 3D movie, since "If you see one 3D movie this summer, you've seen them all."

As explained in the teaser and also reported here:

"This Summer ... Sh*t is going to fly at your screen ... in derivative ways. Arrows will fly at your face [apparently also the much awaited (at least in Italy, where it has not been released yet) last film of the Dark Knight saga includes an archery scene]. You'll free fall from a skyscraper in New York City. Cities will be destroyed. Buildings will fall in similar ways. There'll be alien ... bug ... things. And for some reason, a blue light will have to shoot up into the sky at some point."

A young (and possibly attractive) 
Magneto portrayed whilst thinking 
about US copyright

If this is true (as it seems to be), what are the implications as far as copyright is concerned? (I know: this is far less fun than discussing whether Avengers 2 will be shot any time soon …)

Most of these films are US productions and so are protected under US law.

As is well known, US copyright includes the notion of scénes à faire (French for "scene to be made" or "scene that must be done"). This a principle which excludes copyright protection in certain elements of a creative works which are mandated by or are customary to a specific artistic genre.

As exemplified in the relevant Wikipedia entry, a spy novel is expected to contain elements such as numbered Swiss bank accounts, a femme fatale, and various spy gadgets hidden in wristwatches, belts, shoes, and other personal effects. As a consequence, no copyright is held to subsist in these elements.

"Average" copyright avenger on duty

To be more precise, in the monumental Nimmer on Copyright, it is explained that the doctrine of scénes à faire does not limit the subject matter of copyright; instead, it defines the contours of infringing conduct. So it is relevant to the evaluation of infringement, rather than the actual subsistence of copyright.

If all the above is correct, then a couple of questions may arise:

1. Is the use of 3D techniques contributing to a "standardisation" in the characters (by making Robin Hood or Hawkeye-style heroes as popular as ever), scenes, and - possibly - plots of action movies?

2.  If this is the case, then do these films have the potential to include fewer and fewer copyright-protected elements than 2D predecessors? What are the implications as far as potential copyright litigation is concerned?

3. Do these 3D action movies need some Wolverine-like (copyright) healing factor? In other words: do they have to strengthen their originality factor, also considering their economic importance and huge popularity [last year's US box office Top 10 included Transformers, Mission Impossible, Sherlock Holmes and Thor] ?