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News / Firm News

Some Issues on Copyright Protection of Fictional Characters

2019-08-26

Thanks very much for the organizers and the host. I am very glad to share my opinions on the topic of “Some Issues on Copyright Protection of Fictional Characters”, that is, a rough framework idea of copyright protection and other aspects of protection of fictional characters. Firstly, I’d like to show you some statistic data. According to the International Licensing Industry Merchandiser’s Association (LIMA), the global retail sales of licensed commodities in 2018 is 280.3 billion US dollars. As can be seen, this is a huge industry, wherein 79% of the sales are through physical stores, and 21% through online stores. Although the proportion of online sells may not be as large as imagined, it will probably change with the development of the models and channels of online retail commodities. Our topic today relates to entertainment and characters, accounting for 43.8% of the 280.3 billion U.S. dollars, namely 122.7 billion U.S. dollars. Therefore, it is already a very large industrial chain to license fictional characters to derivative products for retail. At present, there are no accurate statistics on the Chinese market or statistics on licensing models other than retail commodities, which is believed to be a very large amount.

Common commercial operation models of fictional characters include online games, in which fictional characters are licensed to roles, pictures, videos or live broadcasts of online games, such as Emoji, retail commodities, live-action movies, like the famous Hulu Brothers in the 1980s which is now in preparation for filming, and theme parks. Generally speaking, fictional characters are commercialized in various ways, which involve the protection of copyright and other types of intellectual property rights.

The first part I’d like to share today is the general classification of fictional characters and the sources of works. Those shown in the PPT are all familiar characters, such as Mario which is a game character, and Rabbids which is a cartoon character, and other characters from cartoons, movies, toys, literature and TV. The so-called “virtual” characters are different from real people. The rights related to real people are protected by laws such as the Civil Law which stipulates the right of portrait and right of name, and the Tort Liability Law, which is not the topic today. Fictional characters include person characters, animal characters, and characters of non-biological entities, such as the Thomas train, the Minions, virtual singers, clothing elements, props and so on, indicating the diversity of fictional characters.

The second part will focus on the type of works on which the elements of fictional characters are mostly claimed. The common ones are art works and literary works. There is generally no problem for art works to be protected by the Copyright Law. It is controversial whether literary works, especially the names of characters, can be protected by the Copyright Law from the perspective of originality. In this regard, the US Case Law established three standards, which should be applied to judgments in judicial practice. The first one is the “well-delineated test”, that is, if the virtual role is for example an ordinary rabbit or an ordinary cat, it cannot be protected by the Copyright Law; and if there are clear description and consistency on the virtual role, it should be protected. In the cases to be shared later, some characters can be protected, and some cannot. The second one is the standard of “story being told test”, in which whether the character and the story are separable should be considered, and the character should not just be a tool to tell the story. The third one is the “extrinsic test”, in which the appearance should have a distinguishable individuality, forming a complete character. In practice, there may not be a clear boundary among these standards, which we can observe from the cases to be shared later.

In terms of the content of rights, the copyright protection of fictional characters involves the author’s personal rights, mainly including works integrity right, and property rights, mainly including reproduction right, adaption right, distribution right, information network dissemination right, etc.

Next, I would like to share a few cases with you. You may have seen these relatively typical cases before. The first one is about the Q-version Sun Wukong. The court identified the Q-version Sun Wukong as an artistic work. A cultural creative company sold the three-dimensional bronze statue of Sun Wukong, and the court supported the claim of infringement of the reproduction right. That is, reappearing the original expressions in a three-dimensional way constitutes reproduction. Furthermore, unauthorized sales constitute an infringement of the right to issue. This is a typical case of derivatives of the fictional characters.

The next case is about the “Big Boss” game. The names of the “four famous catchers” and other characters are considered as an important expression of Woon Swee Oan’s novels. The accused game shows the plaintiff’s character through character features and character relationships, which constitutes the adaptation of the original expression. The plaintiff also asserted unfair competition, but the court held that the defendant’s conducts would not cause the reader to associate or confuse the source between characters and novels, which belongs to the regime of the commercial marks under the Anti-unfair Competition Law.

The third one is about “The Youth Here”, which is a typical case of the fan-fiction. This novel uses the same character names as Louis Cha’s novels. According to the roles and stories, the judiciary did not recognize the names of the person constituted an original expression but believed it was only used as a tool. Since Louis Cha’s novels were not reproduced in the plot of “The Youth here”, the court did not support Louis Cha ‘s claim of adaptation right. However, Mr. Louis Cha’s novels were protected by Article 2 of the Anti-unfair Competition Law in this case. The court held that the defendant’s use violated the publicly recognized commercial ethics and had improperly obtained considerable commercial interests.

The fourth case is about “Ghost Blows Out the Candle”, which is also not protected under the Copyright Law. The reason is that the characters have not been fully and uniquely expressed. The names and relationships of the characters are too simple to be protected by copyright after leaving the plot. The Anti-unfair Competition Law also played an important role in this case. The plaintiff claimed the “commodity-specific name” according to the false advertisement recognized in Article 9 of the Anti-unfair Competition Law at that time, but it was not supported because the plaintiff did not establish a directional relationship through use and the name of the person could not play the role of identifying the source. Of course, this is because the plaintiffs did not use it in this way, so they were not supported in this case.

The fifth case is about “My Name is MT” game. In the part of copyright, the court made a detailed analysis on the five characters in the game from the aspects of props and the physical features of the characters, and finally held that there was a big difference between costumes and weapons, and there was no substantial difference in facial features. In the part of unfair competition, the court supported the names of the five characters constitute the unique names of famous service.

In the sixth case, in addition to claiming copyright and unfair competition, the plaintiff also claimed infringement of trademark rights. The name of the game is considered to function as an indication mark in judicial practice, so the court held the claim of infringement of trademark rights.

A rough summary of the above-mentioned cases:
1)From the perspective of copyright protection of fictional characters, the three standards established by U.S. jurisprudence can also become relatively specific and operable standards for evaluating originality in Chinese judicial practice.
2)The character and elements that are difficult to achieve the high degree of originality may seek the protection under the Anti-Unfair Competition Law.
3)The commercialization right of the fictional characters is still difficult to be supported in judicial practice due to lack of legal basis.
4)Virtual characters and elements can seek the protection under Trademark Law in order to facilitate the acquirement of rights, enforcements, and resolving conflicts of rights.
5)The protection of Patent Law may be sought if the characters are eligible to meet the corresponding requirements, of which the protection boundary is clear and definite.
The above is my speech today, and if you have any question, please send email to us at info@beijingeastip.com. Thank you.