A Study On Copyright Protection For Fictional Characters

For a long time,the protection of the fictional characters problems plagued by intellectual property rights in academia and practice at home and abroad.So far,our country has not been formed in the judicial practice and academy unified point of view.With the rapid development of cultural economy in recent years,the fictional character infringement activities become increasingly frequent,and it's hard to get perfect protection related obligees' interests.How to stop the infringement by law,and to protect the interest of related obligees,is a need to solve the problem.This article from the perspective of copyright law,and through the judicial decisions and opinions of scholars at home and abroad,from the view of concept,types,constitution and the related subjects of the right of fictional characters,the legitimacy and feasibility of copyright protection,copyright protection and its limitation for fictional characters to deeply analyze copyright protection for fictional characters.There are four chapters,excluding preface and conclusion.Chapter I is the analysis of the basic theories,mainly on defining the concept,types,and constitution of fictional characters;the fictional characters are divided into two types:literary characters and pictorial characters,which have some differences of their constitution affecting the use and protection of these two types of characters.Then the identification of the related subjects of the right of fictional characters,should respect the agreement between the relevant parties;without any agreement,it should abide the identifying rules of obligees of works in copyright law.Chapter 2 is about the related rights.In this article,author thinks that the concept as merchandising right or right of publicity of fictional character,which put forward by some scholars,are the mistranslation,and they need to be clarified.In addition,other current laws,such as Trademark Law and Anti-unfair Competition Law,on the protection of fictional characters have positive roles also have shortcomings like strict conditions,narrow scopes and tedious procedures.These laws are appropriate as a complementary role rather than subject in the protection for fictional characters.Chapter 3 firstly demonstrates the legitimacy of copyright protection of fictional character from the two aspects-jurisprudent bases including John Locke's labor theory of property and Roscoe Pound's theory of social interest,and social bases including advance of literary and art and development of cultural economy.In addition,this chapter also illustrates the feasibility of copyright protection of fictional character from the two aspects of character itself,which meets the requirement of being works,and the law,which leave the space for protection of these characters.Chapter 4 introduces the method of copyright protection of fictional character.Firstly,from learning the experience of the relevant precedent in Unite States and the copyright theories,author in this article thinks that infringement of a fictional character should be meet the "copyrightable + substantially similar" formula,and then introduces "copyrightable" standards and "substantial similarity" standards with related cases and theories respectively;if the accused infringing work at the same time satisfy the this two requirements,it constitutes the infringement,and then the law should take a action to protect the obligee.Last but not leave,the limitation of copyright protection of fictional characters includes the limit period and fair use.