Study On Copyrightability Of Fictional Characters

This article mainly discusses the case of Jin yong v.Jiangnan,which brings the issue of the copyright of Fictional Characters into public view.As the fast development of china's socialist market economy,the phenomena of merchandising has been increasingly emerging.It enriching our material and cultural life.However,judicial department feel helpless when dealing with this kind of problems,because of the lack of adequate support.So the research on copyrightability of fictional characters has important practical significance.In the aspect of theory,the scholars have been some researches,in reference to domestic and foreign scholars,this article contents many foreign cases.The author thinks,the fictional characters can be copyrighted after meeting the conditions,and it has practical significance for the judiciary to analyze the infringement case in judicial practice.There are five parts in this paper.The first part is the introduction part,mainly described the source of the problem of this paper.This article is based on the case of Jinyong v.Jiangnan.In this paper,the author analyzes the fictional characters and the copyrightbility of fictional characters in reference to domestic and foreign theories.The second part analyses the theories of fictional characters,define the concept of fictional characters,and classification,constituent elements and use of forms of it.And distinguished the difference between the merchandising right and the right of publicity.The third part use the idea/expression dichotomy to distinguish the fictional characters is the idea or expression in the Copyright law.And it is also talk about the elements of the fictional characters.The fourth part analyzes and compares the typical cases between America and China.Final part of the paper analyzes the copyrightbility test of fictional characters that it can provide some suggestions to judge for the court in our country.And the paper summarized the previous article,in order to provide some useful measure,to solve the infringement problems of fictional characters.