A Study Of Fictional Character Merchandising Rights Protection

The complexity of social relations makes the legal system perfect itself by means of interpretation and expansion to achieve the purpose of accommodating new social relations.This essay will discuss how the rights of virtual character,the new-born social phenomenon will find a place in the discipline of law.As an object with artistic creation value,identification function and advertising value,virtual characters have been used by various enterprises.This social phenomenon has been around for nearly a hundred years.Nowadays,the use of virtual characters has formed quite mature.So cases of disputes related to the commercialization of virtual characters are also widely seen,but the legal regulation of the commercialization of virtual characters is still not perfect in the world,and no country has formed a theoretical or practical standardization of regulations to regulate this phenomenon.Therefore,this essay will explore the construction of its protection system based on the analysis of virtual characters and rights of merchandising characters.The first part of this paper will analyze and summarize the basic concepts of virtual characters and its rights of merchandising characters.The main focus on the definition,classification,function and definition of rights of virtual characters,so as to analyze the nature of rights of virtual characters,whether it is intellectual property or intangible property rights;then analyze the legitimacy of character protection,the legitimacy is explained from theory of labor property of Locke,customer attraction theory and incentive theory in economics.The second part of this paper analyzes the theoretical legitimacy of protecting virtual characters based on the content of the first part.It mainly explores theoretical theories such as Locke's labor theory and customer attraction theory;then from the perspective of market economy and commodity economy development.Establishing and perfecting the perspective of China's private law system analyzes the necessity of establishing a commercialization right system to protect virtual characters.The third part of this paper will compare and analyze the similarities and differences between the commercialization rights of virtual characters and the copyright,trademark and rights in anti-unfair competition laws in the existing intellectual property system.The virtual character has multiple values and functions.The function of artistic expression is similar to that in copyright.The value of logo and directivity is similar to that of trademark.Its guidingfunction to customers can be regulated by anti-unfair competition law.It is the complex collection nature of virtual characters that allows existing intellectual property rights to be temporarily included in the scope of protection,but because of the unique characteristics of virtual characters,the existing intellectual property system cannot protect it perfectly.So building a new system to protect virtual characters is not an extra move.The forth paper of this paper will analyze whether the existing protection systems in the two countries are reasonable and perfect based on the model of protecting virtual characters between the United States and Japan.The United States is one of the earliest countries to protect virtual characters today.Although it only confirms the protection of virtual characters in the cases,there is a better protection than other countries'.In the United States,according to different expressions,virtual characters are divided into different categories to protect.The degree of protection of each type of different virtual characters is different.At the same time,the United States assigns the protection to different legal categories in the intellectual property system,and safeguards the rights of rights holders as much as possible.Due to the development of the Japanese cultural industry,the protection of virtual characters has also received great attention.The merchandising rights of virtual characters has been confirmed in several cases.The fifth paper of this paper summarizes the results of the above discussion,that is,the virtual character commercialization right cannot be protected perfectly in the existing legal system,and discusses the necessity and feasibility of constructing a new system to protect the virtual character.Trying to analyze the legal relationship of the virtual character's commercialization right.And based on the information fair theory and the theory of interest balance,we need have the necessary restrictions on this right to avoid abuse of the infringement on the public domain.