| Not a legal concept,fiction character refers to the characters that appear in the work.Whether a fiction character can be protected by copyright law is a question of how to divide the expression of idea.In recent years,there have been more and more infringement cases according to fiction characters.Although the court has admitted to that the fiction characters are copyrightable,they refuse to recognize that the fiction characters could be protected independently of the work.It can be seen from the judgment of the case that no matter how the court determines the copyrightability of the fiction character,it still compares the entire work of the original defendant.There are two reasons for the court to do so.On the one hand,it is theoretically unclear about the relationship between the role and the work.On the other hand,there is no way to judge in practice.There are five parts:The first part defines the virtual roles discussed in this article.Due to different forms of expression,fiction characters can be divided into three categories:literary characters,picture characters and visual characters.The second part states how our courts have determined the copyrightability of fiction characters in recent years.It can be seen that the court did not recognize the relationship between the fiction character and the work,nor did it determine whether the fiction character could be protected by copyright law.The third part analyzes the status of fiction characters in the copyright law and analyzes the relationship between fiction characters and works.Using the idea-expressing dichotomy,the controversy about the copyrightability of fiction characters was answered.The fourth part uses the method of comparative analysis to study the judgment methods proposed by the United States and Germany in judicial practice,including the distinct delineation test,the story being told test,the especially distinctive test,the three-part test and overall image test.The fifth part considers how to judge the copyrightability of fiction characters.A fiction character protected by copyright law should have a complete image and features that can be identified.And this character can be separated from the work and is not stock character. |
