The Comparative Research On The Copyright Protection Of Fictional Characters In China And The United States

Traditionally,the subject matter of copyright is work,and the essence of the subject matter protected by copyright is the creative expression in the work.The creative expressions of fictional characters can be protected by copyright as part of protected works.However,as society progresses,the diffusion of culture advances,and the commercialization of cultural products extends,some fictional characters show their values and particularities independent from the works they are embodied in,for which the possibility that the fictional character is protected as an independent subject matter of copyright and the standard of its copyrightability are necessary to be discussed,and the dichotomy of idea and expression in fictional characters,the determination of substantial similarity between two fictional characters,and the relationship between a fictional character and the work it is embodied in are needed to be clarified.There is not sufficient legal basis for the copyrightability of the fictional character as an independent subject matter of copyright in current Copyright Law of China,while over the years,the courts of the U.S.have developed relatively detailed theories on this subject through cases.This paper is constituted of following parts.First,it demonstrates the rationality of protecting the fictional character as a subject matter of copyright independent from the work it is embodied in,on the basis of general principles of copyright law,in the respects of both theory and practice.Then it concludes theories and standards developed in cases in the U.S.,analyzes typical cases decided by Chinese courts,and compares values,specific rules,environments of copyright system in the two countries.Finally,it makes suggestions on perfecting the protection of fictional characters by Chinese Copyright Law,in aspects of their independent status in copyright law,standard of copyrightability,routes to decide infringement,grounds for defense,and the relationship between fictional characters and the works they are embodied in.