The Protection Of Fictional Charactersunder American Copyright Law And Its Reference To China

The fictional character can be independent of the plot of the work in the literary image layer.It is a symbol of human personality that can trigger people's inner concern and feelings.Therefore,under the mass consumption era and the character economy,it has become an important commodity for the cultural industry to lengthen the industrial chain and obtain profits.With the continuous development of China's cultural industry in recent years,the economic value of fictional characters has been increasingly explored and valued,and legal disputes,especially copyright disputes,have become more and more.However,compared with the United States,China's research on the protection of copyrights of fictional characters is not deep enough,especially for the status of fictional characters under the copyright law,the substantial similarity judgments in the copyright infringement cases involving fictional characters,and the potential conflict between the protection of fictional characters under anti-unfair competition law and copyright law.Since the cultural industry started earlier in the United States,the judges and scholars have been discussing this issue since the 1950 s,and have accumulated considerable experience that we can learn from.The copyright law status of fictional characters has been controversial in theUnited States.U.S.Copyright Office explicitly denies that a fictional character is an independent work under the Copyright Act,but US courts,especially the Ninth Circuit Court have gradually established the independent copyright law object status of visual characters in the judicial practice,but it is still doubt that literary characters can be protected independent of works where they appeared.In addition,US courts have formed two more influential test about copyrightability of fictional characters,including the distinctly delineated test and the “story-being-told” test.Under the distinctly delineatedtest,only by adequately developed can a fictional character is copyrightable.The test was mainly developed in a series of cases of the US Second Circuit Court and its district courts,and received more support from other courts.However,when applying the test,the judge usually describes the fictional character and then directly draws a conclusion as to whether it is copyrightable.So far,the specific requirements of the test have not been explained in the case.The only clear thing is that compared with literary characters,cartoon charactersare easier to meet this test.Under the“story-being-told”test,only by constituting a story being told,rather than merely a chessman in the game of telling the story,can a fictional characterbe protected by copyright law.This standard was mainly created and developed by the Ninth Circuit Court and its district courts.However,it has been questioned since its submission,and it has hardly been supported by other courts.Even the Ninth Circuit Court has restricted itself and applied the distinctly delineatedtest as the supplement to reason better.The“total concept and feel ”test is one of tests forsubstantial similarity,including “external test” and “internal test”,emphasizing whether the overall concept and feeling of the two works are similar from the perspective of ordinary people.This test is often cited in cases involving fictional characters.Because the application of the above tests in judicial practice is not satisfactory,American scholars have reconsidered them and put forward corresponding suggestions.The “story-being-told” test is criticizedmainly because it is too strict.However,in the later stage,it has been reaffirmed by some scholars because it consider context where fictional characters appear.Compared with the “story-being-told” test,the distinctly delineatedtest is recognized by more people,and get some support in the early days,but the testexposed more defects such as ambiguity,arbitrariness that have been pointed out by scholars,because it was applied more in practice.Based on the above considerations,American scholars have proposed two suggestions.The first is to improve and develop the test for the copyrightability of fictional characters.The main consideration of this proposal is that the court has been and still insists on the judgment of the copyrightability of fictional characters.Some scholars support the improvement of existing test for copyrightability.The other part puts forward new test for copyrightability,and scholars have not yet reached an agreement.The second is to abandon the copyrightabilitytest and directly apply the test for substantial similarity.After the US court judges the copyrightability of the fictional character,it will enter into a substantial similar judgment.In cases involving literary characters,the courts still tend to judge the substantial similarity basing the whole work.The court held that the conventional setting and the abstract similarity did not constitute substantial similarity.In addition,the difference between fictional characters and other elements of the work is also one of the important considerations for some courts to make substantial similarity judgments.In cases involving visual characters,the courts focus almost exclusively on the character itself when judging substantial similarity.If physical qualities of the fictional character are copied almost exactly,it will be considered as infringement,and the inaccurate copy of physical qualities will be judged with other parts such as conceptual qualities of the characters.American scholars have mainly pointed three questions.Firstly,when considering substantial similarity,only considering the similarity of fictional characters or the similarity of physical qualities violates the "whole concept and feel" test.Secondly,once the name of the character appearing in plaintiff's work and defendant's work are the same andthere is a license agreement between the plaintiff and the defendant,the court will neglect the substantial similarity comparison.The third is the ambiguity of the "whole concept and feel" test itself.In response to the above questions,American scholars proposed improvements based on the substantial similarity judgments in the Nichols case and Krofft case.Since fictional characters not only contain elements of original expression that can be protected under the copyright law,but also include the ability to be recognized by the public as a mark in the market,in addition to copyright law,the identification of fictional characters may also be the object ofanti-unfair competition law.However,there is a certain conflict between the protection of anti-unfair competition law and copyright law.American judges and scholars have explored and thought about the boundaries between the protection of fictional charactersunder anti-unfair competition law and under copyright law.First of all,the judicial practice of the United States is basically affirmed as to whether the protection of anti-unfair competition law can coexist with the protection of copyright law.However,some judges are worried that this protection will overstep the functions of copyright law and even undermine the realization of the value objectives of copyright law.Secondly,the US anti-unfair competition law provides two conditions for the protection of fictional characters: one is that fictional characters have the secondary meaning.The other is that the use of fictional characters by others may lead to confusion among the public.However,the application of these two conditions in judicial practice has a tendency to expand.If the fictional character has a high reputation,and the use of the fictional character can make the public think of the fictional character,some judges often think it constitutes unfair competition.In addition,some judges also applied the misappropriationtheory of anti-unfair competition law in cases,which further expanded the scope of protection of fictional characters under anti-unfair competition law,resulting in the conflict with copyright law.Some judges and scholars have rethought this phenomenon,trying to redraw the boundaries between them in some cases,such asasking publishers to prove that fictional characters are not only able to identify works or authors,but also to identify publishers.Some judges did not apply anti-unfair competition law whencartoon characters are copied,but implied that the plaintiff defends his rights under copyright law.The above-mentioned US copyright law protection experience for fictional characters has three major implications for China.The first is that we should avoid the tendency to protect fictional characters as the copyright law objectsindependent of works where they appeared,because the independent protection offictional characters is neither necessary nor operational.More specifically,we should not be caught in the muddy nature of the fictional characters copyrightability judgment like U.S.courts.Instead,we should directly make the judgment of "contact + substantial similarity".The second is about how to improve the substantial similarity judgments in copyright law infringement cases involving fictional characters.In terms of literary characters,the works where literary characters appeared should be compared first.If the similar part constitutes original expressions,no matter the proportion of expressions in the plaintiff's work and the defendant's work,it constitutes substantial similarity.If it is hard to draw conclusions,it can help to determine whether the work of defendant constitutes substantial similarity in terms of the total concept and feel of characters.As far as the cartoon character is concerned,as long as its physical qualities are copied,it is enough to constitute substantial similarity.But if it is difficult to judge whether physical qualities that are copied constitute substantial similarity,we can further consider whether other elements of the visual character are copiedto judge substantial similarity.The third is that we should be cautious when applying the anti-unfair competition law to protect fictional characters,avoiding over stepping the boundary between it and copyright law,and impairing the realization of the value target of copyright law.First of all,it is necessary to clarify the relationship between the protection of fictional characters under anti-unfair competition law and copyright law.Secondly,it is necessary to clarify the legal basis for the protection offictionalcharacters under the anti-unfair competition law.Thirdly,we should judge whether fictional characters have the function of signal that anti-unfair competition law requires.Finally,it is necessary to avoid the presumption of confusion when applying the law.We should be in line with facts.