Research On The Law Application Of Disputes Of Fan Fiction

Fan fiction is a kind of re-creation based on some elements of the existing work.In fact,fan fiction is not a new genre of works,in spite of making use of elements of existing works,which still can be characterized into current types of works,such as literature,art and more.So the issues of copyright infringement and law application relating to fan fiction can still be solved under current legal framework.As a kind of re-creation,the main form of fan fiction is to use the names of characters in existing works to create new works that are different from the original plot.For one thing,divided by the types of original works,fan fiction mainly includes re-creation using characters’ names in literary works and re-creation using character images in art and audiovisual works.Through case studies,it can be found that in practice there’s no doubt that the latter constitutes copyright infringement.Therefore,fan fiction discussed in this article refers to the type that uses characters’ names in literary works.For another thing,divided by the degree of utilization of the original work,fan fiction can be divided into derivative and non-derivative works.But actually derivative fan works go beyond the proper meaning of fan fiction and infringe the original author’s right of adaptation,which continue or rewrite on the basis of the original work’s plot,or only change the type of the original work.It can be seen that judgment of such cases is basically uncontroversial.Therefore,the legal application disputes discussed in Chapters three and four are about non-deductive fan works that "only use the name of the original character,separate from the original plot and constitute a new work".The main form of fan works is to use the original character names to develop new plots.Therefore,the issue of the legal application of fan works to be discussed in this article is whether the use of character names should be subject to copyright law or anti-unfair competition law.The role names in the works cannot be protected by copyright because they are not original expressions,which should belong to the public domain.However,in practice,these elements are additionally protected by the general provision of anti-unfair competition law when use of role names in fan works neither infringes copyright nor violates the specific provisions of the anti-unfair competition law.This method of applying the general provision to determine unfair competition is insufficiently justified,which misuses the "intellectual property law" label of anti-unfair competition law and inappropriately expands copyright,also does not meet the applicable condition of the general provision.Therefore,the issue of legal application of fan works not only involves the relationship between the intellectual property law and the anti-unfair competition law,but also involves the applicable condition of the anti-unfair competition law itself.This article demonstrates the irrationality of applying the general clause of anti-unfair competition law to fan works that borrow character names of literary works,and believes that elements of works that are not protected by copyright should not be provided with anti-unfair competition protection.In addition to the introduction and conclusion,this article is divided into four chapters.The first chapter introduces fan works from definition,development and features.The second chapter comprehensively sorts out relevant cases of fan works,and summarizes the current judicial practice on the different types of fan works,including application of copyright law and anti-unfair competition law.In addition,this article sorts out registered trademark disputes where the role names are protected as prior commercial rights and interests,so as to further clarify the judicial practice mode of applying anti-unfair competition law to fan works.And the problems of law application to fan works are put forward based on the cases analysis.The third chapter focuses on the application relationship between anti-unfair competition law and intellectual property law,especially the connection and difference.According to the legislative object of intellectual property law,the complementary feature of anti-unfair competition law should not be excessively emphasized.Specifically,the role names used in fan works are neither protected by copyright nor subject to anti-unfair competition’s supplementary protection,but should belong to the public domain.The fourth chapter analyzes the application of anti-unfair competition law’s general clause,clarifies the positioning and object of anti-unfair competition law,explains the correct application logic of the general clause according to a typical judgement,and analyzes the irrationality of applying the general clause to fan works.To conclude,this article believes that as long as fan works appropriately borrow elements that are not protected by copyright from existing works,such as character names,and the plots are not substantially similar to the original works,and there is no false propaganda,fan works should be admitted to be legal.