| Animation images are usually highly recognizable due to their unique appearance and character characteristics,and are therefore preferred by consumers.This preference allows products derived from the secondary commercial development of cartoon images to gain a huge competitive advantage in the market,and this market competitive advantage greatly increases the risk of cartoon images being used by others for commercial use.This kind of competitive advantage is obtained because of the credibility carried behind the cartoon image-that is,consumers can immediately reflect the overall impression of the cartoon image in their minds,and they have a tendency to consume based on their love and trust in this impression.Such a kind of credibility is currently protected in the name of commercial rights and interests in our judicial practice.Animation images include not only static character appearances,but also diverse,dynamic,and developing character personalities.This is why consumers will form an overall impression in their minds rather than a fixed picture.Therefore,the protection of animation images is not only the protection of each static and single frame of artwork,but also the protection of other important elements that constitute its overall impression.Otherwise,the infringer can modify the work to the extent that it does not achieve "substantial similarity"but can make ordinary consumers think of the cartoon image at a glance to circumvent the relevant protection of the copyright law.The cartoon image is composed of some important elements,and the elements that meet the originality requirements of the work can be protected by the copyright law.But for other elements that may not be original but can make consumers quickly think of the animation image,how to protect it?This article begins to think about whether we can analyze such problems from the perspective of merchandising rights of cartoon images.To discuss the merchandising rights of cartoon images is inseparable from the research on the merchandising rights.The research on merchandising rights in my country started relatively late,so for the countries where the development of the animation industry in the United States and Japan has approached maturity,the research on merchandising rights has certain reference significance for the research on the merchandising rights of animation images in my country.In the American legal system,the image characteristics of celebrities and well-known roles belong to two different categories.The former is called the right of publicity,and the latter is called the right of role.Animation images belong to the latter category,and the United States applies a mode of joint protection through copyright law,trademark law and competition regulations.Japanese academia initially introduced the concept of commercial image rights under the influence of the US image rights,which refers to the right of celebrities to exercise exclusive control over their own attractive and economically profitable parts,and then expanded the concept to "things".Nowadays,Japanese scholars no longer adopt the concept of commercial image right and translate"Merchandising right" directly and expand its object to virtual images.This article analyzes the relevant laws and regulations of the United States and Japan for the protection of the merchandising rights of cartoon characters,analyzes the nature of the rights and the rationality of the current introduction of the rights,and finally settles the merchandising rights of cartoon characters on the merchandising rights.Research and exploration by domestic researchers on merchandising rights still remains in the theoretical stage.Mr.Zheng Chengsi believes that the right of publicity is an unfinished concept,which is in the marginal field of the existing legal concepts such as copyright and trademark rights,and believes that the so-called "image" is a rich connotation including real characters and fictional images.Some scholars believe that merchandising rights are a new type of intellectual property rights independent of copyright and trademark rights.Other scholars believe that merchandising rights are intangible property rights outside of the scope of intellectual property rights...and there are many professionals in the field of the necessity and legitimacy of the existence of the right of transformation are questioned.Based on the academic research on merchandising rights,this article uses literature analysis,case analysis,and comparative analysis to try to explore possible ways to protect the merchandising rights of cartoon images.The first part of this article analyzes what is an animation image and what is the merchandising of an animation image,and defines the merchandising right of an animation image as a kind of merchandising rights.It is considered that it belongs to the category of new intellectual property rights,so it also supports this kind of commodity The rights and interests of animation are protected under the existing intellectual property legal framework;in the second part of this article,the article analyzes the legal provisions on the protection of the merchandising rights of animation images in the animation powers such as the United States and Japan,and tries to improve the image of animation in China.The protection of merchandising rights provides a reference;the third part of this article first explains that the actual need to protect the merchandising rights of cartoon images is imminent,and explains why we need to protect such an emerging right of uncertain nature and unknown content.Next,it analyzes the pros and cons of my country’s existing laws and regulations in protecting the merchandising rights of cartoon images,in order to build on my country’s existing protection models and selectively learn from the well-functioning legal protection systems for the merchandising rights of cartoon images abroad.At the same time,combining with the status quo of the development of animation industry in our country,try to explore how to better protect the merchandising rights of animation images under the existing legal framework.In the last part of this article,it is concluded that currently the separate legislation is not suitable for the protection of merchandising rights for animation images.Instead,efforts should be made to improve the existing legal framework and adopt the protection of copyright law,trademark law and competition regulations.The comprehensive protection model of intellectual property rights supplemented by protection regulates behaviors that infringe on the merchandising rights of cartoon images,and tries to put forward some feasible suggestions. |
