On The Copyright Issue Of The Borrowing Of Characters And Scenes In Literary Creation

In literary creation,the borrowing of characters and situations from other people’s works is a popular form of creation.This paper mainly analyzes whether this form of creation constitutes infringement from three aspects.The principle of dichotomy of thought and expression is considered as the basis of judging whether a tort is constituted or not in judicial practice.The first step in judging whether a work of infringement is caused by the use of ideas or expressions in the work of others,and the relatively simple characters and situations created by the author in a literary work should belong to the category of thoughts,the characters and situations which can reflect the author’s choice,choice and design should belong to the expression category.It is the first standard to judge whether the borrowing of characters and situations belongs to the part of expression or not.The figures in the literary works with their unique connotation and the logical and reasonable plot design,which constitute the whole belong to the original expression protected by copyright,and the borrowing of original expression in the original works is used for literary creation,is the second standard of judging whether it constitutes copyright infringement.In judicial practice,fair use is often defended as the golden rule,and the copyright law does not specify the type of fair use for the borrowing of characters and situations,the creative forms of figure and situation borrowing are not expressed in the types of rational use,and the creative forms of figure and situation borrowing do not conform to the situation of rational use of typology.In judicial practice,we can analyze the proportion,the purpose and the type of the characters and the situation,and make the judgment whether it satisfies the reasonable use.The borrowing of characters and situations beyond the scope of fair use can be regarded as copyright infringement.