Analysis On The Copyrightability Of Virtual Character

In recent years,in the domestic copyright infringement disputes related to virtual characters,the court often needs to answer the question of the copyrightability of the virtual characters themselves.When there are only virtual characters similar between the works involved,only when the virtual characters themselves constitute an original expression,can the works involved have the possibility of establishing substantial similarity.Virtual characters consist of substantive features,and substantive features include basic features and iconic features.Only virtual characters with both basic features and iconic features may be copyrightable.When discussing whether a virtual character can constitute an expression,it is necessary to use the idea / expression dichotomy to delineate the substantive feature range of the virtual characters as expressions.When judging the originality of a virtual character,it is clear that only a virtual character closely connected to the storyline may have originality.Finally,the principle of merger and scènes à faire doctrine should be combined to exclude the parts of the virtual character that are not protected by the copyright law,and refer to the “story being told” method,the highly delineated method,and the especially distinctive method to determine whether the virtual character is copyright.When judging whether the virtual characters are substantially similar,the abstract test method should be applied to the virtual character characters,and the total concept and feel method should also be considered according to the specific situation,and a comprehensive judgment should be made.The use of virtual characters includes re-creation and commercialization.The determination of substantive similarity in re-creation is more restrictive,while the identification of substantive similarity in commercialization is relatively broad.Although judging substantial similarity of virtual characters involved,the non-commercial re-creation of virtual characters should be considered as fair use,and the fairness of commercial re-creation and virtual character merchandising should be identified case by case except for parody works which can be considered as fair use itself.Meanwhile,virtual character merchandising is hardly to be identified as fair use according to judicial practice.Constructing a system respecting protecting virtual characters in China’s copyright law domain,making it clear that virtual characters can be copyrighted complies with the principles of copyright law,would help improve the relevant demonstration in domestic judicial practice,avoiding ruling copyright infringement disputes with unfair competition laws.While clarifying copyrightability of virtual character may limit the prosperity of commercial re-creation to a certain extent,it can surely better protect the interests of copyright owners as well as promote the prosperity of original culture.