论人物商品推销的著作权保护
Copyright Protection of Character Merchandising
苏志强
【摘要】人物商品化权作为商业实践中出现的一种新型权利，在现实生活中扮演着越来越重要的角色，各国立法也在不同程度上对此作出了反映。本文从著作权保护的角度出发，在分析英美法系一些主要国家保护人物商品推销的立法和司法实践的基础上，对新西兰现行制度作了评析。本人认为，虽然著作权在保护人物商品推销方面扮演着重要角色，但受其自身性质所影响，著作权对人物商品推销的保护是不完全。实际上，借助于著作权、商标、passing off等法律手段，一个相对完善的人物商品推销保护体系已经在新西兰形成。
【关键词】character merchandising, copyright protection.
【全文】
Copyright Protection of Character Merchandising
Zhiqiang Su
Introduction
Character merchandising is an industry which has developed rapidly with the arrival of mass communication. Today, mass communication has led to vast commercial activity focused upon the public’s perception of an association between a consumer product, service, business or institution on the one hand and a celebrity figure or a recognized celebrity item on the other.⑴ Usually, the creator of the character or the owner of the rights in the character will exercise the character merchandising rights by way of licensing others to sell articles to which a representation of, or the name of, the character is applied. In a few cases, they will retail the articles directly.
As a rapidly developing industry, character merchandising is not a new phenomenon. An obvious example is that the Walt Disney Corporation’s fictional character Mickey Mouse has been used in this way for some time. However, with the development of both society and the economy, character merchandising has become more and more important in today’s commercial activities. In fact, character merchandising has become a multi-billion dollar business.⑵ Hence, the question of how character merchandising can be protected is of growing importance.
In 1985, after reviewing what protection is available to character merchandising in the New Zealand context, Andrew Brown concluded:
As will be apparent, the protection available to character merchandising is piecemeal and uncertain; the commercial development of merchandising has clearly outpaced the protection available. A comprehensive review of this protection in New Zealand is warranted and careful consideration given to strengthening of the existing legislative and common law rights.⑶
Nearly twenty years have passed since then. Taking the recent development of other jurisdictions into consideration, to what extent is copyright protection available to character merchandising? To answer this question, “a comprehensive review of this protection” is no doubt necessary.
Generally speaking, character merchandising can be defined as the promotion of goods or services by associating them with a real or fictional character,⑷ such merchandising can be divided into three categories: the merchandising of real characters, the merchandising of fictional characters, and the merchandising of fictional characters played by real persons.⑸ Due to the key distinction between a real character and a fictional character, the extent to which copyright is available to protect these two types of characters is different.⑹ For convenience we will discuss them separately.
Copyright protection of fictional characters
Fictional characters have an underestimated commercial value. A fictional character ordinarily arises as but one component of a work, but fictional characters such as Sherlock Holmes, Superman, the Ninja Turtles and Mickey Mouse are certainly better known and more valuable than the works in which they originated. It has been argued:
Fictional characters are protected by copyright within the context of the works in which they appear. Together with the arrangement of incidents, the interplay among characters, and the setting, they are elements of a fictional work that is protected against infringement by the copyright statute. A character, however, is a nimble creature. It is not confined to the work in which it first appears, but can be removed from its original context to lead a new and independent life.⑺
An interesting challenge in the field of copyright arises from “a new and independent life” of a fictional character. If a character remains as an element of a literary work, copyright may subsist in the series of words which actually describe the character, and any unauthorized use of the character will fall into an unauthorized use of the work itself (Emphasis in original)⑻ By contrast, if a character steps out of the work in which it is created and into its own life, fictional characters may qualify for copyright protection through “literary works” or “artistic works” constituting protected works, but as discussed below, to some extent copyright protection in this field is still less clear.
United Kingdom
Under the Copyright, Designs and Patents Act 1988, copyright subsists in original literary, dramatic, musical or artistic works.⑼ It is evident that fictional characters qualifying as artistic or literary works will be able to attract copyright protection.⑽ An early case in point is the decision of the House of Lords in King Features Syndicate Inc. v. Kleeman decided under UK Copyright Act 1911.⑾ Although the decision related to the former copyright legislation, its principles are equally applicable to determine the current copyright protection that would be available for fictional characters.
