In Preston v. 20th Century Fox Canada Ltd., [36]　the Canadian court had to deal with the question of copyright in a fictional character. In this case, the plaintiff commenced an action for infringement of copyright in its literary work being a script entitled “Space Pets”, and a furry character in the work called an “Ewok”. However, the court was not satisfied that the defendants produced, reproduced, or adapted in substantial part, the script “Space Pets” in the film, “Return of the Jedi”. In particular, the court concluded that “the characteristics set out in the script do not delineate the character of the Ewok sufficiently distinctly to warrant recognition as a character subject to copyright” and “the character of Ewok as developed in the script ‘Space Pets’ is not in itself subject to copyright”. Steven L. Nemetz identified the significant meaning of the Preston decision as follows:
　　First, it represents the first time that a Canadian court has expressed its willingness to protect copyright in a literary character, as such. Second, it marks the first time that Learned Hand J.’s famous dictum from Nichols on the copyright of characters has been referred to in a Canadian decision. Third, the Court adopted the Nichols “character delineation” test as the basis for recognizing a literary character as being subject to copyright. [37]
　　It was suggested that in Canadian jurisprudence copyright protection would be available to pictorial characters, but with respect to literary and dramatic human-type characters the law was less clear. As to the latter, the developed American jurisprudence is beginning to be considered by Canadian courts.[38]　
　　New Zealand
　　Under the Copyright Act 1994 (Hereinafter the 1994 Act), to qualify for copyright protection, a person must establish that, as an initial step, first, a product or object in question falls into a category of works protected under sec 14 of the 1994 Act; second, the work is original under sec 14; and third, he or she enjoys ownership of the copyright in the work.[39]　In some circumstances a licensee also may bring an action for infringement of copyright.[40]　
　　Usually, a fictional character will attract copyright protection as a literary, dramatic, or artistic work. Of these three, artistic works are more effective means to provide copyright protection for fictional characters. Sec 2 of the 1994 Act defines “artistic work” as follows:
　　“Artistic work”
　　 (a) means---
　　(i) A graphic work, photograph, sculpture, collage, or model, irrespective of artistic quality…
　　(iii) A work of artistic craftsmanship, not falling within subparagraph (i) or subparagraph (ii) of this definition…
　　In practice, the category has been extended to cover a wide range of items used in industry, including drawings, diagrams and plans as well as three-dimensional objects. It seems clear that cartoon or fictional characters may fall within this category to attract copyright. Subject to sec 29 (2) of the 1994 Act, infringement of copyright can relate to the work as a whole or any substantial part of it, and either directly or indirectly. In this respect, the definition of “copying” in the 1994 Act explicitly includes two-dimensional to three-dimensional copying and vice-versa.[41] These provisions are very important for the merchandising of fictional characters and a merchandiser can rely on them to protect an industrially manufactured product from being copied.
　　It is worth mentioning here that the 1994 Act provides that all works must be original. This differs from most jurisdictions, particularly from the UK.[42] However, there are no significant differences under the respective provisions between the UK, the United States, Canada and New Zealand relative to fictional characters[43]　and, therefore, those jurisdictions’ case law are highly relevant.[44]　The same seems true of real characters.
　　A starting point to analyze New Zealand decisions in this area is Wilson v. Broadcasting Corporation of New Zealand.[45]　In this case, Wilson developed the concept of a television series into a feasibility study, in which the central characters were a physically disabled adolescent boy and girl, who together performed heroic and magical acts in a generalized confrontation with evil forces. Jeffries J. held that the feasibility study was protected as a dramatic work, and that “it was not in the realm of unprotected ideas.” Exactly, this case is not a fictional characters’ case. Although the substantial part of the feasibility study was two puberty-aged disabled children, what qualifies for copyright protection was the feasibility study rather than two disabled children. In this case, the defendant might copy the characters of the feasibility study without an infringement because the characters were “a simple enough idea expressed in that way”. What resulted in an infringement was that “the roots of the defendant’s programme go straight back to plaintiff’s feasibility study of March 1980.”[46]　
　　In fact, when an author creates a character, he or she does not thereby acquire copyright in the character. An author cannot, by copyright, restrain others from using the word or words constituting the character’s name, or writing books or plays containing the same character. After all, a character is not a “work”, but merely an idea. This is illustrated by Green v. Broadcasting Corp. of New Zealand.[47] In this case, Green was the author, producer and composer of a television talent quest produced and transmitted in the UK under the name “Opportunity Knocks”. In 1978 the defendant produced and transmitted in New Zealand a similar show under the same name, which was alleged to infringe Green’s copyright in the title “Opportunity Knocks”. The High Court Judge held that there was no copyright in the title, and on appeal, Somers J. regarded this finding as inevitable in light of Francis Day & Hunter v. Twentieth Century Fox Corp. Ltd.[48]　That is to say, a character’s name or title may be too insubstantial to constitute a literary work. Obviously, it is not an infringement merely to reproduce the character’s name, even though the character may be an important element in the story.

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