Conclusion
　　
　　Copyright is important in protecting character merchandising. Due to the distinction between fictional and real characters, copyright protection available to these two types of character is different.　Copyright can be an effective protection available to fictional characters, but the rights automatically conferred under the Copyright law only protect the expression of a work and not the ideas behind it. It seems clear that a work in which a character appears may attract copyright. However, a character itself may or may not qualify for copyright protection. A character qualifying as artistic works may more readily be protected by copyright. By contrast, a literary character may ordinarily be too close to an idea to attract copyright; in a few cases, a literary character with “qualities or characteristics in itself” may be protected by copyright. Copyright is also important to protect real characters, although real characters are more unlikely to warrant copyright protection than are fictional characters. But a real character generally has the right to prevent the unauthorized promotional use of their persona by bringing a case such as defamation or confidentiality, which is unavailable to a fictional character. It is worth mentioning that copyright protection of character merchandising is limited, whether it is available to fictional characters or real characters.　In this respect, some consideration should be given to the recent development of other jurisprudence.
　　It may be that a simple statutory move to create a character right would be beneficial to copyright protection of character merchandising. However, due to the real difficulty in defining exactly what a “character” is,[79]　characters are not specifically set out, as separate categories of protected work, in the copyright law. In fact, some protections for character merchandising per se, are not in the role or function of copyright where the better resort has to lie in other legal means of protection and vice versa. If taking into consideration the recent developments of other legal means, in particular trade marks and passing off, perhaps we could conclude that, by way of copyright, together with other legal means, the law in New Zealand has moved to protect character merchandising in a relatively adequate manner. [80]
　　
【注释】 Robert G. Howell. “Character merchandising: the Marketing Potential Attaching to a Name, Image, Persona or Copyright Work”. I.P.J. Vol. 6. 1990-1991. Page 198.
Joanna R. Jeremiah. Merchandising Intellectual Property Rights. Chichester: John Wiley & Sons, 1997. Page 1.
Andrew H. Brown. “Character Merchandising” in Intellectual Property Law in New Zealand and Australia. University of Auckland. 1985. Page 149.
For example, the World Intellectual Property Organisation (WIPO/INF/108 December 1994) defined character merchandising as “the adaptation or secondary exploitation, by the creator of a fictional character or by a real person in relation to various goods and/or services with a view to creating in prospective consumer a desire to acquire those and/or to use those services because of the consumers’ affinity to that character.” (Heijo E Ruijsenaars. “The WIPO Report on Character Merchandising” (1994) 25 I.I.C. 532 quoting from Charlotte Waelde. “Commercialising the Personality of the Late Diana, Princess of Wales—Censorship by the Back Door” in Norma Dowson & Alison Firth (eds). Trade Marks Retrospective. London: Sweet & Maxwell. 2000. Page 214) Norman Shapiro described character merchandising as “the marketing of goods and services that embodying of things whose association with any of such goods and services is likely to enhance their popularity and salability.” (Norman R. Shapiro. “Don’t Toy Around—A Look at Character merchandising”. I.P.J. Vol. 1 1984-1985. Page 87.) In Buzzy Bee case, Fisher J. referred character merchandising to “the promotion of goods or services by associating them with a famous character. The “character” may be human, animal or inanimate and may be fictional or non-fictional. The character’s image is usually evoked in the promotion by some form of direct or indirect reference to the character’s name, appearance, sound or description”: Tot Toys Ltd v. Mitchell 1 NZLR 325 at 359.
Charlotte Waelde, supra n 4 at 214
It is argued that the protection of copyright is only relevant to the fictitious character (Holyyoak & Torremans. Intellectual Property Law. 3rd Edition (by Paul Torremans) London: Butterworths. 2001. P554.)
Kurtz. “The Independent Legal Lives of Fictional characters”. 1986 WISC. L. REV. 429,439 quoting from Sheldon W. Halpern and others. Copyright: Cases and Materials. St. Paul: West Publishing Co. 1992. Page 390-391.
Robert G. Howell, supra n 1 at 199.
Copyright, Designs and Patents Act 1988 (UK), sec 1 (1).
Holyyoak & Torremans supra n 6 at 562.
AC 417.
Ch 119, 3 All ER 241 (UK CA).
2 Ch 601 (Ch D).
Anna Kingsbury. Intellectual Property. Wellington: LexisNexis Butterworths. 2002. Page 23.
Andrew H. Brown, supra n 3 at 140.
FSR 145.
Ibid, at 154.
Holyyoak & Torremans, supra n 6 at 562.
Robert G. Howell, supra n 1 at 219-220.
David Vaver. “The Protection of Character merchandising”. 8 Int’l Rev. Indus. Prop. & Copyright L. 541,554 quoting from Steven L. Nemetz. “Copyright Protection of Fictional Characters”. I.P.J. Vol. 14. 1999-00. Page 98.
Sheldon W. Halpern and others, supra n 7 at 391.
Steven L. Nemetz, supra n 20 at 108.
(1930) 45 F. 2d 119 (2nd Cir.), cert. denied, 282 U.S 902 (1931).
216 F. 2d 945 (9th Cir. 1954), Cert. denied, 348 U.S. 971,75 S Ct. 532,99 L. Ed. 756 (1954), (the Sam Spade case).
Supra n 23 at 121.
Joanna R. Jeremiah, supra n 2 at 229.
Supra n 24 at 950.
Ibid.
M. Nimmer, Ninmer on Copyright, (Matthew Bender, 1963-present) at s2.12, at 2-175 quoting from Steven L. Nemetz, supra n 20 at 78.
Steven L. Nemetz, supra n 20 at 78-79.
581F. 2d Cert. denied, 439 U.S. 1132, 99 S. Ct. 1054,59 L. Ed. 2d 94 (1979).
11 U.S.P.Q. 2d 1161 (C.D. Cal., 1989).
Olson v. National BroadcastingCorporation, 855 F. 2d 1446 (9th Cir. 1988).
Steven L. Nemetz, supra n 20 at 108.
Joanna R. Jeremiah, supra n 2 at 224.
Preston v. 20th Century Fox Canada Ltd. (1990), 33 C.P.R. (3d) 242 (Fed. T.D.), affirmed (1993), 164 N.R. 304,53 C.P.R. (3d) 407,76 F.T.R. 26 (noted) (Fed. C.A.).
Steven L. Nemetz, supra n 20 at 101-102.
For in depth analysis, see Steven L. Nemetz, supra n 20 at 98-107.
Copyright Act 1994, sec 120.
Ibid, sec 123(1).
Ibid, sec 2.
Susy Frankel and Geoff Mclay. Intellectual Property in New Zealand. Wellington: LexisNexis Butterworths. 2002. Page 191.
Steven L. Nemetz, supra n 20 at 69-70.
Susy Frankel and Geoff Mclay, supra n 42 at 170.
(1989) 12 IPR 173.
Ibid, at 182.
2 NZLR 490 (CA); 3 NZLR 18 (PC).
AC 112. Lord Wright held: “The company which is complained of is the use of title, and that is too insubstantial on the facts of this case to constitute an infringement.”
Tot Toys Ltd v. Mitchell 1 NZLR 325.
Ibid, at 363.
Ibid, at 364.
Andrew Brown argued that the copyright Acts in both New Zealand and Australia provide probably “the strongest protection” available to protect cartoon characters and line drawings in those cases where a copyist or trader has substantially reproduced the original work. (Andrew H. Brown, supra n 3 at 139.) However, some might be argued that the most powerful means of legal protection of fictional characters might be lie in other legal areas, such as trade marks or passing off. It should be stressed here that copyright is not all story of protection of fictional characters. The main legal means available to fictional characters are copyright, trade marks and passing off. Undoubtedly, there are some areas where copyright does work; whereas, there are others where copyright does not work. For example, a character’s name may too insubstantial to attract copyright; however, an author may be able to restrain others from adopting the character in their works by a passing off action: Exxon Corp. v. Exxon Insurance Consultants International Ltd Ch 119, Hogan v. Koala Dundee Pty Ltd (1988) 83 ALR 187 (FCA). In addition, protection may also be available to a character’s name under the law concerning trade marks:Anheuser-Bush Inc v. Budweiser Budvar National Corporation 3 NZLR 666 (HC). It is worth noting that a character’s name without registering as a trade mark or unqualified for trade marks, has to seek protection under copyright or passing off; if a character could not establish a goodwill or reputation on its name, then the last resort would be copyright.
Peter Bolger. “The Common Law and the Tort of Appropriation of Personality: Part I.” Irish Intellectual Property Review 3 (1): 16-30 (1999) from http://www.lkshields.ie/Publications/documents/ipitecom.htm
Elvis Presley Trade Marks RPC 542,547.
Alan Story. “Owning Diana: From People’s Princess to Private Property”. 5 Web JCLI from http://webjcli.ncl.ac.uk/1998/isuue5/story5.html.
In a recent Canadian case, Aubry v. Editions Vice-Versa SCR 591, where the publication of an ordinary citizen’s photograph without consent violate his or her right of privacy under Quebec law. The Court held that the right to one’s image was included in the right to respect one’s private life in s 5 of Quebec Charter. That seems to open a new way to protect the image of a celebrity. We will discuss this case later.
Joanna R. Jeremiah, supra n 2 at 218.
Susy Frankel and Geoff Mclay, supra n 42 at176.
Copyright Act 1994, sec 2.
Ibid, sec 21(1).
Peter Bolger, supra n 53.
(1998) 80 C.P.R. (3d.) (Ont. C.A.).
William v. Settle 1 WLR 1072.
FSR 32.
Laddie and others. The Modern Law of Copyright and Designs (Vol. One). Third Edition. London: Butterworths. 2000. Page 184-185.
Holyyoak & Torremans supra n 6 at 563.
Copyright Act 1994, Part IV.
Laddie and others. The Modern Law of Copyright and Designs (Vol. Two). Third Edition. London: Butterworths. 2000. Page 1737.
Copyright Act 1994, sec 119.
Susy Frankel and Geoff Mclay, supra n 42 at 253.
Laddie and others, supra n 68 at 1738.
RPC 261.
Holyyoak & Torremans supra n 6 at 563.
J.A.L. Sterling. World Copyright Law. London: Sweet & Maxwell, 1998. Page 418-419, see also Joy Music Ltd v. Sunday Pictorial Newspapers 2 QB 60, 1 All ER 703 (QB).
Susy Frankel and Geoff Mclay, supra n 42 at 255.
SCR 591.
Jamie E Nordhaus. “Celebrities’ right to privacy: How far should the paparazzi be allowed to go?” The Review of Litigation; Austin; Spring 1999.
Susy Frankel and Geoff Mclay, supra n 42 at 255.
Although proposals to identify fictional characters as separate categories of work under the Copyright Act has been considered in both in England and the United States. These proposals have been rejected in both jurisdictions. The Whitford Committer which was set up to review the English law of copyright, said in its report that on the subject of character copyright:

We were urged by variety of bodies to consider the introduction of a “character right” under the copyright law to supplement the already existing copyright in the literary, dramatic or artistic work in which the character features…there would be real difficulty in defining exactly what a “character” is, i.e., in dealing what are the essential features that make the character distinctive and which are therefore worthy of protection…The submissions on this topic…on balance, admitted that the law might be better left as it stands, merely to provide copyright protection only against reproduction of the literary or artistic form, leaving any further protection to proceeding for passing off. (Cmd. 6732 (1977) para. 909 quoting from Steven L. Nemetz, supra n 20 at 69.)

] Torremans concluded that the law in England has moved to protect character merchandising in an entirely adequate manner (Holyyoak & Torremans supra n 6 at 564).

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