(By Albert Chen) When the character in a film or television work satisfies the originality element, it could constitute as an independent work under the Copyright Law. But in that situation, the right holder of the film and television work could not necessarily claim the copyright over the character in it, and any infringement against the character shall be fought back by its designer or the licensee of the designer.
In 2009, China Shanghai Character License Administrative Corporation (“SCLA” hereinafter) gained the exclusive license from Tsuburaya Company for Ultraman Diga’s reproduction rights, distribution rights, rental and merchandising rights, and as well as the right to relicense the above rights within the territory of mainland China. After that, SCLA found that Hubei Xinyijia Supermarket Co., Ltd. ( “Xinyijia” hereinafter) has been selling out the Ultraman Diga toys, and thereafter SCLA filed their lawsuit in the court.
After the first instance court took the case, the question that whether Ultraman Diga’s image could considered as protected work under the Copyright Law and whether SCLA could claim copyright over it became the key issue in the case. Regarding this, the first instance court ruled that the image of Ultraman Diga has achieved originality under the law, and thereby is protected as a fine art work. However, SCLA failed to demonstrate the origin of its copyright, and based on this, the court refused all SCLA claims.
After the ruling, SCLA appealed to Hubei Higher People’s Court (“Hubei Court” hereinafter), which concluded the focus of the dispute as follows:
1. Could the image of Ultraman Diga be an independent work and used independently?
The image of Ultraman Diga’s design was based on the human shape, but with exaggerating lines in eyes, head and face. The aforesaid element has achieved the requirement of originality, and therefore the image of Ultraman Diga could be deemed as work protected under the Copyright Law. On the other hand, despite the only regulation in China’s Copyright Law that the “drama” and “music” in the film and television work could be used independently, “character image and the use of this image as judged within the film and television work are a part of the overall production, and these two parts could be objectively divided.” For this reason, Ultraman Diga’s image is work that could be independently used.
2. Does the copyright holder of film and television work holds the copyright over the characters in the work?
According to the laws and regulations, the copyright of the film and television work shall be the property of its producer, which means the copyright of the overall film and television work shall be exercised by the producer. However, the law also regulates that the work holder has the right to exercise its right over his/her work. But as described above, the character image is considered an independent work, and for this reason, the producer has no right to claim rights over the character image of Ultraman Diga.
Based on this, the second instance court dimissed SCLA’s appeal.
The ruling in the case clarifies the relation and ownership of rights between the film and television work and the characters in it. For this, the author would like to make the following conclusion:
1. The character image in the film and television work is independent work and its rights could be independently exercised.
Although Article 15 in the Copyright Law only provides that the drama and music in film and television works could be considered independent work, and its copyright interest may be exercised alone, in reality, as stipulated by the general copyright theory, any content satisfying the following conditions could be considered as copyrighted work:
(1) Must be the product of human creation;
(2) Others must be able to objectively verified its existence;
(3) Its expression must be original.
Hence, once the character image in the film and television work meets the above three conditions, it would become lawful object under the copyright law. To further consider the definition in the copyright law on the rights concerned, such character images would be protected as fine art work. At the same time, since this confirms that character images could be the object under the copyright law, its right holder can freely exercise its copyrights.
2. The character image copyright belongs to its author, but does not belong to the owner of the film or television work
Since character creation is an independent work, the character image’s copyright shall be of the man who finished the image creation. However, once the creator licenses the image right for film and television work production, there would seem to be a conflict between the character image copyright and the overall work copyright. In other words, the question is whether film and television work right holder could solely exercise the image copyright like its author.
According to the current Copyright Law, the producer could exercise the copyright of the overall work, but the copyright described herein shall mean the right for the whole work. In other words, for any parts which could be considered as independent work, the producer does not own the right over it, but rather the copyright belongs to its creator.
In closing, once the licensee of the film and television work would like to claim the rights over the drama, music and character image individually in the overall work, it shall seek the consent for such parts from the author of the individual work.