Market players in commercial promotion may broadly employ characters besides pictures, images, etc. To attract consumers the designer, prefer to make some design to the character rather than using the ordinary fonts to make it look more pleasant and eye-catching.
Could such design to characters be protected by copyright law in China?
According to the Copyright Law, works can be classified as follows:
1. written works;
2. oral works;
3. musical works, operatic and dramatic works, works of quyi, choreographic works and acrobatic works;
4. works of fine art and architectural works;
5. photographic works;
6. cinematographic works and works created by a process analogous to cinematography;
7. graphics works such as drawings of engineering designs, drawings of product designs, maps, schematic drawings, etc., and three-dimensional model works;
8. computer software;
9. other works as stipulated in laws and administrative regulations.
Obviously characters cannot be ascribed as any other work except fine art. In judicial practice, all the claims for characters were based on “fine art”, and all disputes were over whether the character is “fine art” work.
In the high-profile case the Founders vs. the Blizzard regarding the GBK font, Beijing High court followed the previous practice, holding the view that each GBK font constitutes calligraphic art from the point of view of aesthetics, and thus is regarded as fine art work under the Copyright Law”. The Supreme Court overturned the ruling in the second instance trial by holding different opinion that the fonts in computer is composed of command order and relevant data instead of flat or three-dimensional fine art structured by lines, colors or any other format with aesthetics , and cannot be ascribed to fine art under the Copyright Law.
Although in two cases heard by Nanjing Intermediate Court and Jiangsu High Court, Hanyi vs. FrogPrince and Hanyi vs. Xiaobaoxi, the Xiuying font concerned were confirmed as fine art work, the font was more unique compared to previous ones. Some strokes were heart-shaped and some are leaf-shaped, and the hard angles were changed to curves.
It can be concluded that whether a character can be protected under copyright depends on whether it is aesthetic. As illustrated in Implementation Rules of Copyright Law, “Works of fine art refer to two-dimensional or three-dimensional works created in lines, colors or other media which, when being viewed, impart aesthetic effect, such as works of painting, calligraphy and sculpture.”
To seek the IP protection to any character logo in commercial use, apart from by way of trademark, copyright will be another option especially when the trademark cannot be registered. Though the filing of copyright is not a precondition for protection, it will put the owner in a more favorable and proactive position when there is any dispute or a litigation. Given the controversy over whether a character or font can be regarded as fine art work, it is advisable to seek professional opinion and the professionals on IP law to review before filing.