IP & Art

What is noteworthy in the recent Hallyu fields such as dramas, movies, and entertainment industries is the enormous potential and explosive power of the character industry. One of the ways these works leave a deep impression on the public's mind and continue to do so is the creation, commercialization, and popularization of proper characters.

What is a character? The etymology of the character comes from the Greek words Kharakter (engraved) and kharassein (carved). It is said that the term 'characters' was used by the Greek philosopher Theopratusu in a book in which he composed various types of characters in short prose. As such, the dictionary meaning of a character is a character appearing in a novel or a play, or the personality or image of a character revealed in the content of the work.

However, in the Supreme Court precedent, it was ruled that a character means the shape and name of a fictional or real person or animal that appears through media that the public encounters, such as cartoons, TV, newspapers, and magazines. These are the characters we usually talk about.

So, how can characters be protected as an industry? In case you want to use characters appearing in media that the public encounters, such as plays, cartoon TV, newspapers, etc. This is because, in general, a created character has 'authority' when it has a design form.

However, there are positive and negative theories as to whether or not to recognize the authorship of a character without taking a separate action. Therefore, in terms of legal protection of characters, it is safer to add registration under the Design Protection Act and registration under the Trademark Act. This is because if a character's shape or name is registered as a trademark, it will be protected under the Trademark Act. However, even if it is not necessarily registered under the Design and Trademark Act, it is possible to protect it under the Unfair Competition Prevention Act, regardless of whether it is a real person or a creation, if it acquires 'familiarity' and 'knowledge'.

So, what is the legal basis for protecting characters in Korea? As mentioned above, it can be basically divided into the Design Protection Act, the Trademark Act, the Copyright Act, and the Unfair Competition Prevention Act.

First, if a character is recognized for its copyright as a design, it is natural to be protected under the Design Protection Act. However, in order to receive protection under this Act, it is necessary to go through the registration procedure under the Design Protection Act. Although it is cumbersome to have to go through the registration procedure, it is necessary to keep in mind the registration according to the Design Registration Act from the beginning of the character creation, because it is possible to receive proper legal protection in the case of commercialization work through the character after going through this registration procedure.

And in order to receive protection under the Trademark Act, the shape or name of a character must be registered in accordance with the Trademark Act. Next, in order for a character to be protected by the Copyright Act, it must be within the scope of ideas, emotions, science, and art, and must be creative and expressed, beyond a mere idea itself.

Lastly, the protection of characters under the Unfair Competition Prevention Act. There are two provisions in the Unfair Competition Prevention Act. It is prohibited to use the mark or packaging of a product widely recognized in Korea to cause confusion with the mark of another person, but there are practical difficulties in that it must be widely recognized in Korea. The rest of the rules prohibit the transfer of signs or representations that imitate the forms of signs or representations made by others. In this case, it is not necessary to widely recognize the shape of the character's sign or representation, and furthermore, it can be an effective method in that the character can be protected even if the sign, representation, etc. are not otherwise registered.

In reality, commercialization of characters often bears an important weight, so when commercializing characters such as cartoons and movies, it is necessary to prepare all possible legal protection devices in advance as much as possible and to prepare for future legal disputes.

In this regard, it is desirable to prepare systematically in advance by making the registration procedure under the Design Protection Act and the registration procedure under the Trademark Act manual. To this end, it is necessary to pay more attention to the character business and to do everything possible, and furthermore, it is necessary to properly prepare for future possible disputes by manualizing and systemizing the legal protection of characters in advance.