Can a Game Character Itself be Protected as a Copyrighted Work Separated from Its Original Work As a Whole?

This is an issue arising from an international IP dispute between Konami, a well-known Japanese game production company, and Neople, a Korean game production company.  Back in 2007, Konami alleged that game characters in Neople’s game titled “Shin-Ya-Gu”(New baseball) infringed Konami’s copyright in its famous baseball game “Jikkyou Yaku”(see the picture.  the left image is Konami’s character and the right one is Neople’s) and filed a copyright infringement lawsuit to a Korean court.

The lower courts had overruled Konami’s claim stating a game character itself could not be protected as a copyrighted work under Korean copyright law unless such character had been commercialized independently.

This year, however, the Supreme Court of Korea dissented from the lower courts’ opinion.  The Supreme Court ruled a game character can be copyrighted separated from its original work, a game.  The court held that “In order to be protected under the copyright law, a work must be a creative work expressing human thoughts or emotions. Thus, in case of a character implying shape and name of person, animal and so on appearing in cartoon, television, movie, newspaper, magazine and so on, if the creative personality was shown in the visual expression as to the appearance, action of such person, animal, then such character can be a work as protected under the copyright law, apart from its original work”.  Then the Supreme Court continued to held that  “the defendant’s game character was designed to express a baseball player or a referee characteristically so that they could show cute images like cartoon characters, and thus, it possessed the element of creativity as required by the copyright law. This is a work with creativity and is subject to protection under the copyright law, apart from the game which is an original work, and the issue of whether the above defendant’s character was commercialized is not a matter to be considered in determining protection in accordance with the copyright law”.

But, although Supreme Court sided with Konami’s allegation that its game character is a copyrighted work, the Supreme Court concluded that Neople(defendant)’s character did not infringe Konami’s copyright on the ground that the characteristic in Konami’s game character had been commonly used in expressing characters like children of cute image in cartoon, game, doll before the Konami’s character was made.  Thus, it cannot be said that the creative expression between two characters is substantially similar to each other merely based on the similarity as seen above.  And also, there are major differences in the features and look of face, concrete design of shoes.

This case has great significance as the court acknowledged copyrightability of game character regardless of its independent commercialization.  Konami lost this case in Korea.  But this is not because their game character has no copyright protection under Korean copyright law, but because court could not find any substantial similarity between two characters.

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© 2010 Mr. Wonil Chung, a Korean Entertainment Lawyer/Chung & Partners, a Korean Law Firm.  All rights reserved.  Some copyrights, photos, icons, trademarks, trade dress, or other commercial symbols that appear on this post are the property of the respective owners.

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