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The cartoon image infringing Problems of

Author: YangYi WangZuo WangGangYi From: www.yourpaper.net Posted: 2010-06-02 07:25:34 Read:
[Abstract] In this paper, the author personal behavior and commercial use animation cartoon image image behavior analysis of the infringement identified, so as to distinguish between fair use and infringement the use of two types of behavior, make a point to practice the legitimate use of the cartoon image. According to the countries in the protected mode of the cartoon image analysis, the proposed changes to and expansion of the "Copyright Law" "Copy" and "issue" laws provisions, in order to better assist resolve disputes practice.
[Key words] cartoon image cartoon image infringement commercialization rights of copyright

In practice, many individual users for the use of the cartoon image would constitute a violation of the rights of the legitimate rights of the cartoon image exists confusion. In business, unauthorized unauthorized use of cartoon characters or celebrity portraits adapted into anime image the commercial operations infringement lawsuit also continue to unfold. Therefore, we should first clear the cartoon image of the legality of the actions areas to explore what kind of protection is the most effective method for the protection of the legitimate rights and interests of the cartoon image rights.

A cartoon image of infringement Overview
1.1 cartoon image infringement concepts and features
Cartoon image, also known as the cartoon image of the virtual character is manifested by the two-dimensional plane or three-dimensional art practices, the image of the animal or other object, identifiable, replicability, and strong application characteristics .
The cartoon image infringement is without the cartoon image of the legitimate rights of authorized and unauthorized use of the cartoon image engaged in commercial activities profitable, or distorting the image of the original animation, tampered with, so as to damage the image of the animation violations. The tort has the following characteristics:
(1) there is unauthorized use or damage of violations of the cartoon image.
(2) for the purpose of commercial gain or damaged the image of the original animation.
(3) causing damage to the facts of the legal cartoon image rights holders.
The 1.2 animation image infringement rights violations species
Cartoon image mainly related to the infringement of copyright, the commercialization of the right of portrait. Cartoon image has a strong identifiable physical characteristics. When in the case of unauthorized copy reproduction, it may infringe the copyright of the original cartoon image rights holders. The commercialization rights the emergence of a new intellectual property rights in the modern economic and social, it refers to rights through the commercial use of their name, image and works created role, signs that the economic benefits of the right. [1] which include the use of real characters, including the use of virtual characters, such as the work's title, characters. Cartoon image commercialization rights in addition to the right to their own use, and authorize others to use the cartoon image to achieve broad commercial interests. Therefore Unauthorized use cartoon image, is also likely to constitute a violation of the original cartoon image rights commercialization rights. Only in our country, commercialization rights not as a separate kind of right is required.

The 2 cartoon image infringement finds
2.1 infringement of personal use cartoon image behavior identified
(1) No consequences of the damage. No damage to the consequences of the use of cartoon characters, are usually out of personal admiration, learning the purpose of the study and use of the cartoon image, not the cartoon image of the copyright holders of any property rights or personal rights damage. Such acts and after the existence the economic rights consequences of the damage "," there are moral rights consequences of the damage "in stark contrast to the two types of behavior. Typical consequences of the damage behavior of copying cartoon image, Download cartoon image, the image of the generic animation toys, personal admiration cosplay, to change cartoon image, spread a small amount of classroom teaching or scientific research, teaching or research staff [2]. The use of such cartoon image of behavior are in line with the principle of "fair use" of the "Copyright Law" and is therefore not illegal. Without the consequences of the damage, let alone subjective fault, to determine in accordance with the infringement determination of the constituent elements, such personal use cartoon image of the act does not constitute infringement.
(2) economic rights consequences of the damage. This economic rights consequences of the damage there are two cases, one is individual users through the use of the cartoon image of certain property interests, the property interests of the copyright owner in relation to a decrease in relative, another individual users Although it is not profitable, but the behavior of the property interests of copyright holders toll. Of course, it is important to note that this personal economic rights caused by the use of the cartoon image damage the consequences behind commercial use the cartoon image brought about by the economic rights compared to the consequences of the damage is extremely small, and therefore to distinguish between individual behavior and commercial use behavior. The typical behavior of colleagues Contributor, cosplay fees performances, sold the avatar works (including works of two-dimensional, three-dimensional works, toys, cosplay photos, etc.), personal distribute cartoon image. Although such behavior is beyond the scope of "fair use", the illicit nature. But the damage caused by the fact that they have not yet reached the extent of damage required in tort factor, because the damage to the interests of this property is extremely small, not only will not have a material adverse effect on the potential market value of the cartoon image [3 , but also play a role in the promotion of the cartoon image works. Therefore, such conduct did not constitute infringement.
(3) there are moral rights consequences of the damage. The typical behavior is prejudicial to the moral rights spoof cartoon image. Spoof cartoon image violated one of the moral rights protect the integrity of the work, its illegality is indisputable. The fact of the damage is more serious loss for the public understanding of the original cartoon image distorted, damaged the image and reputation of the original cartoon image in the public mind, such damage might be more valuable than property interests. The causal relationship between damage to the facts and violations is also very obvious. Spoof there must be a subjective fault, spoof human operator, after reflection, put into practice in order to complete the distorted, tampering process. Therefore, spoof deliberately subjective distortion, mutilation of the original cartoon image. In summary spoof cartoon image of the behavior of an infringement. Only for personal use spoof of the adverse impact and scope is very limited, so the practice is not much to be held tort liability.
2.2 commercial use cartoon image Infringement identified
Commercial use cartoon image and personal use cartoon image somewhat different, commercial use of cartoon characters based on the economic benefits for the purpose, they receive the economic benefits go far beyond personal use cartoon image of the economic benefits that may be obtained, and its spread the scope is broader than the range of personal use, that can be caused by more far-reaching impact. Therefore, once this unauthorized commercial use, it will cause significantly adverse effect on the rights of the copyright owner of cartoon image.
(1) personal use evolved commercial use. Previously mentioned personal use a variety of behaviors, once formed a large area of ??the operating mode of industrialization, the field of personal use into the field of commercial use. Has a direct causal relationship between the unlawful conduct and the damage facts. Subjective, they also have subjective fault, a large number of sales practices is a self-conscious behavior, we can say that the actors purpose With intent, eager to obtain high profits mentality unauthorized unauthorized distribution activities . Therefore, access to the commercial operation of personal use of cartoon image is an infringement.
(2) common commercial use. The behavior of the common commercial use cartoon image of the main issue of the cartoon image carrier, using the cartoon image advertising, packaging, cover, trademark, produce sales cartoon image derivatives and Internet animation image products. These commercial use of the cartoon image, serious violations to the commercialization rights of the copyright holders of the original cartoon image [4], but our country is not yet right to commercialization clearly defined copyright infringement, we can only identify these behaviors illegality. Commercial use cartoon image provide the user with substantial property interests The interests of the All or part of the cartoon image of the copyright holder, the copyright holder of the cartoon image cause serious damage to the facts of the property interests. The facts of this damage is due to the cartoon image of unauthorized commercial use of the user behavior result, there is a direct causal relationship between the unlawful conduct and the damage the facts. The same time, the commercial purpose of the cartoon image is obtained by means of the effect of the cartoon image to substantial economic benefits, the user has the subjective intent. Therefore, unauthorized unauthorized use of the cartoon image of business conduct is an infringement.
(3) spoof commercial use. The adverse impact of the commercial use of spoof spoof than personal use is much more serious. For example, there have been a network Olympic Fuwa Avatar into a Super Girl Avatar serious damage to the public image of the Olympic mascot. Commercial spoof cartoon image of acts of infringement identified with the previous personal use the spoof animation image infringement identified as the same, the only difference is that commercial spoof of the original cartoon image damage is much more than individual users spoof In practice, the commercial spoof is usually will be held tort liability. 3 cartoon image of the legal protection
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