On the legal interpretation and protection of literary roles in China

The final judgment in 2023 of the case There They Were once again triggers the legal community of China to reflect on the protection of literary roles and the boundary of fan literature creation. Fan literature can be divided into dependent and independent derivative fan literature. Judicial practices of China misunderstand the essence of fan writing, and confuse the protection of role-making with the protection of a role after it is appropriated. The difficulty of protecting literary roles is mainly the protection of role names, so the determination of role names is key to their protection. But the role name itself neither meets the criterion of a work protected by copyright law nor belongs to the name or designation in civil law’s personality rights, nor does it naturally have the purpose or function of a trademark. So the best way to protect the literary role name is to establish a merchandising right, and the limitation of such a right must be set up simultaneously.