The Character of a Work of Art as an Independent Object of Copyright: Theory and Practice

The subject of this research is copyright laws regarding the legal protection of characters as independent parts of works of art and the judicial practice of their application, as well as opinions and judgments on the legal nature of these objects that have developed in the scientific literature. It is confirmed that subjects to legal protection are the most memorable characters, which often appear in an independent capacity and begin to be perceived separately from the work as a whole, are independently used as part of other works through creative processing, as part of trademarks and commercial signs drawing potential consumers' attention to the relevant goods and services. In this regard, the problem of a character's protectability separately from the work of art is inevitable. The author explores the development of the copyright law of the post-Soviet period in terms of legal protection of parts of works and their characters and the practice of its application. It is concluded that the legislator comes to the need to establish rules on independent legal protection of certain parts of works of art, including titles and characters, provided they have the same signs of protection that are characteristic of the work as a whole: if by their nature they can be recognised an independent result of the creative work of the author and expressed in an objective form. Unlike previous laws containing an incorrect wording on independent use, the current Civil Code of the Russian Federation directly indicates the independence of the result of the author's creative activity. Confirmed is the thesis that a universal definition of the concept of "character" does not exist since it is an abstract concept that is filled with real content in each type of work. It has been established that any character cannot be identified in isolation from the work as a whole; therefore, it is necessary to distinguish them depending on the type of work. Opinions are criticised in the scientific literature regarding the need to enshrine the category of "source character" in the law since it is necessary to distinguish between the character of a literary work described by the author on the pages of their novel and its embodiment on the screen, which is the result of the creative activity of another person, the director. The author of the article agrees with the opinions in the literature on the need to separate the artistic image and the character of the work itself. He believes that this opinion is true since the character is a creatively independent element of a work, and, if we talk about an audiovisual work, then it is an element of a complex object, which meets the signs enshrined in Paragraph 1 of Article 1240 of the Civil Code of the Russian Federation, the author of which is known, it is a director who embodies the artistic image created by a writer or a screenwriter by selecting an actor of a corresponding type. Studying the updated positions of the Supreme Court of the Russian Federation regarding the legal protection of the character, the author of the article concludes that the presumption of creativity is characteristic only of the work of art as a whole, and it does not work with respect to the character or any other part of the work; the burden of proving that the character is an independent result of creativity lies with the author of the work.

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