Conditions for the Protectability of the Character of a Work of Art

The study examines laws on intellectual property in terms of the legal protection of characters as independent elements of works of art, the judicial practice of their application, as well as the doctrinal judgments about the legal nature of such characters. The most memorable characters that often act as independent results of artistic creativity and are used as part of other works, trademarks and brands, attracting potential consumers' attention to relevant goods and services, are subject to legal protection. In this regard, the problem arises of protecting such a character separately from the work itself. The article provides an assessment of the doctrine of "substantial similarity" existing in US law. The doctrine is based on Krofft's "two-step verification" that assesses the "standard of identity": the courts establish how high the degree of a character's creative expression is in term of its originality. Russian judicial practice has developed a similar condition for the protection of a character in case of its independent use-"recognition". This condition does not follow from the content of the law and is the product of judicial practice exclusively. The author considers the opinions on the identity of the categories "recognition" and "originality" available in the literature to be erroneous. Originality is understood as the uniqueness of the result of intellectual activity, that is, creative results are original if they are not repeated in parallel creative activities of persons working independently from each other. Recognition of a character is one of the manifestations of its originality as a result of independent creative activity. The author comes to the conclusion that only the image of a character can have the property of objective recognition, its external visualization in an objective form (graphic, three-dimensional, spatial or other), which allows the public to perceive and "recognize" it separately from the work. As a result of the research, an original interpretation of the character of a work of art was formulated. The character of a work of art is an outwardly visualized image describing a fictional person; it is the result of intellectual creative activity expressed in an objective form that allows using it (the character) in civil circulation regardless of the work of which it is a part.

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