Zenius Kang
Under U.S. law, the long-established criterion of copyrightability is one of specificity.[1] As an important aspect of literary works, characters are copyrightable, given that they are depicted with sufficient distinctiveness and originality by the author.[2] It is therefore possible that within the same work, some well-developed characters are copyrightable, whereas others, having no more than symbolic functions, are not.[3] Although fictional characters are necessarily developed through the story being told in the work itself, an infringement may be found even if only the characters, not the plot, are borrowed, because common law has recognized characters and plot as parallel rather than stratified constituents of a work.[4]
The time limitation of copyright certainly applies to the protection of characters.[5] But an interesting question arises there, because characters may be not confined with one single work, but can be reused by the same author to reappear in the sequels. In such circumstances, does the copyrightability of the character terminate along with copyright of the first work in which the character appears, or the last work, or some other rule should apply? The Seventh Circuit addressed this issue in Klinger v. Conan Doyle Estate, Ltd.[6] The court opinion, authored by Judge Richard A. Posner, held that for the same character that has been developed in a series works, if some of those works are already in public domain, then the character is unprotected, but only to that extent of development of the character that is confined within the works in public domain.[7] If, for example, the character has changed name or habit in a subsequent work the copyrighted has not yet expired, that portion of the character is still protectible.[8]
The issue of copyrightability has also greatly drawn legal scholars’ attention, partially due to the case Jin Yong v. Jiang Nan, which has been litigated for nine years before settled in 2025.[9] In the case, the defendant’s work featured the characters borrowed from plaintiff’s multiple novels well-known in China.[10] The names of characters in defendant’s work and their interrelationships, but not specific stories, mirror plaintiff’s works.[11] Such a copying is not regarded as plagiarism but has been understood as fanart; the problem is that defendant made profits from his work, thereby triggering the issues of copyright infringement and unfair competition.[12]
The core copyright issue underlying this case is whether a borrowing of characters, but not plots, constitutes infringement.[13] This question has been analyzed from different perspectives, including right of integrity of the work, substantiality of copying, and cultural implications.
Chinese copyright statute, as does U.S. copyright law, protects an author’s right to prevent his or her work from intentional distortion or mutilation.[14] An imperfect mirroring is plausibly a distortion. The copying of characters, without the plots, is an inexact copying. Therefore, there is a strong claim that such a copying infringes the characters’ original author’s right of integrity of the work.
Also similarly to U.S. law, Chinese copyright law adopts the idea-expression dichotomy, and endorses the rule that whether a copying is illicit copying of protected expressions hinges upon the specificity of the copied materials.[15] But do names of characters, along with their interrelationships, reach the specificity threshold? This is a hard question, and probably the right answer, as is often the case in copyright infringement lawsuits, is that whether the copying is substantial depends on the specific works involved in the infringement claim.[16]
Some scholars, in arguing against copying characters, resort to Chinese cultural history.[17] They observe that many a classic Chinese novel is not work of one author or one era, but is product of accumulated efforts of storytellers and literati of many generations, each building on the work of predecessors.[18] The argument goes, that imitating too closely the western system of copyright law would bereave Chinese culture of this vigor and adaptability derived from the capability of improving or modifying the works of preceding generations.[19] But this argument fails for at least two reasons. First, the underlying characterization of Chinese cultural tradition is simply not accurate. The Chinese word for novel, “xiaoshuo,” originally referred to folklore history, which was invented by and spread among the people, and collected by dedicated officials, called “baiguan,” to keep records of work products reflecting the lives and thoughts of the lower classes.[20] Therefore, in pre-modern China, novels always bore a hue of history, and were not understood as purely literary works.[21] For example, the most famous commentator of The Romance of Three Kingdoms referred to the book as The Records of Three Kingdoms, and argued that it conveyed a historical perspective superior to the officialized history bearing the same name.[22] It is therefore understandable that many earlier novels or stories lacked attribution, because they came from the people, and because in Chinese tradition copying historical works was significantly less prohibitive, in moral standard, than copying literary works.[23] This is also consistent with the doctrine in modern copyright law that copying (representations of) facts is not an infringement.[24] But in modern China, as in the west, novel has been understood primarily as a literary genre rather than history.[25] The status of Chinese novels as literary works thereby justifies the application of modern copyright standards with respect to creative works.
Secondly, although in pre-modern Chinese novels character-borrowing was not an uncommon practice, those borrowings would not have been infringement even if examined under the modern standard of copyright law, because often the two works are separated by far more than a century, and on many occasions the borrowed characters are historical figures rather than original fictional creations.[26] In such circumstances, the potential negative effects later adaptions might bring against the previous works are de minimis, because there were no injured parties, and little danger of incurring confusion or dilution on the previous works. The modern cases are substantively different. For example, in Jin Yong v. Jiang Nan, both parties are contemporary writers, and the plaintiff passed away only less than a decade ago.[27] Even if there were any cultural benefits at all in the practice of generating new stories using old characters, such benefits must be carefully balanced against the harms such practice may inflict upon the characters’ original authors.[28]
[1] Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).
[2] Id.; see also Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54–55 (2d Cir. 1936) (holding that a detailed sequence of events in the story may amount to the author’s copyrightable expression).
[3] See Nichols, 45 F.2d at 122.
[4] Compare Klinger v. Conan Doyle Est., Ltd., 755 F.3d 496, 500 (7th Cir. 2014) (“The copyrights covered the characters because they were original.”), with Warner Bros. Pictures v. Columbia Broad. Sys., 216 F.2d 945, 950 (9th Cir. 1954) (“[I]f the character is only the chessman in the game of telling the story he is not within the area of the protection afforded by the copyright.”).
[5] Klinger, 755 F.3d at 500.
[6] Id.
[7] Id. at 500–03.
[8] Id. at 502.
[9] 方伟彬 吁青 严思敏 [Fang Weibin, Xu Qing & Yan Simin], “金庸诉江南案”著作权及不正当竞争纠纷案在粤达成和解 [“Jin Yong v. Jiang Nan”, Disputing on Copyright and Unfair Competition, Got Settled in Canton.], 中国新闻网 [China News] (Sep. 22, 2025), http://www.legaldaily.com.cn/intellectual_property/content/2025-09/22/content_9260552.html.
[10] Id.
[11] 李俊慧 [Li Junhui], 金庸诉江南《此间的少年》侵权于法有据非倚老卖老 [Jin Yong’s Infringement Claim Against Jiang Nan is Not Frivolous], 法制网 [Fa Zhi Wang] (Oct. 27, 2016), https://news.cnr.cn/native/gd/20161027/t20161027_523225598.shtml.
[12] Id.
[13] 刘银良 [Liu Yinliang], 文学角色的版权保护：以“金庸诉江南案”为例 [Copyright Protection on Characters in Literature: Exemplifying “Jin Yong v. Jiang Nan”], 133 中国版权 [China Copyright] 36, 36 (2024).
[14] Zhonghua Renmin Gongheguo Zhuzuoquan Fa (中华人民共和国著作权法) [Copyright Law of People’s Republic of China], art. 2, cl. 10 (promulgated by the Standing Comm. Nat’l People’s Cong., Sep. 7, 1990, effective June 1, 1991, revised July 14, 2020), P.R.C. President Ord. No. 31; cf. 17 U.S.C. § 106A(3)(A) (affirming author’s right to prevent work from intentional distortion by others).
[15] Zhang Xiaoyan Su Lei Xianhe, Zhao Qi, Shandong Aishuren Yinxiang Tushu Youxiangongsi Zhuzuoquan Qinquan Jiufenan (张晓燕诉雷献和、赵琪、山东爱书人音像图书有限公司著作权侵权纠纷案) [Copyright Infringement Dispute: Zhang Xiaoyan v. Lei Xianhe, Zhao Qi, and Shandong Aishuren Co., Ltd.], promulgated by Sup. People’s Ct. Guiding Case No. 81, 2014; cf. Klinger v. Conan Doyle Est., Ltd., 755 F.3d 496, 502–03 (7th Cir. 2014) (“The more vague, the less ‘complete,’ a character, the less likely it is to qualify for copyright protection.”).
[16] Cf. Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930) (“Nobody has ever been able to fix that boundary [between idea and expression], and nobody ever can.”).
[17] 李琛 [Li Chen], 文学角色借用的文化价值与法律评价—-兼评“金庸诉江南案”判决 [Cultural Significance and Legal Evaluation of Borrowing Characters in Literature––With a Commentary on “Jin Yong v. Jiang Nan”], 134 中国版权 [China Copyright] 84, 85 (2024).
[18] Id. at 85–88.
[19] Id. at 87, 90.
[20] 班固 [Ban Gu], 漢書 [The Book of Han] 1745 (中華書局 [Zhonghua Shuju] 1964) (92).
[21]See generally 魯迅 [Lu Xun], 中國小說史略 [A Brief History of Chinese Novels] 1–9 (3d ed. 1926) (reporting the inclusion of titles of novels in official histories).
[22]毛宗崗 [Mao Zonggang], 讀三國志法 [The Method to Read The Records of Three Kingdoms] (1644), https://zh.wikisource.org/zh-hant/%E4%B8%89%E5%9C%8B%E6%BC%94%E7%BE%A9/%E8%AE%80%E3%80%8A%E4%B8%89%E5%9C%8B%E5%BF%97%E3%80%8B%E6%B3%95 (last visited Mar. 20, 2026).
[23]Contrast 劉知幾 [Liu Zhiji], 史通 [Shi Tong] 97 (梁溪圖書館 [Liangxi Library] 1926) (710) (emphasizing collection of materials from various sources as a necessary job for historians), with 陸機 [Lu Ji], 文賦 [Wen Fu], in 2 昭明文選 [Zhao Ming Wen Xuan] 761, 767–68 (上海古籍出版社 [Shanghai Guji Press] 2010) (658) (maintaining that one’s work, even if original, should be forgone, if found to be similar to previous works).
[24] Feist Publ’ns v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 347–48 (1991).
[25]鲁迅 [Lu Xun], 中国小说的历史的变迁 [Historical Evolution of Chinese Novels], in 9 鲁迅全集 [Complete Works of Lu Xun] 311, 311 (人民文学出版社 [Renmin Wenxue Press] 2005) (1924).
[26]See, e.g., Lu, supra note 21, at 167–199 (elaborating on The Journey to the West, its precursors, and its derivative works).
[27] Jin Yong: The ‘Tolkien of Chinese literature’ dies at 94, BBC (Oct. 31, 2018), https://www.bbc.com/news/world-asia-china-46040266.
[28] Cf. U.S. Const. art. I, § 8, cl. 8 (suggesting that to promote the progress of science and arts, copyright should be exclusive while limited in time).