Abstract:
Even though fictional character is only one component of literary works, some fictional characters, especially ones with distinct and unique characters, can be recognized separately from the original work they first appeared and can then be commercialized in various forms. Thus, fictional characters become valuable commercial properties in todays business world. Unsurprisingly, some traders misappropriate fictional characters for their own commercial benefit which adversely affect an interest as well as a legitimate right of the authors. This research has been conducted to study laws relating to the protection of fictional characters of both the United States of America and Thailand so as to seek for the appropriate forms to provide legal protection for fictional characters in Thailand against the commercial misappropriation. In addition, the study included the survey of opinions of authors who are creators of fictional characters in literary works. The outcome shows that fictional characters could be protected in the context of both Copyright law and the Civil and Commercial Code regarding wrongful acts. The authors have two legal grounds in order to bring the cases to the court. Firstly, by the doctrine of moral right under the Copyright Act B.E. 2537, Section 18 whereby the authors have to prove that the use of their fictional characters would prejudice against their honor or reputation. Secondly, by the doctrine of abuse of rights in wrongful acts under Section 421 of the Civil and Commercial Code, whereas the exercise of ones right shall not cause any effect or injury to the others. However, not all fictional characters in literary works shall be protected under the law, but only the one which (1) is distinctly delineated (2) constitutes the story being told (3) is well developed , and (4) is outstanding and unique, shall be protected. Therefore, the enactment of sui generic law to protect fictional characters achieving all the four elements is not necessarily needed since such law could somehow create an overlap on the effectiveness of the existing laws in relation thereto.