I. Introduction

On September 18, 2024, Nintendo Co., Ltd. and The Pokmon Company (the "Plaintiffs") filed a patent infringement lawsuit against Pocket Pair Co., Ltd. (the "Defendant") asserting that the Plaintiffs' patents were being violated by the Defendant's development and sale of the video game, "Palworld." Although many people believed that the designs of the characters and settings in Palworld seem similar to Pokmon, in this lawsuit, the Plaintiffs only claimed patent infringement and not copyright infringement for such similar designs.

Why did the Plaintiffs not claim copyright infringement? One of the reasons may be the limits of character protection in Japan. This article will give an overview of the concept of character protection in Japan and the recent court cases involving this legal doctrine.


II. The Idea-Expression Dichotomy

The Copyright Act of Japan protects "works," and a character must qualify as a "work" to receive protection thereunder. Article 2(1)(i) of the Copyright Act defines a "work" as "a creatively produced expression of thoughts or sentiments that falls within the literary, academic, artistic, or musical domain." Therefore, a work must be an "expression" and not a mere idea, which is not a work that is entitled to protection under the Copyright Act. This difference is known as the "idea-expression dichotomy."

The characters in novels, comics, video games and other media are fictional creations. As fictional creations, the names, personalities and backgrounds of such characters are merely "ideas," not "expressions." Therefore, from the perspective of the idea-expression dichotomy, the characters themselves are generally not considered "works," and thus, are not protected by the Copyright Act. To explore this concept in more detail, we should consider the difference between fictional characters and fanciful characters.


III. Fictional Characters and Fanciful Characters

Characters can generally be classified into three types: those that appear in novels (i.e., fictional characters), those that appear in comics, anime and video games (i.e., fanciful characters), and those based on real-life people.1 This section will focus on whether there are differences in the protection of the first two categories: fictional characters and fanciful characters under the Copyright Act.


1. Fictional Characters

It would seem that the idea-expression dichotomy may not apply to characters in novels because their characteristics are specifically "expressed" in the text and, therefore, they would seem to be protected as a "work" under the Copyright Act. However, this is not necessarily the case. Take Harry Potter as an example. Each of the specific expressions of Harry in the novel is a work protected under the Copyright Act. On the other hand, the character itself, which can be summarized as "a boy with black-rimmed glasses and a lightning-boltlike scar on his forehead" or "the boy's parents were wizards and killed by a dark wizard immediately after he was born," is merely an idea that is not protected.


2. Fanciful Characters

Unlike a character in a novel, the appearance of a character in comics, anime or a video game is "expressed" visually through images and illustrations. The visual appearance of a comic, anime or video game character is central to the character's formation, and there is no dispute that the Copyright Act protects such pictorial expression of a character. However, the essence of the character itself, which is formed through the entirety of a comic, anime or video game rather than the specific visual expressions therein, is merely an "idea" and not an expression. Therefore, like a character from a novel, this aspect of a character from a comic, anime or video game is not protected under the Copyright Act. This interpretation has been upheld in various court judgments.

In the Popeye Character Case,2 a copyright infringement claim arose due to the defendant's sale of ties decorated with an illustration similar to Popeye, the main character in a comic created by Elzie Crisler Segar, et al. The court found that the illustration on the ties constituted copyright infringement because it copied the specific picture of Popeye in the comic. On the other hand, regarding the character of Popeye himself, the court stated as follows:

His character, "a sailor who wears a sailor hat and sailor costume, has a sailor's pipe in his mouth and an anchor tattoo on his arm, and eats spinach to gain superhuman strength, and is named Popeye or POPEYE[,]" was "not a specific comic expression but the particular idea that the comic artist tried to give through each comic. Therefore, it is not an external expression that is separate from the individual concrete comic[.]"

The court's decision clearly illustrates the idea expression dichotomy..3 As described above, fanciful characters are similar to fictional characters in that the character itself is not recognized as a work. However, fanciful characters are different from fictional characters in that the specific appearance of a character in a comic, anime or video game is protected as a work.


IV. Protection of Characters under Laws Other than the Copyright Act

In addition to the Copyright Act, the Trademark Act and the Unfair Competition Prevention Act may provide protection to characters in Japan.


1. Trademark Act

The Trademark Act of Japan only covers registered trademarks. Under Article 37 thereof, the use of a registered trademark, or any trademark similar thereto, in connection with the designated goods or services, or goods or services similar thereto, is deemed an infringement of the trademark right. As a "trademark" means "any character [letter], figure, sign or three dimensional shape or color, or any combination thereof; or sounds," it cannot protect the fictional or fanciful characters themselves. However, trademark protection is beneficial for the protection of the character's name, which is not protected under the Copyright Act. Additionally, trademark registration of a character design can prevent competitors from using the design. For example, the name or image of "Pikachu," which appears in the Pokmon video game series, has been registered in connection with not only home video game consoles (or programs) but also various products and services, including clothing and soft drinks.


2. Unfair Competition Prevention Act

Even if not protected under the Copyright Act or the Trademark Act, if the indication of goods or a business is well-known among consumers, it is illegal to create confusion by using an indication that is identical or similar to such well-known indication (Unfair Competition Prevention Act, art. 2(1)(i)). The act of using an indication of goods or a business that is identical or similar to another person's famous4 indication of goods or a business is also illegal (Id., art. 2(1)(ii)).

Although the Unfair Competition Prevention Act does not protect the characters themselves, once a character becomes well-known or famous, not only the character design but also the character name will be protected. Since Article 2(1)(iii) thereof further stipulates that it is illegal to transfer goods that imitate the form of another person's goods, the said law is also helpful in protecting character products, such as dolls or figures.


V. Recent Cases Concerning Characters

To illustrate the above, the recent court cases concerning characters are briefly described below.


1. Dragon Quest/Luca Case5

This case concerns the name of a character. The plaintiff was the author of a novel based on the RPG video game "Dragon Quest" released by Square Enix and had come up with the name of the main character (Luca) in the novel. The plaintiff claimed that the defendants violated the plaintiff's copyright because the defendants used the same name of the main character in the plaintiff's novel (Luca) when the defendants created a movie based on the said game.

In denying the copyright infringement, the district court and the Intellectual Property High Court ruled as follows: "It is rational to interpret that the name of a person is not a work because it is a symbol used to identify that person, and it cannot necessarily be considered to be a creatively produced expression of thoughts or sentiments, nor can it be considered to fall within the literary, academic, artistic or musical domain."

The above Luca case clarified that character names are considered mere symbols and not works under the Copyright Act.


2. Chinese Online Game Case 6

This case concerns the similarity of characters that appear in online games. Although several characters were the subject of this litigation, the court ruled that "if the only thing in common is something other than the expression, like the idea, it is understood that the defendant's images do not constitute a copy or derivation of the plaintiff's images." Based on this rule, the court found that the image of one of the characters contained a similarity in expression to another character. However, the court denied copyright infringement for the other characters' images because, although the subject ideas were similar, each of the expressions differed. The following images are excerpts of some of the characters' images.


Regarding Character 1, the court affirmed that it was a reproduction of the image of the plaintiff's character because the creative expressions were similar. As to Character 2, however, the court determined that "although some points are similar; namely, a woman wearing a light blue top is sitting with one hand on a chair, legs crossed, and facing forward, and the backrest of the chair is higher than the woman's upper body, there are multiple differences in the specific expressions, and only the ideas are similar."

As mentioned above, what is protected by the Copyright Act is the "expression" of the character itself, not the "idea." This case showed that the only issue when determining similarity is whether there is any commonality in the specific expressions.


VI. Conclusion

It is not easy to protect the characters themselves in Japan. There are many cases where even if two characters seem similar, it is challenging to establish infringement because only their ideas are common. This may be the reason why the Plaintiffs chose to sue the Defendant for patent infringement rather than copyright infringement despite the similarities in designs of the Pokmon and Palworld creatures. However, plaintiffs, in general, should not give up their pursuit of character protection. Efforts to protect characters by utilizing laws other than the Copyright Act, including the Trademark Act and Unfair Competition Prevention Act, are still possible in Japan.


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