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Film and television IPs are highly popular and come with built-in traffic. To rapidly acquire new users and increase revenues, many game developers directly use the character images, character names, classic lines and even core character settings of film and television works without authorization. What seems to be merely "riding the popularity wave" actually harbors huge legal risks.

In recent years, the number of copyright infringement cases, portrait right infringement cases and unfair competition cases arising therefrom has remained at a continuously high incidence level, and relatively clear adjudication rules have taken shape in judicial practice. This paper, drawing on widely discussed authentic judicial precedents in recent years, breaks down the criteria for determining tort liability concerning the use of film and television characters in games, clarifies relevant legal red lines, and provides reference for the compliant operation of games.

I. Determination of the Nature of Tortious Acts

The use of character images from films and television dramas in games does not constitute infringement in all cases. The core distinguishing criterion lies in whether the subject matter of the use is original expression, personality rights and interests, or commercial signs protected by the law.

Purely historical figures and traditional mythological figures fall into the category of public domain, and no person shall monopolize such elements. However, the original artistic images, character settings, classic lines created in film and television works based on public domain elements, as well as the recognizable portrait rights and interests of actors formed through the aforesaid film and television works, are all protected by the *Copyright Law of the People's Republic of China*, *Civil Code of the People's Republic of China* and *Anti-Unfair Competition Law of the People's Republic of China*.

Unauthorized use that reaches the degrees of "substantial similarity", "identifiability" and "market confusion" shall constitute infringement. Common types of infringement fall into three categories: First, infringement of the copyright in artistic works of film and television drama characters; Second, infringement of actors' right of portrait; Third, unauthorized use of elements of well-known film and television IP constitutes unfair competition. The aforesaid three types of infringing acts coexist in some cases.

II. Classic Judicial Cases

(I) Infringement upon the Copyright of Fine Art Works of Film and Television Characters

Source: "Nezha" and "Ao Bing" Infringed -- Public Verdict Issued in the New-type "Game Reskinning" Case

The dispute between a Beijing-based film company, a Hangzhou-based internet company, another Beijing-based internet company and a technology company over copyright infringement and unfair competition is a typical judicial precedent concerning infringement arising from the use of film character images in video games. Hangzhou Internet Court found upon trial that the Beijing-based film company holds the copyright to the film *Ne Zha: Birth of the Demon Child* as well as the artistic works of "Ne Zha" and "Ao Bing" featured in the film. The aforesaid images form unique artistic forms through the combination of colors, lines and patterns, have aesthetic value, and constitute artistic works protected by the Copyright Law of the People's Republic of China. Shortly after the film concluded its theatrical release, the defendants rolled out character skins under the same names in *Dream Tower Defense*, the game operated by them. The images used are highly identical with the artistic works of "Ne Zha" and "Ao Bing" in terms of hairstyle, facial features, costumes and other elements, which constitutes substantial similarity. In the meantime, the defendants carried out promotion and publicity by leveraging the popularity of the film, with an obvious intent of free riding. The court ruled that the acts of the defendants have infringed upon the right of communication of information on networks, and also constituted unfair competition. The court ordered the defendants to cease the infringing acts, pay a total of RMB 1,000,000 as compensation for economic losses and reasonable expenses incurred for rights protection, and publicly eliminate the adverse impacts. This case clarifies that although traditional mythological figures are in the public domain, original artistic images created for film and television works are still protected by the Copyright Law. The determination of substantial similarity is based on the standard of core feature comparison, and minor modifications will not affect the finding of infringement.

(II) Infringement upon Actors' Portrait Rights

Source: Mobile Game Promotional Image Bears a Striking Resemblance to Renowned Film Character, Actor Prevails in Lawsuit over Infringement of Right of Portrait | Five Years of Endeavor · Typical Cases Series

In the portrait right dispute between actor Yang and a network technology Co., Ltd., the Beijing Internet Court ascertained that the stills of the character played by Yang in a well-known film are the carrier of his portrait, which can establish a stable correspondence with Yang himself. The game involved used a virtual image highly similar to the aforesaid stills without permission, which has high identifiability in terms of facial shape, facial features, makeup, costumes and other aspects. In accordance with the cognitive standard of the general public, it is sufficient to confirm that the virtual image is identical with Yang's portrait. Although the defendant did not use Yang's name, nor directly adopted the stills, and only carried out animation processing of the image, it still constituted infringement upon the right of portrait. The court held that the portrait right of natural persons is protected by law, and no commercial use is allowed without consent. As long as the virtual image of a game is identifiable, it falls within the protection scope of the portrait right. The court ordered the defendant to immediately stop using the image involved, make a public apology, and compensate for economic losses.

(III) Unauthorized Use of Film and Television IP Elements Constitutes Unfair Competition

Source: Game promotion claims "1:1 restoration of the plot and gameplay of *The Knockout*": Does it constitute infringement? The court has rendered a judgment!

In the unfair competition dispute case where iQIYI Inc. sued a game company and a media company, iQIYI Inc. is the intellectual property right holder of the hit drama *The Knockout*. The drama, its title "The Knockout", names of characters including Gao Qiqiang and An Xin, classic lines and scene elements have been widely disseminated, enjoying high market popularity and distinctiveness, and can form a stable corresponding association with the drama. To promote their game, the defendants used expressions such as "The Knockout Version" and "1:1 restored gameplay following *The Knockout* plot" in promotional videos, used elements including the drama title, character names and scenes without authorization, and deliberately attached to the popularity of the drama, which is likely to mislead the relevant public into believing that there are specific connections such as cooperation and authorization between the game and the right holder, constituting an act of passing off and confusion. The court found that the defendants constituted unfair competition, and ordered them to pay a total of RMB 180,000 as compensation for economic losses and reasonable rights protection expenses. This case clarifies that unauthorized use of core IP elements such as titles, characters and scenes of hit film and television dramas to "capitalize on popularity" and "free ride", which causes confusion and misidentification among relevant public, falls into the confusing acts regulated by the Anti-Unfair Competition Law of the People's Republic of China, and the perpetrator shall bear corresponding legal liabilities.

III. Rules on Determination of Torts

(I) Copyright

The "access + substantial similarity" test is adopted in judicial practice. First, as for the likelihood of access: where the public release and broadcast time of a film or television series is earlier than the launch time of the game, it can be presumed that the game developer has the conditions to access the work involved in the case. Second, as for substantial similarity: the comparison shall focus on core identifying features of the characters including facial features, hairstyles, costumes, iconic props and overall styling, rather than minor differences. Even if Q-version or anime adaptation is conducted, similarity shall be deemed to be constituted as long as the core features are consistent. In the meantime, original art works of film and television characters are protected by law, and elements in the public domain shall be strictly distinguished from original expressions.

(II) Right of Portraiture

The core criterion for judgment is "identifiability". Even if the actor's name is not used and drama stills are not directly reproduced, as long as the virtual character in the game can be clearly associated with a specific actor by the general public, it shall constitute infringement of portrait rights. The classic character images of actors in films and television dramas fall within the scope of extended protection of portrait rights, and commercial use of such images must obtain authorization from the actors themselves.

(III) Unfair Competition

With respect to well-known film and television IPs, where any person, without authorization, uses the names of characters, titles of the works, classic lines, or deliberately imitates relevant film and television elements for publicity, thus causing public confusion over the source of products, free-riding on others' commercial reputation and the popularity of the IPs, and violating the principle of good faith and commercial ethics, even if such acts do not constitute copyright infringement, they may still be regulated pursuant to the Anti-Unfair Competition Law of the People's Republic of China.

IV. Industry Compliance Recommendations

Combined with the aforesaid judicial precedents and relevant legal provisions, the following preliminary compliance suggestions for game enterprises to avoid infringement are hereby put forward:

First, the principle of "authorization prior to commercial use" shall be adhered to. Where the image, name or lines of a film or television character are to be used, written authorization shall be obtained from the copyright holder in advance, with the scope and term of use explicitly specified. Where such use involves an actor's portrait, separate individual authorization from the actor shall be additionally obtained. Unauthorized use and use beyond the authorized scope are strictly prohibited.

Second, a strict distinction shall be drawn between content in the public domain and original content. Historical and mythological characters may be independently created and designed through original work; copying of the exclusive images, costumes and character settings of films and television dramas is strictly prohibited, so as to ensure that no substantial similarity exists between game characters and their corresponding film and television versions.

Thirdly, we shall refrain from free-riding on IP and conducting misleading publicity. We shall not use film and television titles, character names or homophones for promotion, nor mark such expressions as "same style" or "officially licensed", nor copy the plots and lines of film and television works, so as to avoid confusion and misidentification among the public.

Fourth, carry out self-inspection throughout the entire process: comprehensively screen for infringement risks before the development and launch of relevant contents; upon receipt of an infringement notice, immediately take down and delete the relevant contents to mitigate losses in a timely manner.

Fifth, clarify cooperation-related liabilities. When cooperating with outsourcing parties and promotion parties, the attribution of tort liability shall be specified in the agreement, and strict review shall be conducted on third-party materials to avoid incurring joint and several tort liability.

Film and television IP boasts high commercial value and market appeal. When the game industry leverages film and television IP to attract traffic, it must firmly hold to the legal bottom line and respect the intellectual property rights and personality rights and interests of others. In judicial practice, the determination of such tortious acts is increasingly stringent. The tortfeasor shall not only bear civil liabilities including ceasing the infringement and compensating for losses, but also may face commercial risks such as impaired brand reputation, product removal from shelves and suspension of operation. For industry entities, only by strengthening compliance awareness and adhering to the parallel pursuit of original creation and lawful authorization can they achieve long-term sound and stable development.