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Film and TV IPs enjoy immense popularity and generate substantial traffic on their own. To rapidly attract new users and boost revenue, many game developers unauthorizedly reuse characters' appearances, names, iconic dialogues, or even core character designs from these productions. While this may appear to be merely capitalizing on the trend, it actually poses significant legal risks.

In recent years, cases involving copyright infringement, portrait rights violations, and unfair competition have surged, leading to the establishment of well-defined judicial guidelines. This article analyzes recent widely discussed court rulings to clarify the criteria for determining infringement when games utilize film and television characters, delineating legal boundaries and providing a reference for compliant game operations.

1、Classification of tortious acts

The use of character images from films or television dramas does not automatically constitute infringement; the key criterion for differentiation lies in whether the utilized elements constitute legally protected original expressions, personality rights, or commercial identifiers.

Simple historical figures and traditional mythological characters fall within the public domain, and no one may monopolize them. However, original artistic images, character designs, and classic lines created by films and television dramas based on elements from the public domain, as well as the recognizable portrait rights associated with actors formed through these productions, are protected by the Copyright Law, the Civil Code, and the Anti-Unfair Competition Law.

Unauthorized use that reaches the level of "substantial similarity,"  "identifiability," or "market confusion" constitutes infringement. Common types of infringement fall three categories: first, infringement of copyrights to character artwork in films and television dramas; second, infringement of actors' portrait rights; third, unauthorized use of well-known film and television IP elements constituting unfair competition, with some cases involving all three types of infringement simultaneously.

II. Classic Judicial Cases

(1) Infringement of the copyright in artistic works depicting film and television characters

Source: "Nezha" and "Ao Bing" Infringed – New "Game Skin Exchange" Case Publicly Ruled

The case involving a Beijing-based film company, a Hangzhou-based internet company, a Beijing-based internet company, and a technology firm regarding copyright infringement and unfair competition represents a landmark precedent in disputes over the unauthorized use of cinematic character images in games. The Hangzhou Internet Court found that the Beijing-based film company held the copyrights to the film "Ne Zha: The Demon Child's Birth" and the artistic works depicting the characters "Ne Zha" and "Ao Bing." These characters possess unique artistic compositions defined by their colors, lines, and patterns, endowing them with aesthetic value and qualifying them as protected artistic works under copyright law. Shortly after the film's release, the defendant introduced character skins bearing the same names in its game "Dream Tower Defense," featuring striking similarities to the original characters in hairstyles, facial features, and attire—a clear case of substantial similarity. The defendant also exploited the film's popularity for promotional purposes, demonstrating deliberate intent to benefit without contributing to its success. The court ruled that the defendant's actions infringed upon the right of communication through information networks and constituted unfair competition, ordering cessation of infringement, compensation of economic losses and reasonable litigation costs totaling RMB 1 million, and public remediation of the adverse effects. The judgment clarified that while traditional mythological characters belong to the public domain, original artistic depictions in films and television remain protected under copyright law. Substantial similarity is determined through comparison of core characteristics, and minor modifications do not affect infringement determination.

(II) Infringement of an actor's right to their portrait

Source: Mobile game promotional character bears striking resemblance to a famous film character; actor's lawsuit for portrait rights infringement upheld | Five Years of Perseverance: A Typical Case Study

In the dispute over portrait rights between actor Yang and a certain internet technology company, the Beijing Internet Court determined that the stills depicting Yang's character in a renowned film constituted his portrait and established a s correlation with the actor himself. The involved game used a virtual character highly similar to these stills without authorization, with distinct facial features, makeup, and attire that were readily recognizable to the general public, thereby establishing identity with Yang's portrait. Although the defendant did not use Yang's name or directly employ the stills, merely applying an anime-style transformation, this still constituted infringement of portrait rights. The court held that natural persons' portrait rights are protected by law and may not be commercially utilized without consent; any virtual character possessing recognizable features falls within the scope of portrait protection. The court ordered the defendant to immediately cease using the disputed character, issue a public apology, and compensate for economic losses.

(3) Unauthorized use of film and television IP elements constitutes unfair competition

Source: A game promotion claims "1:1 recreation of the Wild Sprint storyline and gameplay" —does this constitute infringement? The court has ruled!

In the case of iQiyi Co., Ltd. versus a gaming company and a media company regarding unfair competition, iQiyi is the intellectual property rights holder of the popular TV series "The Wild Sprint." The series, along with its title, character names such as Gao Qiqiang and An Xin, classic dialogues, and scene elements, have gained widespread recognition and established a strong market presence, forming a consistent association with the original series. To promote its game, the defendant used phrases "The Wild Sprint Version" and "1:1 recreation of the series 'plot and gameplay" in promotional videos, unauthorizedly employing the series' title, character names, and scene elements to capitalize on its popularity. This practice misled the public believing a specific collaboration or licensing relationship between the game and the rights holder, constituting an act of imitation and confusion. The court ruled that the defendant engaged in unfair competition and ordered compensation totaling 180,000 yuan for economic losses and reasonable litigation costs. The case clarified that unauthorized use of core IP elements—including titles, characters, and scenes from popular TV series—to capitalize on their popularity or create confusion falls under the scope of anti-unfair competition regulations and entails corresponding legal liability.

III. Rules for Determining Infringement

(I) Copyright

In judicial practice, the "contact + substantial similarity" standard is applied. First, regarding the possibility of exposure: if a film or television series was released earlier than the game's launch date, it can be presumed that the game developer had access to the relevant work. Second, regarding substantial similarity: the focus lies in comparing core identifying features such as character facial features, hairstyles, costumes, iconic props, and overall appearance, rather than minor details; even adaptations in Q-style or anime style are considered similar as long as the core characteristics remain consistent. Additionally, original artistic works featuring film and television characters are protected, with clear distinctions made between elements from the public domain and original creative expressions.

(II) Right to Portrait

The primary criterion for determination is "recognizability." Even without using the actor's name or directly reproducing stills from the drama, the use of a game virtual character that allows the general public to clearly associate it with a specific actor constitutes an infringement of portrait rights. The iconic character designs of actors in films and television series fall under the extended protection scope of portrait rights, and any commercial use must obtain the actor's explicit authorization.

(III) Unfair Competition

The unauthorized use of character names, show titles, or iconic dialogues from renowned film and television IPs, or the deliberate imitation of cinematic elements for promotional purposes, can lead to public confusion about product origins, exploitation of others' commercial reputations and IP popularity, and violate the principles of good faith and business ethics. Even if such actions do not constitute copyright infringement, they may still be regulated under the Anti-Unfair Competition Law.

IV. Industry Compliance Recommendations

Based on the aforementioned judicial precedents and relevant legal provisions, here are some preliminary compliance recommendations for gaming companies to avoid infringement:

First, adhere to the principle of obtaining authorization before commercial use: the use of film and television character images, names, or dialogues must be preceded by written authorization from the copyright holder, specifying the scope and duration of use. For actor portraits, additional individual authorization from the actor is required to prevent unauthorized or excessive use.

Second, clearly distinguish between public domain elements and original content. Historical and mythological figures may be independently designed, but the direct adoption of unique visual styles, costumes, or character designs from films and TV series is strictly prohibited to ensure no substantial similarity between the game characters and their film/TV counterparts.

Third, refrain from蹭ing on IP rights, avoid misleading promotions, refrain from using film/TV titles, character names, or homophonic terms for marketing, avoid labeling phrases "same product" or "officially licensed," and avoid directly copying film/TV plots and dialogues to prevent public confusion.

Fourth, conduct comprehensive self-inspections throughout the entire process, thoroughly identify infringement risks before development and launch, and immediately remove infringing content upon receiving notification to minimize losses promptly.

Fifth, clarify cooperation responsibilities: When collaborating with outsourcing or promotional partners, specify the liability for infringement in the agreement and conduct rigorous reviews of third-party materials to avoid t and several liability for infringement.

Film and television IPs possess significant commercial value and market appeal. When leveraging these IPs to attract audiences, the gaming industry must adhere to legal boundaries and respect others' intellectual property rights and personal dignity. Judicial practices have become increasingly stringent in identifying such infringements; infringers face not only civil liabilities such as ceasing violations and compensating for losses but also commercial risks including damage to brand reputation and product delisting or suspension. For industry players, only by strengthening compliance awareness and balancing original creation with lawful licensing can they achieve sustainable long-term development.