[2] The standard for determining whether a work already made public under the former Copyright Act is made consistent with a fair practice to the extent justified, and the scope to which free use is allowed for commercial purposes

1. The court below determined that the defendants' distribution of the pictures (hereinafter "the pictures of this case") in the decision of the court below, which had taken the model of wearing Titrts, etc. (hereinafter "the pictures of this case") widely used at the time of the World Cup 2002, entrusted to the so-called so-called Photoblier program providing brokerage of transfer/use license on the Internet does not constitute copyright infringement. The summary of the works of this case is that the scope of protection is limited, in light of the social and cultural background of the materials supporting phrases, the collective support activities of the people, and its commercial/functional nature, etc., the scope of protection is limited, and it is nothing more than indirect and incidental use in light of the location, proportion, etc. of the pictures of this case, and it is difficult for the copyright holder to directly express the copyrighted works of this case and directly express the copyrighted works of this case.

2. In conclusion, the judgment of the court below is summary that the instant pictures do not recognize the substantial similarity with the instant copyrighted works, or that the distribution of the instant pictures by the Defendants, in which the instant copyrighted works are expressed, constitutes the acceptance of the copyrighted works published under Article 25 of the former Copyright Act (amended by Act No. 8101, Dec. 28, 2006; hereinafter the same shall apply).

However, we cannot accept the above judgment of the court below for the following reasons.

A. First, we examine the substantive similarity between the instant pictures and the instant copyrighted works.

(1) In cases where an original work is reproduced in the course of photographing, recording, etc., the nature, content, and overall composition of a new work should be considered as having substantial similarity among them, if the original is used as incidental to the photographing, recording, etc. of an object in which the main expression is displayed in a new work, and it is not equivalent to the extent that its quantitative and qualitative weight or importance is insignificant, but rather, if the creative expression form of the original work in a new work becomes apparent in a new work, it shall be deemed that there is a substantial similarity.

(2) We examine the above legal principles and the evidence duly admitted by the court below.

The instant copyrighted works consisting of the widely known supporting phrases at the time of the World Cup 2002, “Be Red Co., Ltd.”. The creative identity of the instant copyrighted works itself expresses dynamic and dynamic support by using traditional ugraphs. However, some of the pictures of this case (hereinafter “instant infringed photographs”) were located in the center of the instant copyrighted works in size and form with which the original form of the instant copyrighted works was fully or most recognizable, and their creative identity was changed as they were, in light of the symbol on the instant copyrighted works’ creative elements and the character, content, overall degree, etc. of the instant infringed photographs, the instant copyrighted works seem to have been seen as one of the main objects of the instant copyrighted works that expressed the dynamic and dynamic character of the instant copyrighted works. In short, as long as the instant copyrighted works were in the form of the instant copyrighted works, the instant copyrighted works could have a considerable similarity with the instant copyrighted pictures that were expressed in the original form of the instant copyrighted works.

B. Next, we examine whether the distribution of the infringing photographs of this case constitutes “a quotation of works made public” as prescribed by Article 25 of the former Copyright Act.

(1) Article 25 of the former Copyright Act provides that a work already made public may be quoted for news reports, criticism, education, research, etc., within a reasonable scope consistent with fair practices. The determination of whether a work is properly made within a reasonable scope shall be made by comprehensively taking into account the purpose of quotation, the nature of the work, the contents and quantity of the quoted work, the method and form that contains the cited work, the general concept of readers, and whether the demand for the original work is replaced. In this case, although the use for profit-making purposes is not necessarily a non-profit use, the scope of free use is considerably narrow compared to the use for non-profit purposes (see, e.g., Supreme Court Decisions 97Do227, Nov. 25, 1997; 201Do5835, Feb. 15, 2013).

(2) We examine the above legal principles and the evidence duly admitted by the court below.

The Defendants distributed the instant infringing photographs to entrust the business entity to arrange the permission for the transfer and use of photographs at the cost by the entrustment of the photographers, which is for profit-making purposes.

In addition, the instant copyrighted work is a kind of work of art in which the aesthetic expression in accordance with the author’s creative presentation of the author’s creative identity is revealed. In the case of the instant infringing photographs, insofar as they were made by photographing the instant copyrighted work that symbolizes the World Cup’s support culture without any special modification, it cannot be deemed to have obtained any separate purpose or character beyond the mere alternative level of the instant copyrighted work. Furthermore, as seen earlier, the instant infringed photographs are located in the center of the photograph in size and form with which the original form of the instant copyrighted work is visible or most recognizable, and accounts for a quantitative and qualitative proportion. In addition, the instant infringed photographs are deemed to have been transferred to the users of pictures in the shape of the World Cup atmosphere for the purpose of transferring the instant copyrighted work for consideration or allowing the use thereof to be used. As seen earlier, it appears that the Defendants could have entrusted the instant copyrighted work to the business entity with the use of the copyrighted work in accordance with the size and use permit in the instant copyrighted work.

Comprehensively taking account of the above circumstances, it is difficult to view that the instant copyrighted work was cited from the infringement photographs distributed by the Defendants to the extent that they were consistent with the fair practices within the reasonable scope.

C. Nevertheless, the court below held that all of the instant pictures were not recognized as having substantial similarity with the instant copyrighted works, or the instant copyrighted works were quoted in conformity with fair practices to the extent justified, without individually comparing and comparing with the instant copyrighted works as to the substantial similarity between the instant copyrighted pictures and the creative copyrighted works. This decision is erroneous by misapprehending the legal principles on copyright infringement.

3. Conclusion

Of the instant pictures of the lower judgment, the part concerning the pictures recognized as having substantial similarity with the instant copyrighted works should be reversed. Since this part is in the relation of a blanket crime with the part not recognized as having the said substantial similarity among the instant pictures, the entire judgment of the lower court is reversed.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)