저작권법위반
The judgment of the court below is reversed.
Defendants shall be punished by a fine of KRW 300,000.
Defendant
A does not pay the above fine.
1. The summary of the grounds of appeal is that Defendant A sold and distributed to H, I, J, and K a photograph taken by Defendant A (G; hereinafter “the instant copyrighted work”) of the model in which the design (G; hereinafter “the instant copyrighted work”) was read as a copyright holder of the instant copyrighted work without the consent of the victim F, the copyright holder of the instant copyrighted work, thereby infringing on the victim’s copyright. However, the lower court acquitted the Defendants of the charge of violating the Copyright Act or erred by misapprehending the legal doctrine.
2. Before determining the grounds for appeal ex officio, prior to the judgment on the grounds of appeal by authority, the prosecutor, after remanding the case, changed the “the photograph” of No. 1 in the indictment No. 5 to “the photograph” of the indictment No. 1, and applied for a change in the indictment to add the pictures of this case in the attached Form. Since this court permitted this, the judgment of the court below is no longer maintained.
However, the prosecutor's assertion of misunderstanding of facts and misapprehension of legal principles is still subject to the judgment of this court, despite the above reasons for ex officio reversal.
3. Determination
A. In a case 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 seen as having substantial similarity among them, if the original is used as an incidental to the photographing, recording, etc., of an object in which the main expression is displayed in a new work, and its quantitative weight or importance is insignificant, rather than in a case where the original is used as an incidental to the photograph, recording, etc., of an object in which the main expression is displayed in a new work.
B. According to the evidence duly adopted and examined by the court below and the court below prior to the remand, the attached photograph No. 1 through No. 12, 15, 16, 18, 20, 28, 35-2 of the defendant A taken and distributed.