손해배상(지)
1. The plaintiff's claims against the defendants are all dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
1. Basic facts
A. “D” written by the Plaintiff (hereinafter “Plaintiff’s work”) was published on December 15, 2005 through the Plaintiff’s musical records, and the musical records are as shown in attached Table 1. B. The Defendants’ sound “E” was used in “E”, which was opened on January 22, 2014. The sound records were published on January 28, 2014, and the sound records were written in attached Table 2.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 11, Eul evidence Nos. 1, 2, and 6 (including each number), the purport of the whole pleadings
2. The parties' assertion
A. The Plaintiff’s singings are similar to the main parts of the Plaintiff’s copyrighted work and musical instruments, and both the sound and rhythm are the same. As such, the Defendants used the Defendants’ singing as the background music, produced and distributed the sound, thereby infringing the Plaintiff’s right to create secondary copyrighted works and author’s moral rights, the Defendants are liable to pay the Plaintiff money as stated in the purport of the claim in compensation for damages.
B. The Defendants’ sings by the Defendants are completely different from the Plaintiff’s copyrighted works in terms of musical, rhym and harmony, and thus, they do not infringe the Plaintiff’s copyright.
3. Determination
A. In order to be an infringement of copyright for musical works, three requirements such as ① the Defendant’s use of the Plaintiff’s copyrighted work, namely, infringement of creative expression, ② the Defendant’s use of the Plaintiff’s copyrighted work, ③ the Plaintiff’s copyrighted work and the Defendant’s copyrighted work should have substantial similarity between the Plaintiff’s copyrighted work and the Defendant’s copyrighted work, and hereinafter, the issue among the above requirements is the existence of substantial similarity between the Plaintiff’s copyrighted work and the Defendants’ musical work.
(b) The derivative work prescribed in Article 5(1) of the Copyright Act is based on the original work, and is substantial from the original work.