[2] The subject of copyright protection and the standard to determine whether there exists a substantial similarity between two copyrighted works

[3] In a case where Foreign Company A, which developed and released a match-3-game type, sought a prohibition of infringement against Company B on the grounds that the mobile game produced by Company B infringed upon Company A’s copyright, the case holding that: (a) Company A’s game works have a creative identity that is distinguishable from prior game works; (b) it can be protected as a copyrighted work; and (c) Company B’s game works contain the creative expression form of Company A’s game works, and thus, may be deemed substantially similar, the lower court erred by misapprehending the legal doctrine, etc.

Game works (hereinafter “game works”) are copyrighted works of a combined nature such as literary works, musical works, art works, cinematographic works, and computer program works. Computer game works or mobile game works are systematically combined with characters responding to certain scenarios and game rules by a user’s manipulation, items, background pictures and computer programs that have technical operation thereof, and images realized therefrom, background music, etc.

In the process of technically embodying the author’s intent of production and scenarios, various elements of a game product may appear, which can be clearly distinguishable from other game products, by selecting, arranging, and combining them. Therefore, the determination of the originality of a game product should take into account not only the creative nature of each constituent element of the game product, but also whether the constituent elements are selected, arranged, and combined in the process of technically embodying the game product according to a certain intent of production and scenario, and whether the game product itself has become a creative identity distinct from other game products and has reached the extent of being protected as a work.

[2] The subject of copyright protection is a creative expression form that explicitly expresses human thoughts and emotions through speech, text, sound, color, etc., and when determining whether there exists a substantial similarity between two copyrighted works in order to determine whether a copyright has been infringed, it shall be compared only with those constituting a creative expression form.

[3] In a case where Company A, which developed and released a mat-3-game type, sought a prohibition of infringement against Company B on the grounds that the mobile game produced by Company B infringed upon Company A’s copyright, the case holding that Company A’s game work contains a creative identity that is distinguishable from the prior game work by selecting the elements deemed necessary in light of the nature of the game work based on the game development experience and knowledge accumulated by the developer, and arranging and combining them according to its own intent of production, separate from whether the creative nature of each constituent element is recognized, as the major constituent elements technically embodied in accordance with a specific intent of production and scenario are selected, arranged, and combined in an organic combination, separate from whether the creative nature of each constituent element is recognized, and thus, it can be protected as a work, and the game work of Company B includes the selection, arrangement, and organic expression of the major constituent elements technically embodied in the production intent of Company A’s game work and scenario, and thus, the amount of the game work is substantially similar.

1. As to the grounds of appeal Nos. 1 and 2

A. (1) Article 2 Subparag. 1 of the Copyright Act requires creativity by stipulating a work as “a creative production that expresses human thoughts or emotions.” Even though creativity does not require complete originality, to be recognized as creative, at least a certain work is not a mere reproduction of another’s work, and must include the author’s own expression of ideas or emotions (see Supreme Court Decisions 2009Do291, Feb. 10, 201; 2014Da49180, Nov. 9, 2017).

Game works (hereinafter “game works”) are copyrighted works of a combined nature such as literary works, musical works, art works, cinematographic works, and computer program works. Computer game works or mobile game works are systematically combined with characters responding to certain scenarios and game rules by a user’s manipulation, items, background pictures and computer programs that have technical operation thereof, and images realized therefrom, background music, etc.

In the process of technically embodying the author’s intent of production and scenarios, various elements of a game product may appear, which can be clearly distinguishable from other game products, by selecting, arranging, and combining them. Therefore, the determination of the originality of a game product should take into account not only the creative nature of each constituent element of the game product, but also whether the constituent elements are selected, arranged, and combined in the process of technically embodying the game product according to a certain intent of production and scenario, and whether the game product itself has been protected as a work with a creative identity distinct from other game products.

(2) The subject of copyright protection is a creative expression that explicitly expresses human thoughts and emotions through speech, text, sound, color, etc., and in determining whether there exists a substantial similarity between two copyrighted works in order to determine whether a copyright has been infringed, it shall be compared only with the mere form of creative expression (see Supreme Court Decision 2011Do3599, Aug. 22, 2013).

B. In full view of the foregoing legal doctrine and the following circumstances revealed by the evidence duly admitted, the Plaintiff’s game work is entitled to copyright protection, as it has a creative identity distinct from that of the preceding game work.

(1) The Plaintiff’s game work (name 1 omitted of the game work, English name 1 omitted of the game work) takes the form of sat-3-game (mat-3-game) that allows a specific day in the game to be set to the number of goals given each phase by acquiring points of the other in a manner that combines three or more straight lines with crops as a basic character. Although there were diverse types of sat-3-games, the Plaintiff’s game work has a variety of types of sat-3-games, focusing on the basic character in which the shape of day, night, bee, bee, sat, sat, seed, water bat, etc., is distinguishable from the existing game work in that a interfered character is a sat, a fat character in a combat level, or a character in which the shape of the satch is drawn to the shape of the satch in a satch.

(2) The Plaintiff’s game work, on the basis of the basic universal width rules and the additional universal width rules, has been introduced in sequence in the manner of fishing, combat level, eggs gathering rules, special partitions, Yangdong rules, seeds and water booming rules, interference rules, etc. The number and types of goals to be achieved in the course of carrying out the Plaintiff’s game work are diverse due to these introduced rules. As such, the user feel new salving and salving in the process of achieving the objectives set in the game while eliminating or avoiding the obstacles that may be obstructed. While the Plaintiff’s game work ought to achieve the goals at each stage, the special rules added at the preceding stage are added, modified, or combined with other rules, thereby creating a new level of difficulty, thereby affecting the development and expression of the game work.

(3) The Plaintiff’s game work, while effectively realizing the contents of the game on a small smartphone screen, was expressed by combining the following three-dimensional elements so that users can play easily and influent games.

① On the road map screen, an Amcom, which indicates stages, is based on three-dimensional-dimensional shapes, and an unsuccessful general level, is expressed by combining the unsatisfic face and blue, the general level at which the user arrives, the face and yellow, and the face and yellow of the riot (○○○○). The last level of the level of labelling at the user’s arrival, the effect that the Myanmar light is spread in its original form, and when accomplishing its goals, is emerging in the street, and a new level of labelling provides a visual effect, which is visible for the user to easily grasp the progress on the road map screen. Such expressions are presented in such a way that the user can easily understand the progress on the road map screen.

② The posters, which are helpful to accomplish the goal of each phase, are located at the bottom of the screen in the form of an Arabic container in its original form, and automatically, after the passage of time, can be used after a certain period of time. The posters expressed the remaining time as the time before the posters can be used so that users can efficiently grasp the remaining time until the use of the posters.

③ The Plaintiff’s game work added an even-distance effect to the outside of the game beams while fishing is being run, and makes the employer who achieved the goal of the phase feel a sense of achievement and a new machine.

④ If both sides have gradually mature special partitions in three times in line with the special partitions in the shape, four character in the shape of water-proof, from the special partitions, are removed, and the character in the original shape is taken up and taken up. Through this, the user raises the water from both sides containing water to the crops of the farm, and then the user provides new difficulty and safs as a result of unexpected sudden variables.

⑤ When replacing a seed and location located in a neighboring special square, seed and water blicking rule, the seed and water blicking rule, including a water blicking square, changed the 5 square meters around the surrounding square, and the blick with a non-special function that combines both the water blicking point and the recovery function. Through this, it seems that the user directly blicked the seed and blicking the seed with the water blicking to the blick.

(6) A combat level may regulate the level of difficulty by using a currency for the game prior to the commencement of the game, and shall be attacked only to the designated other day in a situation where the character (○○○) is unable to move. In such cases, the number indicating the rate of achievement of the target (%) and the degree of achievement through the change of the black bar, while showing the degree of achievement of the target through the change of the model in the black shape, the form of the character per music change in three stages. Through this, the user provides information on achievement of the target goals through providing information to the user, as well as the changing form of the character of the musical character.

7) The Plaintiff’s game work expressed a special character that does not obtain points, even if compared with other work, at a corner of a sphere, and around the character, a red sphere appears in the shape where a sphere is buried four directions. Special partitions that change the character into such character were expressed as a sphere’s yellow soil sphere, and it made it easy for users to easily understand by using the same color as the sphere character (OO).

8) The interference rules set up a line with the character to be collected, and set up a line with the character with a special interference with the character, and appears in the shape of the part of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the earth and the body of the body can be easily identified.

(4) The developer of the Plaintiff’s game work selected elements deemed necessary in light of the nature of the Plaintiff’s game work based on the game development experience and knowledge accumulated so far, and arranged and combined them according to their own intent of production. The Plaintiff’s game work, separate from whether or not the creativity of an individual constituent element is recognized, has creative identity that is clearly distinguishable from the prior game work, by making the major constituent elements technically embodied according to a specific intent of production, arrangement, and organic combination, independent of whether or not the creativity of an individual constituent element is recognized.

C. In light of the creative identity of the Plaintiff’s game work, the actual similarity between the Plaintiff’s game work and the Defendant’s game work (name 2 omitted, English name 2 omitted) is examined.

(1) In the form of a match-3-game (match-3-game), the Defendant’s game work, instead of the Plaintiff’s game work, has used the character as an animal living in the forest instead of crops; the character as a catch instead of a catter; the character as a catch (△△△△△) instead of a catter (○○○). On behalf of a catter, the character as a catter was used. The Defendant’s game work, in the same order as that of the Plaintiff’s game work, was used in elf and mushroom instead of a catter, a catter, a battle, a cat belt, a special square rule, a patter (gluter), a seed and water tank (gluter), a seed and water tank rule, a seed and water tank (gluter) rule, and introduced the Plaintiff’s game work’s major technical options and constituent elements, as it is, in accordance with the production and arrangement of the Plaintiff’s game work.

(2) In addition, the Plaintiff’s game work used not only ① the shape and color, special effect, ② the shape of a master container at the bottom of the screen, ③ the shape of a master container at the bottom of the screen, ④ both sides, ④ the seed and water-proof rules (elf and mushroom rules), ⑤ the seed and water-proof rules (elf and mushroom rules), ⑤ the combat level, 7 the special character, and 8 the development and the form of expression in the interference rules as they are or in the form of a character. Ultimately, the Defendant’s game work used these individual elements specifically, like the Plaintiff’s game work, and gives users a sense that only the character differs from the Plaintiff’s game work.

(3) The Defendant’s game work introduced the old and spawn labelling system, etc. to pay additional compensation to the user, to indicate the person who received the highest score in a particular level, and to display other users as a punishment, and to add some of the elements that do not appear in the Plaintiff’s game work. However, these elements are about the method of compensation not directly related to the main progress of the game, and the qualitative or quantitative proportion occupied by the Defendant’s game work is small. In addition, the horns items, electric cocoon rules, and wind lines rules applied to the Defendant’s game work are applied to the Defendant’s game work, and they were not applied at the time of the first publication.

(4) In full view of the above circumstances, the Defendant’s game work includes the creative form of expression based on the selection, arrangement, and organic combination of major constituent elements technically embodied in the intent of production and scenario of the Plaintiff’s game work, and thus, both game work are deemed substantially similar.

D. Nevertheless, the lower court determined that the Plaintiff’s game work and the Defendant’s game work are not substantially similar without properly examining the intent to produce the Plaintiff’s game work and scenarios in accordance with the selection, arrangement, and combination of major constituent elements technically embodied. In so determining, the lower court erred by misapprehending the legal doctrine on the creativity and substantial similarity of the game work and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment.

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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

Justices Min You-sook (Presiding Justice)