[2] The case denying the creativity of a photograph that faithfully expresses only the product itself for the production of an advertisement clocks

[3] The method of calculating the amount of damages caused by infringement of copyright of photographic works for advertising products

[2] The case denying the creativity of a photograph that faithfully expresses only the product itself for the production of an advertisement clocks

[3] The case holding that when the food manufacturing company calculates the amount of damages caused by the infringement of the copyright of the advertisement photographer due to the infringement of the advertisement photographer by using its product advertising photographs on the Gads of department stores without permission, the amount of damages equivalent to the amount of money that the advertisement photographer is equivalent to the amount that the advertisement photographer is able to obtain ordinarily by exercising the copyright under Article 93 (2) of the former Copyright Act (amended by Act No. 6134 of Jan. 12, 200) since there is no supporting material for the amount of profits of the food manufacturing company presumed to be the amount of damages under Article 93 (2) of the former Copyright Act (amended by Act No. 6134 of Jan. 12, 200)

In order for a copyrighted work to be protected under the Copyright Act, the copyrighted work must be a creative production belonging to the scope of a literary, scientific or artistic work. As such, creativity is required as a requirement. The copyrighted work is deemed to fall under the copyrighted work protected under the Copyright Act in the course of selecting the subject of a copyrighted work, setting a Gu road, controlling the direction and quantity of light, setting a camera angle, speed of exhausters, other photographing methods, screening methods and paintings, and recognition of the identity and creativity of the subject of a copyrighted work.

According to the reasoning of the judgment below, the court below held that the defendant company's defendant company's motion pictures were requested to produce savegs for advertisement of the products manufactured and sold by the defendant company, and entered into a contract with the plaintiff around November 25, 192 to produce and be supplied with photographs such as saves for the production of saves. The defendant company's motion pictures to be taken are hard to recognize that they were made and sold by the defendant company's motion pictures for the production of saves (hereinafter "products photographs"), and the defendant company's motion pictures are hard to be used for the defendant company's motion pictures to protect the effect of advertising by posting them in harmony with other saves or saves (hereinafter "saves photographs"), and the defendant company's motion pictures are hard to be used for the defendant company's motion pictures to use more than saves or saves as advertising photographs for the same type of products. The defendant's motion pictures were also hard to be used for the defendant's motion pictures.

In light of the records and the legal principles as seen earlier, the judgment of the court below is just, and there is no violation of law as otherwise alleged in the ground of appeal.

2. As to the ground of appeal on the computation of damages

Examining the Plaintiff’s damages arising from the infringement of the Plaintiff’s copyright by using the above image photographs of the Defendant Company’s company’s above image pictures in the Seoul Si/Gun/Gu department stores without permission, pursuant to the records and relevant legal provisions, the Plaintiff’s assertion that the amount of damages for the author’s property right arising therefrom should be calculated at ten times the ordinary photographing fee. The Plaintiff’s assertion that the amount of damages for the author’s property right should be calculated at ten times the ordinary photographing fee, as determined by the lower court, cannot be accepted as there is no evidence to acknowledge that there was such an agreement or practice between the parties. Furthermore, the amount presumed to be the Plaintiff’s damages pursuant to Article 93(2) of the former Copyright Act (amended by Act No. 6134, Jan. 12, 200; hereinafter “Act”) can not be found in the records as to the amount of damages for the Defendant Company’s copyright infringement. Accordingly, the Plaintiff’s damages due to the Defendant Company’s copyright infringement should be paid in the absence of the Plaintiff’s consent to use of image.

In calculating the amount of damages of the plaintiff, it is inappropriate for the court below to consider Paragraph 2 of the same Article, not Paragraph 3 of Article 93 of the Act, but Paragraph 2 of the same Article, but it is not paid by the defendant company even though it has obtained the consent of the plaintiff for the use of image photographs in order to use the above image photographs, which is equivalent to the amount of the photograph fee, as a result, is just and there is no violation of law as otherwise

3. Therefore, the appeal shall be dismissed, and all costs of appeal shall be assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Cho-Un (Presiding Justice)