[1] Requirements for a photographic work to constitute a copyrighted work protected under the Copyright Act and considerations in its determination

[2] The degree of creativity required to be recognized as a work, and the method of expressing ideas, emotions, or facts, if it is extremely limited, or if such expression is a secret and trace of a work, whether the work has originality (negative)

[3] Where an act of using information disclosed on the Internet without permission on the website constitutes a tort

[4] The case holding that, although the photo of patients before and after the transplant and the contents of online counseling posted on the homepage of the hospital are not recognized as copyrighted, other sexually offs and the president of the hospital illegally abused them without permission, posting them on their own homepage constitutes a tort

[1] Since creativity is required in order to constitute a work protected under the Copyright Act (a creative production belonging to the scope of literary, scientific or artistic works), the photographic work is a work protected under the Copyright Act if the photographer’s identity and creativity are recognized in the course of selecting the subject matter, setting a tool, controlling light direction and quantity, setting a cameraer angle, speed and duration of exhausters, capture of opportunity for photographing, other methods of photographing, phenomena and paintings, etc. However, the photograph is completed in the course of photographing the subject matter as a photographer, and it is often dependent on mechanical behavior, and there is little room for mental manipulation. Thus, it cannot be denied that there is a difference from other copyrighted works in that the photographer’s creativity is not always protected under the Copyright Act. Therefore, in determining whether a photograph is a photograph protected under the Copyright Act, such circumstances should be considered.

[2] In order for a certain work to be recognized as a work, it is necessary that the work has creative expression of ideas or emotions. These originality is not required for ideas or emotions, which are the contents of expression, and is required for the specific form of expression, and it does not mean a complete originality, and it is sufficient that the external expression appears in any form in the form of the author’s creation and effort. However, in a case where there is only one method of expressing ideas, emotions or facts, or where there is only no only one method of expressing ideas, emotions or facts, it cannot be said that the same act of expression cannot be actually expressed. In addition, there is no room for choice in the method of expression, and even in a case where the author voluntarily expresses it, it does not display the identity of the author in the expression. Accordingly, in such a case, it is impossible to recognize it as a work without creativity.

[3] Generally, information disclosed on the Internet through the website is freedom to be used by a third party, unless it is recognized as an exclusive right pursuant to the Copyright Act. However, for a tort to be established, it is sufficient that a third party’s legal interest worth being protected has been unlawfully infringed, rather than where the right has been infringed in a strict sense as prescribed by the Copyright Act, such as copyright. Therefore, in special circumstances, such as the use of information disclosed on the Internet without permission for the purpose of unlawfully promoting one’s own interest or the use of information in accordance with the purpose of causing damage to the Plaintiff, tort may be established because it constitutes an unlawful act that infringes on the other party’s interest worth legally protecting.

[4] The case holding that the work of copyrighted work is not recognized because all of the patients' photographs and online counseling contents posted on the website of the sexual outs and the hospital are hard to see that they have the identity or originality of the originator, but other sexual outs and the president of the hospital illegally uses them without permission and posts them on their own website constitutes tort since they violate the intangible interests, such as the credibility in business activities, which are worth legally protecting.

[1] Articles 2 and 4 of the Copyright Act / [2] Article 2 of the Copyright Act / [3] Article 750 of the Civil Act / [4] Article 750 of the Civil Act, Article 2 and Article 4 of the Copyright Act

[1] Supreme Court Decision 98Da4366 delivered on May 8, 2001 (Gong2001Ha, 1321) / [2] Supreme Court Decision 94Do2238 delivered on November 14, 1995 (Gong1996Sang, 117), Supreme Court Decision 2002Do446 delivered on October 23, 2003 (Gong2003Ha, 2275)

Plaintiff (Law Firm Squa, Attorneys Lee Jong-young, Counsel for plaintiff-appellant)

Defendant (Law Firm Rate, Attorneys Kang Dong-chul, Counsel for defendant-appellant)

June 7, 2007

1. The defendant shall pay to the plaintiff 20 million won with 5% interest per annum from March 16, 2007 to June 21, 2007, and 20% interest per annum from the next day to the date of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the costs of lawsuit, 1/2 shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 110,000,000 won with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of full payment.

1. The summary of the case and the facts premised on the case

A. Case summary

In this case, the plaintiff filed a claim for damages on the ground that the plaintiff had infringed the plaintiff's copyright (right of reproduction, broadcasting right, and right of integrity) about the plaintiff's photograph and the content of consultation by posting the plaintiff's photograph and the content of consultation on the plaintiff's website on the homepage of the hospital operated by the defendant, using the consultation as shown in the attached Table 2 of the plaintiff's online counseling co-ordin by contributing to the television program to the defendant as the main place, and even if the work nature of the plaintiff's photograph and the content of consultation is not recognized, the above act of the defendant is a claim for damages based on Article 750 of the Civil Act on the ground that it constitutes tort

B. Presumed factual basis

[Ground of recognition] Gap's evidence 1 to 4, Gap's evidence 4, Gap's evidence 5, 6-1 to 4, Gap's evidence 1 to 6, Gap's evidence 8, and the purport of the whole pleadings

(1) A party;

The Plaintiff is a specialist in sexual surgery who is engaged in the field of maternal surgery, which has been specialized in research and treatment for a veterinary year, and is operating (title 1 omitted) sexual surgery and (title 2 omitted) maternal organ transplant center (hereinafter “Plaintiff hospital”). The Plaintiff’s website (www....com) that introduces the Plaintiff’s hospital is operated.

From December 3, 2005, the defendant, as a medical specialist, operated (title 3 omitted) sexual surgery (hereinafter referred to as the "Defendant hospital") and has been in office as the president, and operated the homepage (ww.com.com) to introduce the Defendant hospital.

(2) The plaintiff's maternity surgery patient photographs and the patient's questions

(A) The plaintiff, on the homepage of the plaintiff hospital, posted the photographs in attached Form 1, which taken the condition of the patient's hair surgery before and after a certain period of time after the surgery, on which the plaintiff introduced the plaintiff hospital with the patient's consent.

(B) The above photographs selected patients from the Plaintiff as the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the patients, and taken the body of the body of the body of the body of the patients from the body of the body of the body of the body of the body of the body of the body of the body of the body of the body of the patients. The body of the body of the body of the body of the body of the body of the body of the body of the patients

(C) In addition, the Plaintiff, while operating online counseling coaches on the Plaintiff’s website, has prepared and posted the content of counseling to respond to the patient’s questions via the Internet. On November 20, 2004 and March 15, 2005, the Plaintiff posted the content of counseling as shown in the [Attachment 2] on the Internet homepage.

(3) Unauthorized use of a photograph recorded on the Defendant’s website and misappropriation of the content of consultation

(A) On March 20, 2006, the Defendant provided 8 photographs before and after the surgery with 4 patients from among the false photographs on the website of the Plaintiff Hospital, and sent 2 photographs before and after the surgery of the Plaintiff Hospital to the program called “the 48-year-old male male who was treated at the Plaintiff Hospital.” The Defendant presented 1-A and 4-B photographs, a photograph of 2 patients from the above program, as well as 1-A and 4-B photographs, a photograph of 2 patients before and after the surgery, and presented 2-year-old photographs from the 48-year-old male who was treated at the Plaintiff Hospital.

(B) In addition, on December 15, 2005, the defendant posted the following counseling contents to online counseling coaches operated on the website of the defendant hospital by using a letter on the plaintiff's counseling contents.

"I can ... I can see this wide range of e.g. g. cosmetic surgery. When it is necessary to cosmeticly improve due to a small number of hairs that should be performed normally, I will move using their hairs. The method of operation is to remove two hairs, including hair, from one’s back head, and separate it from one’s hairs, and then to one’s head, it is necessary to implement it after anesthesia, and it is possible to immediately return home immediately after the surgery. The head is possible from three days after the surgery, and most of the six days after the surgery can lead a social life, and after 10-14,000, it is necessary to see that it is necessary to 10-100 square meters in the first place to see that it is necessary to 10-100 square meters in the first place of the surgery.

2. Issues;

A. Main assertion

(1) Whether the Plaintiff’s photographic pictures on the Plaintiff’s website constitute a photographic work

(2) Whether the Plaintiff’s content of counseling contained on the Plaintiff’s website constitutes literary works

B. Preliminary assertion

Whether the plaintiff's photograph and the contents of consultation by the defendant constitute a tort (whether an act of using non-works constitutes a tort)

C. Plaintiff’s damages

3. Claim of the issue and the judgment of this court

A. As to the primary argument

(1) Whether the Plaintiff’s photographic pictures on the Plaintiff’s website constitute a photographic work

The plaintiff asserts that the photograph of this case is a photographic work because the body itself is a patient who has undergone a maternity surgery, and the body itself requires the selection of the surgery method and the ability to perform the surgery, and thus, the plaintiff's identity is administered. The plaintiff asserts that the photograph of this case is a photographic work because the plaintiff's creativity and identity are revealed in terms of selection at the time of the surgery, the location and degree of shooting compared with those before and after the surgery, and the lighting.

However, creativity is required in order to constitute a work protected under the Copyright Act (a creative production belonging to the scope of literature, science, or art). Thus, a photographic work is a work protected under the Copyright Act if the photographer’s identity and creativity are recognized in the course of selection of the subject matter, establishment of an instrument, adjustment of light direction and quantity, establishment of a camera angle, speed of exhauster, capture of opportunity, other methods of photographing, phenomenon and painting, etc. (see Supreme Court Decision 98Da43366, May 8, 2001). However, as a photograph is taken by a photographer and a photograph is completed through the process of treatment such as phenomenon and humanization, there is a lot of parts dependent on mechanical operation, and there is little room for mental manipulation, and thus, it cannot be denied that there is a difference between the photographer’s creativity and other copyrighted works, and thus, a photograph should be considered in determining whether it constitutes a photographic work under the Copyright Act.

According to the above facts in this case, the plaintiff's identity and creativity cannot be deemed to exist in the plaintiff's pictures on the ground that the plaintiff's identity and originality are revealed in the maternity surgery itself. All of the plaintiff's pictures selected patients in charge of maternity treatment as a body body and expressed the effect of maternity treatment by comparing the patient's appearance before and after the surgery. The plaintiff's pictures cannot be deemed to have the plaintiff's identity and originality in terms of the direction and quantity of the camera, which is a specific method of photographing the above pictures, and the direction and quantity of light, and the capture at the time of shooting, etc., it is difficult to view that there is the plaintiff's identity and creativity in the above pictures. Since the plaintiff's pictures cannot be deemed to have added the plaintiff's identity and originality to the background, pattern, lighting, and light in the process of the phenomenon and personality after shooting.

(2) Whether the Plaintiff’s content of consultation on the patient’s question constitutes a literary work

The Plaintiff’s counseling content is based on the knowledge and clinical experience on the maternity surgery, and expressed the terms of the Plaintiff specifically selected. The Plaintiff expressed it by using the same judicial system as “the degree of embling that leads to a little number of people.” The Plaintiff arranged it in the order of utility and concept of maternity surgery, operating method, anesthesia scope, influence on life and life, the number of hair required for surgery, attention points in the course of surgery, etc. As such, the Plaintiff asserts that it is a literary work, since it is a creative expression that shows the Plaintiff’s personality in the selection and explanation order of these terms.

However, in order for a certain work to be recognized as a work, it is necessary to be deemed that the work has creative expression of ideas or emotions, and such creativity is not required with respect to ideas or emotions which are the contents of expression, but required with respect to the specific form of expression, which does not refer to a complete originality, and if an external expression appears in any form in any form in the form of the author's creation and effort (see Supreme Court Decisions 94Do2238 delivered on November 14, 1995; 2002Do446 delivered on October 23, 2003, etc.).

However, in cases where there is only one method of expressing ideas, emotions, or facts, or where it is extremely limited, it cannot be almost the same as the expression in the expression, so there is no room for choice to display the author’s identity in the expression. In addition, even in cases where the author’s own idea and expression are expressed by himself/herself, the identity is not shown if the expression is a flat and salivant. Therefore, in such a case, it is impossible to recognize it as a work due to lack of originality.

In this case, according to the above premise facts, the plaintiff's counseling contents can be deemed as expressing the plaintiff's thoughts and emotions about the patient's question about the concept, utility, operation method, treatment after surgery, etc., but in view of the expression form of counseling, it is difficult to regard the plaintiff's own identity as a creative expression worthy of legal protection, since the plaintiff's selection and arrangement of terms or judicial selection and arrangement of the terms claimed by the plaintiff cannot be seen as showing the plaintiff's identity and creativity, it is difficult to regard the above contents of counseling as literary works.

(3) As above, since both the instant pictures and the content of consultation are not recognized as copyrighted works, the Plaintiff’s assertion that the Defendant’s act of reproducing, broadcasting, posting, etc. without permission was infringed upon the Plaintiff’s above pictures and the contents of consultation with the patients, and that the Plaintiff’s right of reproduction, broadcasting, and right of integrity are without merit.

B. As to the conjunctive assertion (as to the nature of tort liability under Article 750 of the Civil Code)

Generally, information disclosed on the Internet through the website is, in principle, free to use it, unless it is recognized as an exclusive right pursuant to the Copyright Act. However, for the establishment of a tort, it is sufficient that a third party’s legal interest worth being protected has been unlawfully infringed, rather than where the right has been infringed in a strict sense prescribed by the Copyright Act, such as copyright. Therefore, in special circumstances, such as the use of information disclosed on the Internet without permission for the purpose of unlawfully promoting one’s own interest, or the use of information in accordance with the purpose of causing damage to the Plaintiff, etc., a tort may be established as an unlawful act that infringes on the other party’s interest worth legally protecting.

In light of the aforementioned premise facts in this case, both the business introduced by the Plaintiff through the website and the Defendant’s business using the Plaintiff’s photograph and consultation are competing with the medical business related to maternity treatment. For several years, the Plaintiff conducted a maternity surgery by using specialized research and clinical experience and knowledge in the surgery, and by using the Plaintiff’s photograph and knowledge in the surgery, and posting the patient’s photograph before and after the surgery, on the Plaintiff’s website after obtaining the patient’s consent, and by making and posting a consultation based on the Plaintiff’s medical knowledge and clinical experience for a period different from the Plaintiff’s medical knowledge to all consumers, the Plaintiff’s large number of labor and expenses are used to deliver accurate information to all consumers, and the Defendant has made efforts based on clinical experience and expertise. The Defendant without permission used the Plaintiff’s photograph and consultation cases, thereby having caused the Defendant’s advertising effect on the Defendant’s business.

In full view of these circumstances, the Plaintiff’s preparation of the contents of photographing photographs and counseling for the patients is the outcome of the Plaintiff’s research and effort, and the posting and operation of such pictures, photographs, and counseling on the website is an act of economic value as part of the operation of the Plaintiff hospital. Thus, even if the Plaintiff’s photograph and counseling contents disclosed on the Internet are not recognized as copyrighted, they constitute a benefit of legal protection under the Copyright Act. The Defendant’s act constitutes a tort under Article 750 of the Civil Act, even if they are not protected under the Copyright Act. The Defendant’s use of the Plaintiff’s photograph and consulting contents taken with the Defendant’s consent by using them for profit-making purposes exceeds the socially permissible limit in the transaction society constituted by the fair and free competition doctrine, and thus, it is deemed that the Defendant’s act constitutes a tort under Article 750 of the Civil Act.

C. Scope of damages

(1) Property damage

The plaintiff asserts that the plaintiff suffered property damage equivalent to KRW 10 million due to the defendant's tort.

However, there is no evidence to acknowledge that the plaintiff suffered property damage due to the defendant's tort, and the plaintiff's above assertion is without merit.

(2) Mental damage

In full view of all the circumstances indicated in the argument of this case, including the circumstance where the Defendant, who took advantage of the research and clinical experience of the Plaintiff’s several years of competition with the intent of unjust enrichment, was engaged in the television broadcast, and the Defendant, upon receiving a transplant surgery from the Plaintiff and gave the Plaintiff consent to post his/her photograph on the homepage of the Plaintiff hospital, made a false statement as if he/she had conducted the instant pictures, and presented the instant pictures to the patient, it is reasonable to view that the amount of consolation money that the Defendant is liable to compensate the Plaintiff is KRW 20 million.

4. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 20 million won consolation money and to pay damages for delay at the rate of 5% per annum under the Civil Act from March 16, 2007 to June 21, 2007, which is the sentencing date of a copy of the complaint of this case sought by the plaintiff, clearly after the date of tort, to the plaintiff from March 16, 2007 to June 21, 2007, and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings.

Therefore, the plaintiff's claim is reasonable within the scope of the above recognition, and the remaining claims are dismissed as there is no reasonable ground.

Judges Lee Dong-sung (Presiding Judge)