[1] The meaning of “original production,” which is the requirement for “work” as stipulated in Article 2 subparag. 1 of the Copyright Act, and the case where the creative nature of a reduced model can be recognized in the actual existing structure

[2] Criteria to determine whether there exists a substantial similarity between a reduced model work of a building and a work subject to comparison

[3] The method to determine whether the infringement of the right of reproduction or the right of production of derivative works under the Copyright Act is recognized as an element for establishing the infringement

[1] Article 2 Subparag. 1 of the Copyright Act defines a work as “a creative production that expresses human thoughts or emotions” and requires creativity. Even if creativity does not require complete originality, an author’s own expression of his or her thoughts or emotions should be deemed not to have copied another’s work but to be recognized as creative.

In the process of a reduced model of a building that actually exists is able to transform the shape, pattern, proportion, color, etc. of a building in the process of realizing the form of a model by reducing the actual building, and may manifest characteristics or characteristics distinct from the actual building according to the degree of transformation. Therefore, in a case where a reduced model of a building that actually exists is merely merely alleviated or minorly modified as a result of faithfully reproducing the actual building, it is difficult to recognize creativity. However, if a reduced model of a building that actually exists beyond such degree shows characteristics or characteristics distinct from the actual building, it may be recognized as creative and protected as a copyrighted work.

[2] In determining whether there exists a substantial similarity between two copyrighted works in order to determine whether a copyright has been infringed or not, the comparison should be made only with those falling under the creative expression form. Therefore, in determining whether there exists a substantial similarity between a reduced model work and a copyrighted work that is compared with a copyrighted work, the comparison should be made with the parts newly added in the process of realizing the original structure in the form of a model, not with the creative expression of the original structure.

[3] In order to establish the infringement of the right of reproduction or the right of production of derivative works protected by the Copyright Act, it should be recognized that a work is produced based on an existing work claimed that the work is infringed. Such relationship can be presumed to be recognized where the accessibility to the existing work and the similarity between the work in question and the existing work are recognized.

[1] Article 2 subparag. 1 of the Copyright Act / [2] Article 5(1) of the Copyright Act / [3] Article 2 subparag. 1 and 22 of the Copyright Act, Articles 5(1), 16, 22, 123, and 125 of the Copyright Act

[1] Supreme Court Decision 2009Do291 Decided February 10, 201 (Gong2011Sang, 594) (Gong2011Sang, 594) Supreme Court Decision 2014Da49180 Decided November 9, 2017 (Gong2017Ha, 2296) / [2] Supreme Court Decision 2005Da44138 Decided March 29, 2007 (Gong2007Sang, 605) Supreme Court Decision 201Do3599 Decided August 22, 2013 (Gong2013Ha, 1716) / [3] Supreme Court Decision 2013Da8984 Decided July 24, 2014

ScaS Co., Ltd. (U.S. Law Firm, Attorneys Jeon-tae et al., Counsel for the plaintiff-appellant)

Defendant 1 and four others (Law Firm Han River et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2015Na2015274 decided May 12, 2016

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the third ground for appeal

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 reproduction of another’s work, and must include the author’s own expression of ideas or emotions (see, e.g., Supreme Court Decisions 2009Do291, Feb. 10, 201; 2014Da49180, Nov. 9, 2017).

In the process of a reduced model of a building that actually exists is able to transform the shape, pattern, proportion, color, etc. of a building in the process of realizing the form of a model by reducing the actual building, and may manifest characteristics or characteristics distinct from the actual building according to the degree of transformation. Therefore, in a case where a reduced model of a building that actually exists is merely merely alleviated or minorly modified as a result of faithfully reproducing the actual building, it is difficult to recognize creativity. However, if a reduced model of a building that actually exists beyond such degree shows characteristics or characteristics distinct from the actual building, it may be recognized as creative and protected as a copyrighted work.

The lower court determined as follows: (a) the Plaintiff’s light language (section 2 and 4) model as indicated in the judgment of the lower court did not reduce the actual luminous text as it was in the process of embodying the form of a model by reducing the actual luminous text; (b) rather, it did not reduce the actual luminous text of the roof in the process of embodying the form of a model; (c) rather, determined that the Plaintiff’s light language (section 2 and 4) model was causing minor changes exceeding the minor degree through various parts, such as the ratio of the plastic wall to the roof, height, the roof structure, the gradient of the eaves, the roof color, the simpleization of the structures of the second floor, the window and the eaves of the second floor, the size of the door flag, and the shape of the middle door. Furthermore, the lower court determined to the effect that creativity may be recognized

In light of the aforementioned legal principles and the evidence duly admitted by the court below, the above determination by the court below is just, and there is no error in the misapprehension of legal principles as to creativity, contrary to what is alleged in the

2. As to the fourth ground for appeal

In determining whether there exists a substantial similarity between two copyrighted works in order to determine whether a copyright has been infringed or not, the comparison ought to be made only with those falling under the form of creative expression. Therefore, in determining whether there exists a substantial similarity between a reduced model work of a building and a copyrighted work that is the object of comparison, the comparison ought to be made with the parts that correspond to a newly added creative expression in the process of realizing the original building in the form of a model, not with a creative expression of the original building (see, e.g., Supreme Court Decisions 2005Da44138, Mar. 29, 2007; 201Do3599, Aug. 22, 2013).

The lower court determined to the effect that since creative expressions appearing in the Plaintiff’s Mine Language (2 & 4th page) model are shown in the Defendants’ sublime pattern (2th page) model as indicated in the lower judgment, the lower court recognized a substantial similarity between the Plaintiff’s opticalology (2 and 4th page) model and the Defendants’ noble rites (2nd page) model.

In light of the above legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by

3. Regarding ground of appeal No. 2

In order to establish the infringement of the right of reproduction or the right of production of derivative works protected by the Copyright Act, it should be recognized that a work is produced based on an existing work claimed that the work is infringed. Accordingly, the relationship can be presumed to have been recognized where the accessibility to the existing work and the similarity between the work in question and the existing work (see Supreme Court Decision 2013Da8984, Jul. 24, 2014, etc.).

The lower court determined to the effect that Defendant 1, Defendant 2, Defendant 3, and Defendant 4, as an employee of the Plaintiff, may be recognized as having been written in accordance with the Plaintiff’s opticalology (section 2 and No. 4) model, on the ground that the Plaintiff’s opticalology (section 2 and No. 4) model was recognized as having been accessible to the Plaintiff’s opticalology (section 2 and No. 4) model in light of the Plaintiff’s establishment of Defendant Cracker Co., Ltd. and the Defendants’ noble style (section 2 and No. 4) model and the Plaintiff’s opticalology (section 2 and No. 4) model were similar.

In light of the above legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or

4. Regarding ground of appeal No. 1

Examining the relevant legal principles and the evidence duly admitted by the court below, the court below was just in holding that the Defendants’ manufacturing and selling the sublime style (section 2) model constituted the Plaintiff’s act of infringing the Plaintiff’s intellectual property right on the optical (section 2 and No. 4) model, and contrary to what is alleged in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules or by misapprehending

5. Ground of appeal No. 5

In light of the relevant legal principles and records, the court below is just to calculate the amount of damages pursuant to Article 125 of the Copyright Act, considering that it is difficult to calculate the amount of damages pursuant to the provision of Article 125 of the Copyright Act on the grounds as stated in its holding, comprehensively taking into account the facts revealed by the result of investigation of evidence and the purport of whole

6. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)