(영문) 서울고등법원 2017.6.22.선고 2015나25893 판결

The judgment of the court of first instance is revoked. The defendants shall not sell, distribute, advertise, deliver, or deliver "D Phonograms" recorded in Attachment 2, and (2) shall not reproduce, distribute, transmit, or lend m3 and digital files in the form of chip, such as mail, produced as a sound source with the music of [Attachment 2], and (3) jointly and severally pay to the plaintiff the amount of KRW 21,00,000 and the amount of 5% per annum from July 29, 2013 to the delivery date of a copy of the complaint of this case, and the amount of money calculated by 20% per annum from the next day to the day of full payment.

Reasons

1. Basic facts

A. Status of the parties

1) The Plaintiff, as a musicians from around 2003, participated in the “E” of the 201st and around 2012, in the music activities of the writers.

2) Defendant B (e.g., the title F) was well-known from “H”, an open-use program organized by G, a music-specialized cable broadcasting company around 2012, and was engaged in waterway activities.

3) Defendant C Co., Ltd. (hereinafter “Defendant C Co., Ltd”) is a corporation whose establishment registration was completed on September 15, 2010 for the purpose of producing and selling music records.

B. On July 25, 2012, the Plaintiff created a musical work in the title “I”, “Chosian Mussian,CCM,” and made a copyright registration (work registration number K) with the Korea Copyright Commission as the author. The musical work is as shown in attached Table 1 (hereinafter “Plaintiff”).

C. The defendants' musical works

Around April 22, 2013, Defendant B published a musical work in the title “M,” “a person himself/herself and L,” and then registered the music source thereof with the Korea Music Copyright Association. Around that time, Defendant Company has produced and sold a music record “D” in which the said music work was recorded. The music record of the said music work is as shown in attached Table 2 (hereinafter referred to as “Defendant’s musical work,” and “Defendant’s music record”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1 through 4, 6 (including each number, if any), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

1) The Plaintiff’s musical work constitutes a musical work subject to protection under the Copyright Act, which is the Plaintiff’s creative and creative expression.

2) On July 25, 2012, the Plaintiff: (a) performed the Plaintiff’s musical work in a team of “AC” with seven team members at the time of writing and singing the Plaintiff’s musical work; (b) sent the music file to N who was engaged in the Plaintiff’s musical work as a master book; (c) from that time to December 2012, the Plaintiff sent the music file to N along with N to the Plaintiff’s musical work.

3) However, among the above team members, the group delivered the Plaintiff’s musical work musical work or its original file to the Defendant Company or the Defendant’s musical work, and Defendant B and L produced the Defendant’s musical work based on the above musical work or the sound source file, and the Defendant Company produced and sold the Defendant’s musical work including the Defendant’s musical work.

4) The Defendant’s musical work is plagiarism for the following reasons.

A) ① The 2mad portion of the Plaintiff’s musical work’s introduction (hereinafter “the Plaintiff’s creation”) and the 26-27mad portion of the Defendant’s musical work (hereinafter “the Defendant’s 1”) and the 26-27mad portion of the Plaintiff’s musical work (hereinafter “the Plaintiff’s 2-Mad portion”) and the 3-Mad portion of the Defendant’s musical work (hereinafter “the Defendant’s 2-Mad portion”) are identical or similar to each corresponding case’s musical work (the creation of the Defendant’s musical work needs to be transferred to the Plaintiff’s creation of the Plaintiff’s musical work in comparison with the original EM or the Plaintiff’s musical work’s similarity with the creation of the Plaintiff’s musical work, and this musical work is as shown in attached Table 3. The Defendant’s 3-Mad portion of the Plaintiff’s musical work and the Defendant’s 3-Mad portion compared to the Plaintiff’s musical work).

A person shall be appointed.

B) The Plaintiff’s musical work and the Defendant’s musical work are the same as rhythm of each agreement.

C) The 4mad parts of the Plaintiff’s musical work’s introduction (hereinafter “part 1-1”) and the 4mad parts of the Defendant’s musical work’s introduction (hereinafter “part 1-1”) and the 35mad parts of the Plaintiff’s musical work (hereinafter “part 2-2 of the Plaintiff’s preparation”) and the 2-2 Mad parts of the Defendant’s 8mad parts (hereinafter “Defendant’s preparation”) are identical or similar to each other.

Report of the part against the plaintiff and the part against the defendant

A person shall be appointed.

5) As such, the Defendants infringed the Plaintiff’s copyright by plagiarism the Plaintiff’s musical work and producing and publishing the Defendant’s musical work. The Defendants sought (1) prohibition of the sale, etc. of the Defendant’s musical work’s musical work’s musical work’s musical source, and (2) prohibition of reproduction, etc. of the digital file produced as the Defendant’s musical work’s musical work’s musical source, and sought payment of KRW 21,00,000 and damages for delay jointly and severally as part of the compensation for damages.

B. Defendant’s assertion

1) The above part of the Plaintiff’s assertion can not be seen as a creative expression of the Plaintiff as it constitutes an expression such as a commercial instrument used previously prior to the production of the Plaintiff’s musical work.

2) The Plaintiff’s musical work did not have been announced to the public through a public performance or a sale of music records, and was registered after the publication of the Defendant’s musical work. The Defendants did not have an opportunity to receive the Plaintiff’s musical work prior to the production and publication of the Defendant’s musical work. Therefore, the Defendant’s musical work cannot be deemed to have been produced based on

3) There is no substantial similarity between the Plaintiff’s compared part and the Defendant’s compared part in the process of rhythm, harmony and rhym.

3. Determination

A. Whether the plaintiff's musical work is creative

1) Relevant legal principles

If an original is considered as a whole, the validity of the right to reproduction, etc. of the original work does not extend to any portion of the expression that is not creative among the contents thereof. Therefore, in a copyright infringement lawsuit against a musical work, if a part of the original is disputed that the entire original is reproduced on the other party’s work, then whether the part disputing whether the infringement of the original work constitutes a creative expression ought to be first examined (see, e.g., Supreme Court Decision 2010Da70520, Aug. 30, 2012).

Article 2 Subparag. 1 of the Copyright Act provides that “a creative production that expresses human thoughts or emotions.” “a creative production” referred to in the aforementioned provision refers to a work that has originality, and “originality” refers to a work that does not require complete originality, but at least a certain work must include the expression of an original idea or emotions of the author, rather than merely imitate the work of another (see, e.g., Supreme Court Decision 2009Do291, Feb. 10, 201).

On the other hand, musical works generally consisting of three elements, such as rhythm and rhythm, and rhythm, and a musical structure by selecting and arranging these three elements according to certain order. Therefore, in determining the creativity of a musical work, it shall be determined by comprehensively taking into account all the elements, such as rhythm and rhythm, which are expressed in the most specific and original form in the expression of a musical work (see, e.g., Supreme Court Decision 2013Da14828, Aug. 13, 2015). Furthermore, a musical work has a limit in its available location, and thus, it shall be jointly owned, and if it is recognized that a part of a musical work is merely a common expression shared by the public, such part shall not be protected under the Copyright Act.

2) Determination

With respect to whether the above part of the plaintiff's comparison is creative enough to be protected under the Copyright Act, each of Gap's No. 15 (the plaintiff's musical work's musical work's musical work's musical work's musical work's musical work's musical work's musical work's musical work's musical work's musical work's musical work's musical work's musical work'

A) In the case of Plaintiff 1

(1) The rhythm, rhym and harmony of the part against the plaintiff 1

A person shall be appointed.

The rhythm of the Plaintiff’s compared part 1 is expressed in length from each stage of the village, namely, that is, the rhythm of the village. The Plaintiff asserts to the effect that the Plaintiff’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s musical work’s presentation of the above code is ordinary, but it is infinite if it takes place with the immediately preceding part of the Plaintiff’s 1’s 'IG’ code’. However, according to the statement of the result of the appraisal commission with the Korea Copyright Commission’s appraisal commission, the Plaintiff’s assertion that the sound is not accepted as the Plaintiff’s musical work’s work’s first used in the musical work’s musical work’s work.

(2) The comparison and production of musical works with similar musical works refers to an individual musical story or set. It is intended to compare the Plaintiff’s comparison with each other based on the sound height and length (i.e., musical instruments other than individual Madles1) of each comparable group (i.e., pitch). The same is to be determined based on an individual musical instrument (i.e., musical instruments).

① The musical work referred to in the title “(i)” (ii) is published by Q around December 1, 1991, and is as follows, compared with the result of the introduction of the musical work and the one of the parts compared to the plaintiff(s).

A person shall be appointed.

The first musical instrument of the plaintiff 1 is part of Sorararadide, the second musical instrument is part of Soradide, and the second musical instrument is part of Soradide. The first musical instrument of the comparison 1 is part of Soradide Soradide, and the second musical instrument is part of " Soradide Soradide", and the second musical instrument is part of " Soradide Soradide". According to the above table, the first musical instrument of the plaintiff 1 and the comparison 1 are partly different, but the first musical instrument is deemed to be similar, and the second musical instrument is partially identical, but the creation method is not similar.

② A musical work referred to in the title “V” (as the musical work referred to in the title 5-2, hereinafter referred to as “V”) is announced by the gas propell group around April 15, 200 on or around April 15, 200, and is as follows in comparison with the price of the imported musical work and the price of the Plaintiff.

A person shall be appointed.

The first musical part of the plaintiff 1's comparison part is the part of Sorarararadide, the second musical part is the Soradoradide. The first musical part of the comparison 2 is the part of Soradide Soradide, and the second musical part is the part of " Soradide Soradide", and the second musical part is the part of "Manadidedora". According to the entry of the above table, the part against the plaintiff 1 and the comparative part 2 are not recognized as similar.

③ The musical work of the title “T” (hereinafter referred to as “T” No. 5-3, hereinafter referred to as “T”) is published through the OST phonogram of the “SU” around March 8, 2012, and is as follows in comparison with the musical work of the Clorost and the Plaintiff’s composition.

A person shall be appointed.

The first musical section 1 of the comparison part of the plaintiff is the part of Sorararadide, the second musical instrument is the part of Soradide, the second musical instrument is the part of Soradide radide. The first musical instrument of the comparison 3 is the part of Soradide radide radide, the second musical instrument is the part of " Soradide radide radide", and the second musical instrument is the part of " Soradide nadide". According to the above list, the first musical instrument of the plaintiff 1 and the comparison 3 is partially different, but it is recognized that the first musical instrument is similar, and the second musical instrument is partially identical, but the development method is not similar.

④ The musical work of the title “R” (as the musical work No. 5-4, hereinafter referred to as “R 4”) is published through the OST phonogram of the “S” around July 25, 2007, and is as follows in comparison with the price of the imported book and the price of the Plaintiff.

A person shall be appointed.

The first musical instrument of the plaintiff 1 is the part of the Sorarararadide, the second musical instrument is the part of the Soraradide. The first musical instrument of the comparative 4 is the part of the Soradradide Soradide, and the second musical instrument is the part of the Soradide Soradide, and the second musical instrument is the part of the "Smidide". According to the above table, the first musical instrument of the plaintiff 1 and the comparison 4 are partly different in the length of each musical instrument, but the first musical instrument of the plaintiff 4 is recognized to be similar, and the second musical instrument is partially identical, but different in the method of creation, but it is not recognized to be similar.

⑤ The musical work of the title “AD” (as the musical work of the title 5-5, hereinafter referred to as “5-2, hereinafter referred to as “AD”) is published by AE around June 25, 1994, and is as follows in comparison with the musical work of the adopted body and the one of the parts compared to the plaintiff:

A person shall be appointed.

The first musical part of the plaintiff 1's comparison part is the part of Sorarararadide, and the second musical part is the part of Soradoradide. The comparison 5 consists of a single musical instrument of " Soradide Soradide" part. According to the above table, the plaintiff 1 and comparative 5 are not recognized as similar.

6. The musical work of the title "AF" (as referred to in No. 5-6, hereinafter referred to as "the title 6") is published by AG around 1975 and is as follows in comparison with the fall of the original part of the introduction and the fall of the plaintiff.

A person shall be appointed.

The first musical part of the plaintiff 1's comparison part is the part of ' Sorararadide', and the second musical part is the part of ' Soradoradide'. The comparative 6 consists of a single musical instrument of ' Soradide Soradide'. According to the above table, the plaintiff 1 and the comparative 6 are not recognized as similar.

① As seen earlier, the price of the Plaintiff’s portion 1 does not correspond to the price of each of the comparison parts 2, 5, and 6 compared to the comparison parts 1, 3, and 4. However, in comparison with each of the comparison parts of the comparison items 1, 3, and 4, the first musical instrument is recognized as similarity, and the second musical instrument is not recognized as similarity. Therefore, the price of the Plaintiff’s portion 1 is recognized as creative in the sense that the whole of the comparison parts does not imitate South and North, but contains the expression of the Plaintiff’s own appraisal.

(3) As to the creativity of rhym

A person shall be appointed.

C. However, according to the record of the appraisal commission of the Korea Copyright Commission of this Court, the rhythm of the Plaintiff’s rhythm is generated from the length of each rhythm of the rhym of the rhym of the rhym of the rhym of the rhym of the rhym of the rhym and the rym

However, according to the above legal principles, the elements expressed in the most specific and original form in the case of musical works shall fall, and rhyth of time and emphasis may be adjusted to a certain extent, but since the diversity of rhyth of music is restricted in light of music practice, there is little room for recognizing creativity. In the case of rhyth of the part 1 in the plaintiff's preparation, creativity is not recognized as it is merely rhyth of the length of each rh of the rhyth of the rhy.

(4) Comparison with similar musical works

① In comparison with the harmony of “Jhn Pachelbel” written by Jhn in the 17th century and the harmony of so-called “Moneoneoneth Chm2” in modern popular music, the similarity of harmony is recognized as follows.

A person shall be appointed.

The musical work of the title "Y" (hereinafter referred to as "the musical work of Nos. 7-1, hereinafter referred to as "No. 7") is a musical musical musical work published in around 2000, and when comparing the compatibility between the introduction of the musical work and the compatibility of No. 1 in the part against the plaintiff, it is recognized that the similarity of compatibility is as follows:

A person shall be appointed.

③ The musical work referred to in the title “Z” (hereinafter referred to as “Z” as “Z”) is the musical musical music published in around 2003, which is the original musical music, and is not recognized as similar as follows, in comparison with the compatibility of the introduction of the musical work and the compatibility of the portion of the plaintiff 1.

A person shall be appointed.

④ The musical work of the title “AH” (as the musical musical work of No. 7-3, hereinafter referred to as “No. 9”) is a musical musical musical musical work published in around 2000, which is similar to that of the Plaintiff in comparison with the compatibility of the introduction of the musical work and the compatibility of the portion No. 1 of the Plaintiff.

A person shall be appointed.

⑤ The musical work of the title “A” (as the musical work of No. 7-4, hereinafter referred to as “No. 10”) is a musical musical music published in around 2001, which is recognized as similar to the following, in comparison with the compatibility of the introduction of the musical work and the compatibility of the portion No. 1 in comparison with the Plaintiff:

A person shall be appointed.

④ The musical work of the title “AI” (hereinafter referred to as “AI No. 7-5, hereinafter referred to as “the subject-matter 11”) is a musical musical music published in around 1984, and when comparing the harmony between the introduction of the musical work and the compatibility of the portion of the plaintiff 1, it is recognized as similar as follows.

A person shall be appointed.

7) The musical work of the title "AJ" (as the musical work of No. 7-6, hereinafter referred to as "No. 7-6, hereinafter referred to as "no. 12") is a musical musical music published in around 2006, and when comparing the compatibility of the introduction and the compatibility of No. 1 of the part against the plaintiff, it is recognized as similar.

A person shall be appointed.

③ As seen earlier, the compatibility of the Plaintiff’s portion 1 is recognized in comparison with the harmony of each of the comparison parts of capital code, machine code, comparable 7, 10, 11, and 12. As such, a partial change (Am/G part) caused by the Plaintiff’s comparison part 1 does not reach the level of universal compatibility that is generally shared plus new creativity. Accordingly, the compatibility of the Plaintiff’s comparison part 1 does not constitute a creative expression.

(5) Sub-decisions

Thus, rhym and rhym are creative expressions in the case of plaintiff 1, while rhym and rhym are not creative expressions.

B) In the case of part against the plaintiff 2

A person shall be appointed.

First of all, we examine the coming of the part 2 of the plaintiff's comparison. The fall of the part 2 of the plaintiff's comparison consists of a harmony tone, and emphasizes the expansion of appraisal through a sound tone through the progress of medication - maintenance, maintenance (Si - Si - Do) and the progress in succession (Si - Do). As such, arranging a harmony with a sex tone is a universal creation method, but it is difficult to find a result identical or similar to the fall of the part 2's quotation, unlike the record, in light of the fact that it is difficult to find it differently, it is recognized as creative under the Copyright Act in the sense that the coming of the part 2 of the plaintiff's comparison does not imitate the other's own expression of the plaintiff's own appraisal without reproducing it as a whole, and thus, it is recognized as creative in the sense that it contains the expression of the plaintiff's own independent appraisal.

Next, creativity is not recognized for the same reasons as the part 1 of the plaintiff's rhythm of the part 2 against the plaintiff.

Finally, as to the compatibility of the part against the plaintiff 2, the compatibility of the part against the plaintiff 2 is recognized in comparison with the compatibility of the parts against the plaintiff 7, 10, 11, and 12 as seen earlier. Therefore, it cannot be viewed as a creative expression.

Thus, even in the case of the plaintiff 2, garrement is a creative expression, while rhythm is not a creative expression.

C) Sub-determination

Ultimately, among the elements of the Plaintiff’s 1 and 2 disputing the reproduction of Defendant’s musical work, it is clear that the Plaintiff expressed his own emotions by producing the Plaintiff’s own effort and musical talent, and otherwise, the Plaintiff’s production of the Plaintiff’s musical work based on another musical work infringed on another’s copyright by itself, or the Plaintiff’s comparison portion became an area of sharing by being exposed to the general public for a long time. On the other hand, the Plaintiff’s 1 and 2’s harmony and rhyth portion were used for numerous musical works for a long time, and became an area of sharing by being exposed to the general public. However, in full view of all the elements such as rhythm and harmony, it constitutes the part of the Plaintiff’s preparation and the part protected under the Copyright Act in the case of the Plaintiff’s 1 and 2.

B. Whether to recognize substantial similarity

1) Relevant legal principles

The subject of copyright protection is a creative expression form that specifically expresses ideas or emotions obtained through human mental efforts with respect to learning and art, and the contents expressed, i.e., ideas or theories, etc., are not subject to copyright protection in principle, even if they have originality and originality. Thus, in order to determine whether copyright infringement exists, only those falling under creative expression form should be compared (see, e.g., Supreme Court Decision 2007Da354, May 28, 2009). Meanwhile, musical works should be the combination of musical works that directly appeal for appraisal through human hearing, which can cause public sentiment to be able to appeal for human sentiment, and such combination of musical works should be made within the scope of mixing with those of public sentiment that are substantially similar to the above combination of musical works (see, e.g., Supreme Court Decision 2007Da354, May 28, 2009).

2) Determination

We examine whether the plaintiff's musical work and the defendant's musical work are substantially similar to Gap's musical work by adding up the contents of Gap's No. 15 (the plaintiff's musical work's musical work's musical work's musical work's musical work's musical work's musical work's musical work's musical work's musical work's musical work's writing and the whole purport of the argument's result of appraisal commission to the Korea Copyright Commission (the plaintiff's musical work's musical work's development act's development act). However, it is argued that the plaintiff's musical work's musical work and defendant's musical work's musical work's musical work's whole is identical or similar to

A) Comparison between the plaintiff 1 and the defendant 1

As seen earlier, in the case of Plaintiff 1, the creative expression form that has the effect of copyright is in progress. Accordingly, this paper examines whether the part against the Defendant 1 is substantial similarity.

Part 1 to prepare for the plaintiff and part 1 to prepare for the defendant.

A person shall be appointed.

In comparison with the price of the plaintiff 1 and the price of the defendant 1, the following conditions are as follows.

A person shall be appointed.

On the other hand, the first part of the plaintiff's first part of the 1st century, the second part of the 2nd century, the second part of the 1st century, the second part of the 2nd century, and the second part of the 1st century, the second part of the 2nd century, and the second part of the 1st century, the second part of the 2nd century, and the second part of the 2nd century, the first part of the 1st century and the defendant were the same as the first part of the 2nd century, but the second part of the 2nd century, the second part of the 1st century and the second part of the 2nd century, the second part of the appraisal of the 1st century, the second part of the 2nd century, the second part of the appraisal of the 2nd century, and the second part of the 1st century, the second part of the appraisal of the 2nd century, and the second part of the appraisal of the 2nd century, the second part of the 2nd century.

As seen above, the first musical instrument is partially similar to the Plaintiff’s 1’s village and the Defendant’s 1’s village. However, the creation method of the village connecting the musical instruments with the second musical instrument is different from the second musical instrument, and the second musical instrument is different from the appraisal method of the musical instrument. Furthermore, even if a part of the musical instrument is changed, the flow of the village is changed due to the change, and the overall atmosphere of the musical work and the appraisal of the listen person are changed as a result, by having a significant impact on the following parts, and the overall atmosphere of the musical work and the appraisal of the listen person are also changed. In addition, there is no evidence to acknowledge this differently.

B) Comparison between the plaintiff 2 and the defendant 2

As seen earlier, in the case of Plaintiff 2, the creative expression form that has the effect of copyright is in progress. Accordingly, this paper examines whether the part against the Defendant 2 is substantial similarity.

The part against the plaintiff 2 and the part against the defendant 2

A person shall be appointed.

In comparison with the price of the part against the plaintiff 2 in comparison with the price of the defendant 2, the price of the part against the plaintiff 2 is as follows.

A person shall be appointed.

The first part of the plaintiff 2's "City/Do 1" and the second part of the "City/Do 2" are the second part of the "Gu 2". The second part of the "Gu 2" is the second part of the "Gu 2" and the second part of the "Gu 2" is the first part of the "Gu 2". According to the above table, the first part of the plaintiff 2 is the first part of the Gu 2's "Gu 17-18 Edd. 21 to 22 Ed. 3, and the first part of the "Gu 2" is the first part of the "Gu 2' Ed. - 2' Ed. 1' Ed. 2' Ed.

In light of the above, the fall between the plaintiff 2 and the defendant 2 is not substantially similar.

C) As to the similarity of rhythm and harmony

The plaintiff's musical work and the defendant's musical work are identical with rhyth of rhyth of rhyth of rhyth of rhyth of rhyth of rhyth of ryth of ryth of ryth of ryth of ryth of ryth of ryth of ryth of ryth of ryth of ryth of ryth of ryth of ryth and ryth of ryth of ryth of ryth of ryth of ryth of ryth of ryth of ryth of ryth of ryth of

D) Sub-committee

위 사정들에 비추어 보면, 위와 같이 원고 음악저작물과 피고 음악저작물의 가락이 실질적으로 유사하다고 인정되지 아니하므로, 설령 리듬 · 화성이 실질적으로 유사하다 하더라도, 위 세 요소를 종합적으로 고려하여 보면, 갑 제11, 19, 20호증의 각 기재만으로는 원고 음악저작물과 피고 음악저작물이 실질적으로 유사하다고 인정하기에 부족하고, 달리 이를 인정할 증거가 없다(한편 원고는, 이 법원의 한국저작권위원회에 대한 감정촉탁결과에 대하여 ① 핵심이 되는 첫째 악구가 동일하다면 둘째 악구에 다소 차이가 있더라도 전체적으로는 유사성이 있다고 보아야 함에도 원고 대비 부분 1의 가락과 피고 대비부분 1의 가락을 비교하면서 가락의 유사성을 인정하지 아니한 점(원·피고 대비부분 1 판단 부분), ② '가락'의 개념을 '개별 음의 고저 또는 장단'을 가리킨다고 설시하면서도 원고 대비부분 2의 가락과 피고 대비부분 2의 가락을 비교하면서 음의 장단에 대한 비교는 전혀 하지 아니한 점(원·피고 대비부분 2 판단 부분), ③ 원고 음악저작물의 화성과 피고 음악저작물의 화성은 모두 음악에서 흔히 사용되는 캐논코드로 진행되기는 하나, 원·피고의 음악저작물 사이에 가락의 유사성이 높기 때문에 화성마저 동일하다는 사실은 실질적 유사성을 인정할 수 있는 근거가 되는 점(화성 판단 부분), ④ 한 곡 내에서 중간에 리듬이 바뀌는 경우는 거의 없으므로 감정에 제공된 자료(원고 음악저작물 악보의 간주 부분인 1 내지 8마디)만으로도 원고 음악저작물의 리듬이 '컨트리 리듬'이라는 사실을 충분히 인정할 수 있음에도 원고 음악저작물의 리듬에 대한 판단을 보류한 점(리듬 판단 부분) 등에 비추어 원고 음악저작물과 피고 음악저작물 사이의 실질적 유사성을 부정한 위 감정 결과는 부당하다는 취지로 주장한다(2017. 3. 9.자 원고 준비서면), 살피건대, 음악저작물의 실질적 유사성은 듣는 사람의 느낌과 관념을 기준으로 전체적으로 판단되어야 하며, 앞서 본 법리와 같이 사람의 가청범위나 가성범위 내에서 사람들이 선호하는 감정과 느낌을 불러일으킬 수 있는 음의 배합에는 일정한 한계를 가질 수밖에 없으므로, 일부 유사한 부분이 있다고 하여 그러한 사정만으로 비교대상인 음악저작물과 실질적으로 유사하다고 단정할 수는 없는바, 설령 원·피고 대비부분 1의 첫째 악구 및 원·피고 대비부분 2의 개별 음의 장단이 유사하다고 하더라도 각 대비부분 사이에 앞서 본 바와 같이 다른 점도 상당 부분 존재하는 이상 각 대비부분이 반드시 실질적으로 유사하다고 단정할 수는 없다. 할 것이어서 위 ①, ②의 각 주장은 이유 없다. 또한 앞서 본 바와 같이 원고 음악저작물의 구성요소 중 화성, 리듬은 원고의 창작적 표현으로 인정되지 않는 이상, 원고의 저작권의 효력은 원고 음악저작물의 화성, 리듬에까지는 미치지 않는다 할 것이어서, 설령 원고의 주장대로 원고 음악저작물의 리듬이 '컨트리 리듬'인 것으로 인정되고 그에 따라 원고 음악저작물과 피고 음악저작물의 각 화성, 리듬이 동일한 것으로 인정된다고 하더라도 이는 실질적 유사성 여부의 판단에 영향을 미치지 않는다. 따라서 위 ③, ④의 각 주장 역시 이유 없다. 위와 같은 사정에다가 감정인의 감정 결과는 그 감정방법 등이 경험칙에 반하거나 합리성이 없는 등의 현저한 잘못이 없는 한 이를 존중하여야 한다는 점(대법원 2012. 1. 12. 선고 2009다84608 판결 등 참조)까지 더하여 보면, 이 법원의 한국저작권위원회에 대한 감정촉탁 결과를 믿을 수 없다는 취지의 원고의 위 주장은 받아들일 수 없다..

4. Conclusion

The plaintiff's claim of this case shall be dismissed as it is without merit. The judgment of the court of first instance is just with this conclusion, and the plaintiff's appeal is dismissed as it is without merit.