Requirements for becoming a joint author of a work, and the meaning of “joint creation intention” here, where a single work is created by more than two persons to contribute to the creation in a successive order, the standard for determining whether they intend to create a joint creation, and where the prior author wishes to create a completed work with his own creation, whether the work completed by the subsequent author may be deemed a joint work (negative)

In a case where two or more persons create a single work which is not able to separately use the parts of each person’s contribution by jointly contributing to the creative expression form itself with the intention of joint creation, they shall be the co-authors of the work. Here, the intention of joint creation refers to the intention of creating a single work in which the parts of each person’s contribution cannot be separately exploited by means of a joint creation, not by means of a legal intent of joint creation.

In addition, in a case where two or more persons have created a single work by contributing to the creation in a successive order by different time, the previous author’s intent is to complete a single work which is impossible to be separated and used through the correction, increase or decrease, etc. of the subsequent author, and even the subsequent author is also willing to complete a single work which is impossible to be separated and used through the correction, increase or decrease, etc. of the previous author’s creative part based on the previous author’s creative part, they may be deemed to have the intention of joint creation to complete a single work by mutual supplementation of each creative part. On the other hand, if the previous author wishes not to have the above intent but to create a single work completed by himself/herself, and if a work is completed without the completion of a single work by correction, increase, or decrease, etc. of the subsequent author’s creative part, it cannot be deemed that the previous author and the subsequent author have the intention of joint creation between the previous author and the subsequent author. Therefore, even if the subsequent author’s creative work is completed after the completion of the work by the previous author’s original work.

Article 2 Subparag. 21, Article 5, and Article 136(1)1 of the Copyright Act

Supreme Court Decision 2012Do16066 Decided December 11, 2014 (Gong2015Sang, 154)

Defendant 1 and one other

Defendants

Attorney Yoon Hong-tae

Seoul Southern District Court Decision 2014No378 decided November 14, 2014

All appeals are dismissed.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 through 3

A. In a case where two or more persons have created a single work, in which the part of each person’s contribution cannot be separately used, by jointly contributing to the form of expression itself with the intention of joint creation, they shall be the co-author of the work. Here, the intent of joint creation refers not to legally intend to be a co-author, but to create a single work, in which the part of each person’s contribution cannot be separately used due to the act of joint creation (see Supreme Court Decision 2012Do1606, Dec. 11, 2014).

In addition, in a case where two or more persons have created a single work by contributing to the creation in a successive order by different time, the previous author’s intent is to complete a single work which is impossible to be separated and used through the correction, increase or decrease, etc. of the subsequent author, and even the subsequent author is also willing to complete a single work which is impossible to be separated and used through the correction, increase or decrease, etc. of the previous author’s creative part based on the previous author’s creative part, they may be deemed to have the intention of joint creation to complete a single work by mutual supplementation of each creative part. On the other hand, even if the previous author’s creative part is not the above intent but the previous author’s intent to create a single work completed without the completion of a single work, joint creation between the previous author and the subsequent author cannot be deemed to have the intention of joint creation. Therefore, even if a single work is completed without the completion of a single work by correction, increase or decrease, etc. of the previous author’s creative part.

B. Review of the evidence and the reasoning of the lower judgment duly admitted by the lower court reveals the following.

1) Defendant 1 as the employee of ○○○○○○○○○○○○○, a general manager and planner of the “△△△△△” drama (hereinafter “instant drama”). Defendant 2 was the representative of Nonindicted 1 Limited Liability Company (hereinafter “Nonindicted 1 Company”) established for the production of the instant drama, and the Defendants agreed on and processed important matters for the production and publicity of the said drama together.

2) On July 30, 2009, the Defendants entered into a contract with Nonindicted Co. 2 and 32 minutes of the instant drama (hereinafter “instant contract”). The said contract is premised on the completion of the victim’s drama drama theater, unless the victim is partly unable to observe the schedule for the production and broadcast of the drama. In addition, the Defendants agreed to pre-consult with the victim on the content of the business and the terms of profit distribution prior to publication in the case of publishing the drama theater by noveling it into the said contract. On March 9, 2010, the Defendants concluded a contract with Nonindicted Co. 3 (hereinafter “Nonindicted Co. 3”) to publish each of the instant drama’s drama in order to promote the said drama’s publication. Meanwhile, the content of the instant contract with the victim’s author’s property right as the party to the instant drama’s property right as the party to the instant contract.

3) While the victim prepared part of the main text of the instant writing contract 32/32 expected in advance (hereinafter among the facts constituting the instant crime, the part of the main text of the instant copyrighted works, which was specified as the object of infringement on the right to prepare secondary copyrighted works, was notified of the termination of the instant writing contract, the Defendants notified the instant Defendants that they would not use their existing work performance in response thereto, and filed a lawsuit against the instant company seeking penalty for breach of contract by notifying the instant company of the termination of the writing contract. The first instance court and the appellate court of the instant civil case acknowledged that the instant company arbitrarily terminated the instant writing contract and ordered the damages to the instant company by recognizing that the instant company had caused damages to the victim, and the judgment became final and conclusive as Supreme Court Decision 2012Da58913 Decided October 11, 2012.

4) On October 4, 2010, the main text of the instant drama was completed 32 minutes by another author after the notice of termination of the instant contract based on the part created by the victim (hereinafter the completed drama was referred to as the “the entire main text of the instant drama”). The Defendants, upon the communication from Nonindicted Co. 3 on October 4, 2010, demanded the original author of the said novel to be published by indicating it as “○○○ Special Planning & Planning Party (△△△△△△△)” without notifying the victims or requesting the suspension of publication, without notifying Nonindicted Co. 3 of the communication that the instant drama will be published in coloring the main text of the instant drama.

C. We examine the above circumstances in light of the legal principles as seen earlier.

Unless there are special circumstances in the writing contract of this case, the victim agreed to complete the drama of this case, as well as the victim was notified by the Defendants of the termination of the writing contract of this case without any specific cause, and then notified the Defendants of the prohibition of the use of the drama drama, etc. corresponding thereto. Thus, even if the part created by the victim, including the victim’s theater, was part of the whole theater part of this case, and the remaining part cannot be used separately from the victim’s original part, the victim’s original part was a single work that is not completed as a single work, and it is not the victim’s intent to complete a single completed work that is impossible to be separated and used through the correction, increase, or decrease, etc. of the subsequent author’s original work, it cannot be deemed that the victim and the author who completed the whole drama of this case had the intent to make a single work completed by his own creation, and thus, the victim and the victim cannot be deemed as a joint work as a secondary work of the victim’s original work. Therefore, the whole theater of this case cannot be deemed as a joint work between the victim and the victim.

On the premise that the entire dramatic part of the instant case is a joint work, the argument in the grounds of appeal purporting that the Defendants, even if the novel was published without agreement with the victim, did not constitute an act infringing the victim’s author’s property right, and contrary thereto, the lower court erred by misapprehending the legal doctrine on the establishment of a joint work cannot be accepted.

2. Regarding ground of appeal No. 4

In light of all the circumstances, such as the contents of the writing contract of this case, the status of the defendants and the relationship with the victim, the reason why the novel of this case was published, and the degree of attention to the publication of the novel of this case, which are acknowledged by the evidence duly adopted by the court below, the defendants can be acknowledged as having intention to infringe on copyright, and there is no justifiable reason for the defendants to believe that their actions do not infringe on copyright. The judgment below is just, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on intentional recognition in copyright infringement.

3. Conclusion

Therefore, all appeals are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)